Public services or competing producers? Fair competition or unfair state aid?
Services of general economic interest raise important political, economic and legal questions within the European Union.
We take a look at what the Treaty of Lisbon has to offer in this respect, and glimpse at the Commission's efforts to define the parameters in practice.
***
In the Treaty of Lisbon the intergovernmental conference repealed or reordered a number of provisions of the Treaty establishing the European Community (TEC), itself renamed the Treaty on the Functioning of the European Union (TFEU). See the Official Journal (OJ) 17.12.2007 C 306/48-49:
22) Articles 7 to 10 shall be repealed. Articles 11 and 11a shall be replaced by Article 10 of the Treaty on European Union and by Articles 280 A and 280 I of the Treaty on the Functioning of the European Union, as set out in this Treaty in point 22 of Article 1 above and in point 278 below.
23) The text of Article 12 shall become Article 16 D.
24) The text of Article 13 shall become Article 16 E. It shall be amended as set out below at point 33.
25) The text of Article 14 shall become Article 22a. It shall be amended as set out below at point 41.
26) The text of Article 15 shall become Article 22b. It shall be amended as set out below at point 42.
27) Article 16 shall be amended as follows:
(a) at the beginning, the words ‘Without prejudice to Articles 73, 86 and 87,’ shall be replaced by ‘Without prejudice to Article 3a of the Treaty on European Union or to Articles 73, 86 and 87 of this Treaty,’;
(b) at the end of the sentence, the words ‘and conditions which enable them to fulfil their missions’ shall be replaced by ‘and conditions, particularly economic and financial conditions, which enable them to fulfil their missions.’;
(c) the following new sentence shall be added:
‘The European Parliament and the Council, acting by means of regulations in accordance with the ordinary legislative procedure, shall establish these principles and set these conditions without prejudice to the competence of Member States, in compliance with the Treaties, to provide, to commission and to fund such services.’.
***
Let us see if a glance at the amendments would start to make some sense. The substance of the following repealed provisions does not disappear. What happens is a reordering between and within the treaties. For the latest consolidated version of the TEC, we go to OJ 29.12.2006 C 321 E, starting from page 46:
Article 7 TEC on the institutions of the European Community is repealed. The nearest corresponding provision is Article 9 of the amended Treaty on European Union, TEU (ToL), renumbered Article 13 TEU.
Article 8 TEC on the European System of Central Banks (ESCB) and the European Central Bank (ECB) is repealed. The substance is found in Article 9 TEU ToL, renumbered Article 13 TEU, and in Article 245a TFEU (ToL), renumbered Article 282 TFEU.
Article 9 TEC on the European Investment Bank (EIB) is repealed, but Articles 266 and 267 TEC are preserved with minor amendments as Articles 266 and 267 TFEU (ToL), renumbered Articles 308 and 309 TFEU.
Article 10 TEC on loyal cooperation is repealed. The substance is found in Article 3a(3) TEU (ToL), renumbered Article 4 TEU.
***
Article 11 TEC and Article 11a TEC on enhanced cooperation are replaced by TEU and TFEU provisions. The main principles are found in Article 10 TEU (ToL), renumbered Article 20 TEU. Detailed provisions on enhanced cooperation are found in Articles Articles 280a to 280i TFEU (ToL), renumbered Articles 326 to 334 TFEU.
***
The text of Article 12 TEC with the prohibition of discrimination on grounds of nationality becomes Article 16d TFEU (ToL), after renumbering Article 18 TFEU.
The text of Article 13 TEC on action to combat discrimination becomes the amended Article 16e TFEU (ToL), after renumbering Article 19 TFEU.
.
The text of Article 14 TEC on the progressive establishing of the internal market becomes the amended Article 22a TFEU (ToL), after renumbering Article 26 TFEU.
The text of Article 15 TEC on taking into account different development levels of member states while establishing the internal market and on temporary derogations becomes the amended Article 22b TFEU (ToL), Article 27 TFEU when renumbered.
***
We have now accounted for every Article until we reach point 27 of the IGC 2007, on Article 16 TEC. We start with a look at the current provision (OJ 29.12.2006 C 321 E/49):
Article 16 TEC
Without prejudice to Articles 73, 86 and 87, and given the place occupied by services of general economic interest in the shared values of the Union as well as their role in promoting social and territorial cohesion, the Community and the Member States, each within their respective powers and within the scope of application of this Treaty, shall take care that such services operate on the basis of principles and conditions which enable them to fulfil their missions.
***
Following the instructions given by the IGC 2007 we should arrive at a consolidated version of the amended provision, under Part One Principles, Title II Provisions having general application:
Article 16 TFEU (ToL), renumbered Article 14 TFEU
Without prejudice to Article 3a of the Treaty on European Union or to Articles 73, 86 and 87 of this Treaty, and given the place occupied by services of general economic interest in the shared values of the Union as well as their role in promoting social and territorial cohesion, the Union and the Member States, each within their respective powers and within the scope of application of the Treaties, shall take care that such services operate on the basis of principles and conditions, particularly economic and financial conditions, which enable them to fulfil their missions. The European Parliament and the Council, acting by means of regulations in accordance with the ordinary legislative procedure, shall establish these principles and set these conditions without prejudice to the competence of Member States, in compliance with the Treaties, to provide, to commission and to fund such services.
***
The European Convention proposed the following Article III-6 of the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/29):
Article III-6 Draft Constitution
Without prejudice to Articles III-55, III-56 and III-136, and given the place occupied by services of general economic interest as services to which all in the Union attribute value as well as their role in promoting social and territorial cohesion, the Union and the Member States, each within their respective powers and within the scope of application of the Constitution, shall take care that such services operate on the basis of principles and conditions, in particular economic and financial, which enable them to fulfil their missions. European laws shall define these principles and conditions.
***
The IGC 2004 agreed on the following Article III-122 in the Treaty establishing a Constitution for Europe (OJ 16.12.2004 C 310/56):
Article III-122 Constitution
Without prejudice to Articles I-5, III-166, III-167 and III-238, and given the place occupied by
services of general economic interest as services to which all in the Union attribute value as well as their role in promoting its social and territorial cohesion, the Union and the Member States, each within their respective competences and within the scope of application of the Constitution, shall take care that such services operate on the basis of principles and conditions, in particular economic and financial conditions, which enable them to fulfil their missions. European laws shall establish these principles and set these conditions without prejudice to the competence of Member States, in compliance with the Constitution, to provide, to commission and to fund such services.
***
We notice that the draft Constitution underlined that ‘all in the Union attribute value’ to services of general economic interest and added ‘in particular economic and financial’ to the principles and conditions.
In essence, the Constitution added a further admonition that the principles and conditions be established without prejudice to the competence of the member states, while retaining the present wording on ‘shared values of the Union’.
The other differences between the versions seem to be editorial in nature.
***
The IGC 2007 annexed a Protocol on services of general interest to the Lisbon Treaty (OJ 17.12.2007 C 306/156-157):
PROTOCOL
ON SERVICES OF GENERAL INTEREST
THE HIGH CONTRACTING PARTIES,
WISHING to emphasise the importance of services of general interest,
HAVE AGREED UPON the following interpretative 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 shared values of the Union in respect of services of general economic interest within the meaning of Article 16 of the Treaty on the Functioning of the European Union include in particular:
— the essential role and the wide discretion of national, regional and local authorities in providing, commissioning and organising services of general economic interest as closely as possible to the needs of the users;
— the diversity between various services of general economic interest and the differences in the needs and preferences of users that may result from different geographical, social or cultural situations;
— a high level of quality, safety and affordability, equal treatment and the promotion of universal access and of user rights.
Article 2
The provisions of the Treaties do not affect in any way the competence of Member States to provide, commission and organise non-economic services of general interest.
***
There are to concepts the reader should be aware of:
1) Services of general interest (SGIs)
2) Services of general economic interest (SGEIs)
Let us see what the Europa glossary gives us by the way of an introduction:
http://europa.eu/scadplus/glossary/index_en.htm
***
General-interest services
The glossary is being updated given the recent signing of the Treaty of Lisbon.
"General-interest services" are services considered to be in the general interest by the public authorities and accordingly subjected to specific public-service obligations. They include non-market services (e.g. compulsory education, social protection), obligations of the State (e.g. security and justice) and services of general economic interest (e.g. energy and communications). Article 86 of the Treaty (former Article 90) does not apply to the first two categories (non-market services and state obligations).
In May 2003 the European Commission adopted a Green Paper on services of general-interest in Europe. This opened a debate on the role of the European Union in promoting the supply of general-interest services, in defining their general-interest objectives and the way they are organised, financed and evaluated.
In May 2004 the Commission went on to issue a White Paper on services of general interest, in which it sets out the approach taken by the European Union to promoting the development of quality general-interest services. It presents the elements of a strategy to ensure that all citizens and firms in the Union have access to quality general-interest services at affordable prices. The Commission has decided to develop its sectoral approach without issuing a general directive for the moment.
***
Services of general economic interest
The glossary is being updated given the recent signing of the Treaty of Lisbon.
Services of general economic interest are commercial services of general economic utility, on which the public authorities therefore impose specific public-service obligations (Article 86 of the EC Treaty, formerly Article 90). Transport, energy and communications services are prime examples.
Article 16, which was written into the EC Treaty by the Treaty of Amsterdam, acknowledges the place occupied by services of general economic interest in the shared values of the Union and their role in promoting social and territorial cohesion. Article 16 also states that such services must operate on the basis of principles and conditions which enable them to fulfil their functions.
Article 36 of the Charter of Fundamental Rights of the European Union requires the Union to recognise and respect access to services of general economic interest to promote the social and territorial cohesion of the Union.
***
Services of general interest, defined as non-market services and state obligations, vary in scope between the different member states. It may be an oversimplification but indicative to say that the SGIs may be controversial politically, but not from a market point of view.
Services of general economic interest add the dimension of the internal market and its competition rules, including rules on state aid.
We have seen that the member states have emphasized their wide discretion in arranging services of general economic interest. The Commission, on the other hand, is keenly interested in upholding a functioning internal market, which has resulted in a number of policy documents attempting to define the scope of funding to SGEIs in real or potential market competition with private firms.
Recently the Commission’s substantial package on the internal market has included policy documents relevant to SGIs and SGEIs. Here are some fresh policy documents of interest to those who want to delve deeper:
COM/2007/0724 final
Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions - A single market for 21st century Europe
COM/2007/0725 final
Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions accompanying the Communication on "A single market for 21st century Europe" - Services of general interest, including social services of general interest: a new European commitment
SEC/2007/1514 final
Commission staff working document - Frequently asked questions concerning the application of public procurement rules to social services of general interest - Accompanying document to the Communication on "Services of general interest, including social services of general interest: a new European commitment"
SEC/2007/1515 final
Commission staff working document - Progress since the 2004 White paper on services of general interest - Accompanying document to the Communication on "Services of general interest, including social services of general interest: a new European commitment"
SEC/2007/1516 final
Commission staff working document - Frequently asked questions in relation with Commission Decision of 28 November 2005 on the application of Article 86(2) of the EC Treaty to State aid in the form of public service compensation granted to certain undertakings entrusted with the operation of services of general economic interest, and of the Community Framework for State aid in the form of public service compensation - Accompanying document to the Communication on "Services of general interest, including social services of general interest: a new European commitment"
Ralf Grahn
Friday, 29 February 2008
Thursday, 28 February 2008
EU TFEU: Animal welfare
Animal health and welfare have a direct bearing on producers and are important for consumers, but these issues also agitate campaigners for radical change. At the same time, religious beliefs or deeply rooted national or regional customs could lead to massive protests, if the European Union tried forceful unification regardless of existing sensitivities.
This means that the protection and welfare of animals is going to remain a contested area, with clashing views on how intrusive EU legislation shall become in general, and the scope for member state exceptions in sensitive questions.
The Treaty of Lisbon enhances the visibility of animal welfare and it widens the scope of protective measures to new policy fields, but the principle of subsidiarity is clearly stated to give the member states room to decide sensitive issues.
***
In the Treaty of Lisbon (ToL) the intergovernmental conference (IGC 2007) decided to insert a provision on the protection and welfare of animals into the Treaty establishing the European Community (TEC), renamed the Treaty on the Functioning of the European Union (TFEU). See OJ 17.12.2007 C 306/48:
21) An Article 6b shall be inserted, with the wording of the enacting terms of the Protocol on the protection and welfare of animals; the word ‘fisheries’ shall be inserted after ‘agriculture’, the words ‘and research’ shall be replaced by ‘research and technological development and space’, and the words ‘, since animals are sentient beings,’ shall be inserted after ‘Member States shall’.
***
Naturally, we all realise that the IGC 2007 refers to a protocol annexed to the Treaty of Amsterdam, and that it can be found in the latest consolidated version of the TEU and the TEC (OJ 29.12.2006 C 321 E/314):
Protocol (No 33)
on protection and welfare of animals (1997)
THE HIGH CONTRACTING PARTIES,
DESIRING to ensure improved protection and respect for the welfare of animals as sentient beings;
HAVE AGREED UPON the following provision which shall be annexed to the Treaty establishing the European Community,
In formulating and implementing the Community's agriculture, transport, internal market and research policies, the Community and the Member States shall pay full regard to the welfare requirements of animals, while respecting the legislative or administrative provisions and customs of the Member States relating in particular to religious rites, cultural traditions and regional heritage.
***
Now for some DIY consolidation of the new provision, given the IGC’s ‘modus operandi’: to enhance the welfare of animals while subjecting humans to unnecessary cruelty.
The provision, in Part One Principles, Title II Provisions having general application, which could well have been written in a comprehensible way by the IGC 2007, should look like this:
Article 6b TFEU (ToL), after renumbering Article 13 TFEU
In formulating and implementing the Union's agriculture, fisheries, transport, internal market, research and technological development and space policies, the Union and the Member States shall, since animals are sentient beings, pay full regard to the welfare requirements of animals, while respecting the legislative or administrative provisions and customs of the Member States relating in particular to religious rites, cultural traditions and regional heritage.
***
The European Convention proposed no corresponding Article in its draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/1).
The Convention proposed texts for a number of politically interesting protocols, but left it to the coming IGC to sort out and to update the bulk of protocols and declarations annexed to the treaties in force
Without looking deeper into the Convention proceedings, it looks as if the Protocol on protection and welfare of animals may have been intended to live on annexed to the Constitution to be.
***
In Part III The policies and functioning of the Union, Title I Provisions of general application, the IGC 2004 agreed to insert a new provision (OJ 16.12.2004 C 310/55-56):
Article III-121 Constitution
In formulating and implementing the Union's agriculture, fisheries, transport, internal market, research and technological development and space policies, the Union and the Member States shall, since animals are sentient beings, pay full regard to the requirements of animal welfare, while respecting the legislative or administrative provisions and customs of Member States relating in particular to religious rites, cultural traditions and regional heritage.
***
As far as I see, there are no other differences between the Constitution and the Lisbon Treaty than that the Constitution’s ‘requirements of animal welfare’ slipped back to ‘welfare requirements of animals’ in the Reform Treaty provision.
***
Comments by your glossator:
Although a protocol is legally binding, given a provision having general application, animal welfare gains visibility in the Treaty of Lisbon, making it easier to raise concerns when actions in certain policy areas are contemplated or debated.
The Lisbon Treaty broadens the scope of the provision by adding fisheries, research and technological development and space policies to the policy areas mentioned in Protocol 33.
On the other hand, the provision continues to leave ample scope for exceptions based on respect for ‘the legislative or administrative provisions and customs of Member States relating in particular to religious rites, cultural traditions and regional heritage’.
Depending on national sensitivities, religious slaughter practices, bullfighting, as well as hunting and other customs are given leeway until, if ever, public opinion and politicians are ready for reform.
***
For a first look at what the European Community has done in the field of animal welfare, you can access the different web pages under the icon Animal Welfare, offered by DG Health and Consumer Protection, starting with, for instance:
http://ec.europa.eu/food/animal/welfare/actionplan/actionplan_en.htm
***
Perhaps this was enough as an introduction for readers as sentient beings.
Ralf Grahn
This means that the protection and welfare of animals is going to remain a contested area, with clashing views on how intrusive EU legislation shall become in general, and the scope for member state exceptions in sensitive questions.
The Treaty of Lisbon enhances the visibility of animal welfare and it widens the scope of protective measures to new policy fields, but the principle of subsidiarity is clearly stated to give the member states room to decide sensitive issues.
***
In the Treaty of Lisbon (ToL) the intergovernmental conference (IGC 2007) decided to insert a provision on the protection and welfare of animals into the Treaty establishing the European Community (TEC), renamed the Treaty on the Functioning of the European Union (TFEU). See OJ 17.12.2007 C 306/48:
21) An Article 6b shall be inserted, with the wording of the enacting terms of the Protocol on the protection and welfare of animals; the word ‘fisheries’ shall be inserted after ‘agriculture’, the words ‘and research’ shall be replaced by ‘research and technological development and space’, and the words ‘, since animals are sentient beings,’ shall be inserted after ‘Member States shall’.
***
Naturally, we all realise that the IGC 2007 refers to a protocol annexed to the Treaty of Amsterdam, and that it can be found in the latest consolidated version of the TEU and the TEC (OJ 29.12.2006 C 321 E/314):
Protocol (No 33)
on protection and welfare of animals (1997)
THE HIGH CONTRACTING PARTIES,
DESIRING to ensure improved protection and respect for the welfare of animals as sentient beings;
HAVE AGREED UPON the following provision which shall be annexed to the Treaty establishing the European Community,
In formulating and implementing the Community's agriculture, transport, internal market and research policies, the Community and the Member States shall pay full regard to the welfare requirements of animals, while respecting the legislative or administrative provisions and customs of the Member States relating in particular to religious rites, cultural traditions and regional heritage.
***
Now for some DIY consolidation of the new provision, given the IGC’s ‘modus operandi’: to enhance the welfare of animals while subjecting humans to unnecessary cruelty.
The provision, in Part One Principles, Title II Provisions having general application, which could well have been written in a comprehensible way by the IGC 2007, should look like this:
Article 6b TFEU (ToL), after renumbering Article 13 TFEU
In formulating and implementing the Union's agriculture, fisheries, transport, internal market, research and technological development and space policies, the Union and the Member States shall, since animals are sentient beings, pay full regard to the welfare requirements of animals, while respecting the legislative or administrative provisions and customs of the Member States relating in particular to religious rites, cultural traditions and regional heritage.
***
The European Convention proposed no corresponding Article in its draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/1).
The Convention proposed texts for a number of politically interesting protocols, but left it to the coming IGC to sort out and to update the bulk of protocols and declarations annexed to the treaties in force
Without looking deeper into the Convention proceedings, it looks as if the Protocol on protection and welfare of animals may have been intended to live on annexed to the Constitution to be.
***
In Part III The policies and functioning of the Union, Title I Provisions of general application, the IGC 2004 agreed to insert a new provision (OJ 16.12.2004 C 310/55-56):
Article III-121 Constitution
In formulating and implementing the Union's agriculture, fisheries, transport, internal market, research and technological development and space policies, the Union and the Member States shall, since animals are sentient beings, pay full regard to the requirements of animal welfare, while respecting the legislative or administrative provisions and customs of Member States relating in particular to religious rites, cultural traditions and regional heritage.
***
As far as I see, there are no other differences between the Constitution and the Lisbon Treaty than that the Constitution’s ‘requirements of animal welfare’ slipped back to ‘welfare requirements of animals’ in the Reform Treaty provision.
***
Comments by your glossator:
Although a protocol is legally binding, given a provision having general application, animal welfare gains visibility in the Treaty of Lisbon, making it easier to raise concerns when actions in certain policy areas are contemplated or debated.
The Lisbon Treaty broadens the scope of the provision by adding fisheries, research and technological development and space policies to the policy areas mentioned in Protocol 33.
On the other hand, the provision continues to leave ample scope for exceptions based on respect for ‘the legislative or administrative provisions and customs of Member States relating in particular to religious rites, cultural traditions and regional heritage’.
Depending on national sensitivities, religious slaughter practices, bullfighting, as well as hunting and other customs are given leeway until, if ever, public opinion and politicians are ready for reform.
***
For a first look at what the European Community has done in the field of animal welfare, you can access the different web pages under the icon Animal Welfare, offered by DG Health and Consumer Protection, starting with, for instance:
http://ec.europa.eu/food/animal/welfare/actionplan/actionplan_en.htm
***
Perhaps this was enough as an introduction for readers as sentient beings.
Ralf Grahn
Wednesday, 27 February 2008
EU: Who watches the watchmen?
A shocking temporary conclusion to Probity European Parliament style.
Quis custodiet ipsos custodes? Juvenal’s question is as pertinent as ever when EUobserver reports that ’MEPs vote not to publish controversial audit report’:
http://euobserver.com/9/25728/?rk=1
The EUobserver article, penned by Elitsa Vucheva, leads us to believe that MEPs Chris Davies and Jens-Peter Bonde were among the 14 members of the committee voting for the publication of a soft version of the internal audit report (without names). I expect other members of the minority to step forward to distance themselves from the majority for a cover-up.
It would be most enlightening if the 21 committee members who voted against publishing even a censored version would be kind enough to fully explain their motives and reasons.
For the citizens of the European Union it is a start to get to know the watchmen, the members of the European Parliament sitting on the Committee on Budgetary Control (CONT in EP parlance):
http://www.europarl.europa.eu/activities/committees/membersCom.do?language=EN&body=CONT
As long as the voting record of yesterday’s meeting is unavailable, and as long as they have not stepped forward on their own, every member is of potential interest to the citizens of the European Union, bearing in mind the June 2009 elections.
Striking the report from the agenda of the Committee on Budgetary Control simply is not good enough.
I repeat my suggestion that everyone with an interest in the history of EU politics and integration history compare the current double scandal – misuse of public funds and cover-up – with the fall of the Santer Commission, prime material for the nascent European public space.
Ralf Grahn
Quis custodiet ipsos custodes? Juvenal’s question is as pertinent as ever when EUobserver reports that ’MEPs vote not to publish controversial audit report’:
http://euobserver.com/9/25728/?rk=1
The EUobserver article, penned by Elitsa Vucheva, leads us to believe that MEPs Chris Davies and Jens-Peter Bonde were among the 14 members of the committee voting for the publication of a soft version of the internal audit report (without names). I expect other members of the minority to step forward to distance themselves from the majority for a cover-up.
It would be most enlightening if the 21 committee members who voted against publishing even a censored version would be kind enough to fully explain their motives and reasons.
For the citizens of the European Union it is a start to get to know the watchmen, the members of the European Parliament sitting on the Committee on Budgetary Control (CONT in EP parlance):
http://www.europarl.europa.eu/activities/committees/membersCom.do?language=EN&body=CONT
As long as the voting record of yesterday’s meeting is unavailable, and as long as they have not stepped forward on their own, every member is of potential interest to the citizens of the European Union, bearing in mind the June 2009 elections.
Striking the report from the agenda of the Committee on Budgetary Control simply is not good enough.
I repeat my suggestion that everyone with an interest in the history of EU politics and integration history compare the current double scandal – misuse of public funds and cover-up – with the fall of the Santer Commission, prime material for the nascent European public space.
Ralf Grahn
EU TFEU: Consumer protection
Can things change without changing the wording? The structure or interrelation between different parts of the EU treaties may seem an arcane hobby, apt to send anyone but a constitutional lawyer to sleep.
But let us take an example of how, arguably, the interests of citizens, the speeches of politicians and the actions of NGOs may be influenced by hardly noticeable change.
No change of wording, but a different perception leading to qualitative change.
***
In the Treaty of Lisbon (ToL) the intergovernmental conference (IGC 2007) inserted an Article 6a into the Treaty establishing the European Community (TEC), renamed the Treaty on the Functioning of the European Union (TFEU). We are given directions as to the contents in OJ 17.12.2007 C 306/48:
20) An Article 6a shall be inserted, with the wording of Article 153(2).
***
Study of the current treaties is never amiss, so we look up the TEC (in the latest consolidated version of the TEU and the TEC in OJ 29.12.2006 C 321 C E/116:
Article 153(2) TEC
2. Consumer protection requirements shall be taken into account in defining and implementing other Community policies and activities.
***
Our diligent work, which I hope has been repeated for every Article by each participant in the IGC 2007 and every ‘no’ voter in France and the Netherlands, has brought its own reward: We are delighted to realise that the Lisbon Treaty places a provision on consumer protection among the provisions having general application (Title II) in the TFEU:
Article 6a TFEU (ToL), to be renumbered Article 12 TFEU
Consumer protection requirements shall be taken into account in defining and implementing other Community policies and activities.
***
The European Convention had the commendable objective to offer us a unified and readable treaty. In Part III The policies and functioning of the Union, Title I Clauses of general application, there was Article III-5 of the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/29), with the familiar text:
Article III-5 Draft Constitution
Consumer protection requirements shall be taken into account in defining and implementing other Union policies and activities.
***
The IGC 2004 preserved this laudatory aim of the Convention in the Treaty establishing a Constitution for Europe, where Part III The policies and functioning of the Union, Title I Provisions of general application, contained Article III-120 (OJ 16.12.2004 C 310/55) on consumer protection:
Article III-120 Constitution
Consumer protection requirements shall be taken into account in defining and implementing other Union policies and activities.
***
We find exactly the same wording in every version, from the current TEC to the Lisbon Treaty, but from a systematic point of view the ordering of horizontal or transversal provisions, having general application, improves clarity and readability of all the treaty versions from the draft Constitution onwards, and helps to enhance the visibility of every general provision.
It is easier to use these provisions having general application as a check list for every proposed legislative act, regardless of area, and raise them in legal and political debate, than if the text of each of them was tucked away in its own niche, like the provision on consumer protection we followed.
I submit that there is a qualitative change, although the wording is unchanged.
***
What about substance?
Those who want an overview of European Community policies and activies in the field of consumer affairs can start from the Europa web pages, Activities of the European Union, Summaries of legislation, Consumers:
http://europa.eu/scadplus/leg/en/s16000.htm
‘Consumers: Introduction’ offers four pages of background on how consumer protection has evolved in the EC, although the pages have last been updated 16 August 2006 and still speak of an EU-25 as a novelty:
http://europa.eu/scadplus/leg/en/lvb/l32000.htm
***
Consumer protection is of interest to 490 million citizens and consumers as well as to most businesses operating in or trading with the European Union.
Ralf Grahn
But let us take an example of how, arguably, the interests of citizens, the speeches of politicians and the actions of NGOs may be influenced by hardly noticeable change.
No change of wording, but a different perception leading to qualitative change.
***
In the Treaty of Lisbon (ToL) the intergovernmental conference (IGC 2007) inserted an Article 6a into the Treaty establishing the European Community (TEC), renamed the Treaty on the Functioning of the European Union (TFEU). We are given directions as to the contents in OJ 17.12.2007 C 306/48:
20) An Article 6a shall be inserted, with the wording of Article 153(2).
***
Study of the current treaties is never amiss, so we look up the TEC (in the latest consolidated version of the TEU and the TEC in OJ 29.12.2006 C 321 C E/116:
Article 153(2) TEC
2. Consumer protection requirements shall be taken into account in defining and implementing other Community policies and activities.
***
Our diligent work, which I hope has been repeated for every Article by each participant in the IGC 2007 and every ‘no’ voter in France and the Netherlands, has brought its own reward: We are delighted to realise that the Lisbon Treaty places a provision on consumer protection among the provisions having general application (Title II) in the TFEU:
Article 6a TFEU (ToL), to be renumbered Article 12 TFEU
Consumer protection requirements shall be taken into account in defining and implementing other Community policies and activities.
***
The European Convention had the commendable objective to offer us a unified and readable treaty. In Part III The policies and functioning of the Union, Title I Clauses of general application, there was Article III-5 of the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/29), with the familiar text:
Article III-5 Draft Constitution
Consumer protection requirements shall be taken into account in defining and implementing other Union policies and activities.
***
The IGC 2004 preserved this laudatory aim of the Convention in the Treaty establishing a Constitution for Europe, where Part III The policies and functioning of the Union, Title I Provisions of general application, contained Article III-120 (OJ 16.12.2004 C 310/55) on consumer protection:
Article III-120 Constitution
Consumer protection requirements shall be taken into account in defining and implementing other Union policies and activities.
***
We find exactly the same wording in every version, from the current TEC to the Lisbon Treaty, but from a systematic point of view the ordering of horizontal or transversal provisions, having general application, improves clarity and readability of all the treaty versions from the draft Constitution onwards, and helps to enhance the visibility of every general provision.
It is easier to use these provisions having general application as a check list for every proposed legislative act, regardless of area, and raise them in legal and political debate, than if the text of each of them was tucked away in its own niche, like the provision on consumer protection we followed.
I submit that there is a qualitative change, although the wording is unchanged.
***
What about substance?
Those who want an overview of European Community policies and activies in the field of consumer affairs can start from the Europa web pages, Activities of the European Union, Summaries of legislation, Consumers:
http://europa.eu/scadplus/leg/en/s16000.htm
‘Consumers: Introduction’ offers four pages of background on how consumer protection has evolved in the EC, although the pages have last been updated 16 August 2006 and still speak of an EU-25 as a novelty:
http://europa.eu/scadplus/leg/en/lvb/l32000.htm
***
Consumer protection is of interest to 490 million citizens and consumers as well as to most businesses operating in or trading with the European Union.
Ralf Grahn
Tuesday, 26 February 2008
Probity European Parliament style
Do you remember the fate of the Santer Commission, when the European Parliament flexed its muscles as a guardian of probity?
Compare it to the current handling of allegations of misuse of public funds by MEP’s themselves.
I have received no direct answer to the query I sent to the EP’s Press Office.
When I checked a short while ago, I found no information on the press web pages of the European Parliament.
If it took Hercules a day to clean the Augean stables, ordinary mortals may need more to get things cleaned up, but the time for the EP to start communicating passed many days ago.
Ralf Grahn
Compare it to the current handling of allegations of misuse of public funds by MEP’s themselves.
I have received no direct answer to the query I sent to the EP’s Press Office.
When I checked a short while ago, I found no information on the press web pages of the European Parliament.
If it took Hercules a day to clean the Augean stables, ordinary mortals may need more to get things cleaned up, but the time for the EP to start communicating passed many days ago.
Ralf Grahn
EU TFEU: Environmental protection
Environmental protection and sustainable development need action from the individual to the global level, with the European Union an increasingly important actor in between.
Every policy and activity of the EU can and should be scrutinised from these angles.
***
In the Treaty of Lisbon (ToL) the intergovernmental conference gives us this stirring lead in the Treaty establishing the European Community (TEC), renamed the Treaty on the Functioning of the European Union (TFEU). See OJ 17.12.2007 C 306/48:
19) In Article 6, the words ‘referred to in Article 3’ shall be deleted.
***
Should the Lisbon Treaty never enter into force, we have cause to be grateful for the incentive offered by the IGC 2007 to study the existing treaties we would be stuck with.
Here is Article 6 TEC (taken from the latest consolidated version of the current TEU and TEC, published in OJ 29.12.2006 C 321 E/46:
Article 6 TEC
Environmental protection requirements must be integrated into the definition and implementation
of the Community policies and activities referred to in Article 3, in particular with a view to
promoting sustainable development.
***
Bearing in mind that ’Community’ and ’European Community’ belong to the terms marked for extinction under horizontal amendments, and following the instructions handed out, we arrive at the following consolidated text, under Title II Provisions having general application (throughout the treaty):
Article 6 TFEU (ToL), after renumbering Article 11 TFEU
Environmental protection requirements must be integrated into the definition and implementation of the Union policies and activities, in particular with a view to promoting sustainable development.
***
Never mind that the current TEC and the agreed TFEU are substantially the same. Intrepid warriors want to know what that proponent of European democracy, Valéry Giscard d’Estaing, and the European Convention he led, proposed in the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/29):
Article III-4 Draft Constitution
Environmental protection requirements must be integrated into the definition and implementation of the Union policies and activities referred to in this Part, in particular with a view to promoting sustainable development.
***
What did the previous IGC 2004 agree on in the Treaty establishing a Constitution for Europe? A quick look in OJ 16.12.2004 C 310/55:
Article III-119 Constitution
Environmental protection requirements must be integrated into the definition and implementation of the policies and activities referred to in this Part, in particular with a view to promoting sustainable development.
***
Everybody should now be happy: The ones who contend that the Lisbon Treaty is practically the same as the Constitution (and the draft Constitution) can point to identical wording. Those who want to underline the pious rewording of an amending treaty find satisfaction in the substantial similarity between the TEC and the agreed TFEU.
Splendid!
***
What the Europa Glossary has to say about the environment:
http://europa.eu/scadplus/glossary/environment_en.htm
Further reading on the EU and environmental protection:
http://europa.eu/scadplus/leg/en/s15000.htm
For the Europa Glossary introduction to sustainable development:
http://europa.eu/scadplus/glossary/sustainable_development_en.htm
A primer on sustainable development:
http://europa.eu/scadplus/leg/en/s15001.htm
***
If sustainable development meets the needs of the present generation without compromising the ability of future generations to meet their own needs, there are least three important aspects to sustainability: environmental, economic and social-political.
Between the competing claims of growth and prosperity now on the one hand and needs of future generations on the other hand, European regulation and legislation is never going to be boring.
It might even merit the efforts of the best and the brightest.
Ralf Grahn
Every policy and activity of the EU can and should be scrutinised from these angles.
***
In the Treaty of Lisbon (ToL) the intergovernmental conference gives us this stirring lead in the Treaty establishing the European Community (TEC), renamed the Treaty on the Functioning of the European Union (TFEU). See OJ 17.12.2007 C 306/48:
19) In Article 6, the words ‘referred to in Article 3’ shall be deleted.
***
Should the Lisbon Treaty never enter into force, we have cause to be grateful for the incentive offered by the IGC 2007 to study the existing treaties we would be stuck with.
Here is Article 6 TEC (taken from the latest consolidated version of the current TEU and TEC, published in OJ 29.12.2006 C 321 E/46:
Article 6 TEC
Environmental protection requirements must be integrated into the definition and implementation
of the Community policies and activities referred to in Article 3, in particular with a view to
promoting sustainable development.
***
Bearing in mind that ’Community’ and ’European Community’ belong to the terms marked for extinction under horizontal amendments, and following the instructions handed out, we arrive at the following consolidated text, under Title II Provisions having general application (throughout the treaty):
Article 6 TFEU (ToL), after renumbering Article 11 TFEU
Environmental protection requirements must be integrated into the definition and implementation of the Union policies and activities, in particular with a view to promoting sustainable development.
***
Never mind that the current TEC and the agreed TFEU are substantially the same. Intrepid warriors want to know what that proponent of European democracy, Valéry Giscard d’Estaing, and the European Convention he led, proposed in the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/29):
Article III-4 Draft Constitution
Environmental protection requirements must be integrated into the definition and implementation of the Union policies and activities referred to in this Part, in particular with a view to promoting sustainable development.
***
What did the previous IGC 2004 agree on in the Treaty establishing a Constitution for Europe? A quick look in OJ 16.12.2004 C 310/55:
Article III-119 Constitution
Environmental protection requirements must be integrated into the definition and implementation of the policies and activities referred to in this Part, in particular with a view to promoting sustainable development.
***
Everybody should now be happy: The ones who contend that the Lisbon Treaty is practically the same as the Constitution (and the draft Constitution) can point to identical wording. Those who want to underline the pious rewording of an amending treaty find satisfaction in the substantial similarity between the TEC and the agreed TFEU.
Splendid!
***
What the Europa Glossary has to say about the environment:
http://europa.eu/scadplus/glossary/environment_en.htm
Further reading on the EU and environmental protection:
http://europa.eu/scadplus/leg/en/s15000.htm
For the Europa Glossary introduction to sustainable development:
http://europa.eu/scadplus/glossary/sustainable_development_en.htm
A primer on sustainable development:
http://europa.eu/scadplus/leg/en/s15001.htm
***
If sustainable development meets the needs of the present generation without compromising the ability of future generations to meet their own needs, there are least three important aspects to sustainability: environmental, economic and social-political.
Between the competing claims of growth and prosperity now on the one hand and needs of future generations on the other hand, European regulation and legislation is never going to be boring.
It might even merit the efforts of the best and the brightest.
Ralf Grahn
Monday, 25 February 2008
EU TFEU: Combating discrimination
The European Union is bound by prohibitions on discrimination and the European Community is allowed action to combat discrimination on various grounds.
The Treaty of Lisbon introduces a horizontal aim to combat discrimination on specific grounds in the policies and activities of the European Union.
***
The intergovernmental conference (IGC 2007) inserted a new provision having general applicability into the Treaty of Lisbon (ToL), more precisely the Treaty establishing the European Community (TEC), renamed the Treaty on the Functioning of the European Union (TFEU). See OJ 17.12.2007 C 306/48:
Article 5b TFEU (ToL), to be renumbered Article 10 TFEU
In defining and implementing its policies and activities, the Union shall aim to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation.
***
Reading is fine, but understanding is better. We set out to see the origins of this new transversal provision, by looking first at the Treaty establishing a Constitution for Europe, where Title I Provisions of general application of Part III The policies and functioning of the Union has this to offer (OJ 16.12.2004 C 310/55):
Article III-118 Constitution
In defining and implementing the policies and activities referred to in this Part, the Union shall aim to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation.
***
We are able to see that the only difference is of an editorial nature, the substance including the specific grounds for discrimination to combat being identical in the Lisbon Treaty and the Constitution.
***
If we find something in the Constitutional Treaty, there is cause to take a peek at what the European Convention proposed in the draft Treaty establishing a Constitution for Europe. Part III The policies and functioning of the Union, and its Title I Clauses of general application offer us this provision (OJ 18.7.2003 C 169/29):
Article III-3 Draft Constitution
In defining and implementing the policies and activities referred to in this Part, the Union shall aim to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation.
***
The draft Constitution and the Constitution are identical in this respect.
***
Article III-3 of the draft Constitution has been described as a new horizontal provision, which would apply to the Constitution and the Lisbon Reform Treaty, as well.
Let us see if there are any points of reference in the current treaties, the TEU and the TEC.
***
One provision to check would seem to be Article 6 TEU, especially paragraph 2 with its reference to the European Convention for the Protection of Human Rights and Fundamental Freedoms (the latest consolidated version of the current TEU and TEC being found in OJ 29.12.2006 C 321 E/1, with Article 6 TEU on page 12):
Article 6 TEU
1. The 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.
2. The Union shall respect fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950 and as they result from the constitutional traditions common to the Member States, as general principles of Community law.
3. The Union shall respect the national identities of its Member States.
4. The Union shall provide itself with the means necessary to attain its objectives and carry through its policies.
***
The European Human Rights Convention, consolidated with later amending protocols, can be found on the web pages of the Council of Europe:
http://conventions.coe.int/Treaty/Commun/QueVoulezVous.asp?NT=005&CM=7&DF=2/25/2008&CL=ENG
Our attention turns to Article 14, as amended by Protocol 11:
Article 14 – Prohibition of discrimination
The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.
***
On the face of it, most of the specific grounds for prohibited discrimination seem to be shared by the European Human Rights Convention and the Lisbon Treaty, but a more thorough examination would be required to ascertain if, for instance, ‘birth or other status’ have been given the same scope by the European Court of Human Rights as ‘disability, age or sexual orientation’ enumerated in the Treaty of Lisbon.
***
One of the mainstays of the common market has been the prohibition of discrimination on grounds of nationality, to be found in the existing Article 12 TEC (OJ 29.12.2006 C 321 E/48):
Article 12 TEC
Within the scope of application of this Treaty, and without prejudice to any special provisions contained therein, any discrimination on grounds of nationality shall be prohibited.
The Council, acting in accordance with the procedure referred to in Article 251, may adopt rules designed to prohibit such discrimination.
***
We come even closer when we take a look at the specific grounds for discrimination to combat in the current Article 13 TEC:
Article 13 TEC
1. Without prejudice to the other provisions of this Treaty and within the limits of the powers conferred by it upon the Community, the Council, acting unanimously on a proposal from the
Commission and after consulting the European Parliament, may take appropriate action to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation.
2. By way of derogation from paragraph 1, when the Council adopts Community incentive measures, excluding any harmonisation of the laws and regulations of the Member States, to support action taken by the Member States in order to contribute to the achievement of the objectives referred to in paragraph 1, it shall act in accordance with the procedure referred to in Article 251.
***
The grounds mentioned in Article 13 TEC and Article 5b TFEU (ToL) are identical, and more than a prohibition against discrimination the current treaty envisions active action to combat discrimination.
We are going to leave the question open for now, if the present requirement for unanimity is upheld in the Treaty of Lisbon.
***
The fundamental rights of the citizens of the European Union (or universally), caused a fair amount of commotion among member states’ governments. This warrants a closer look at the Charter of Fundamental Rights and related expressions of concern.
We take note of the fact that the Charter of Fundamental Rights of the European Union includes a prohibition of discrimination, by the EU institutions and the member states when implementing EU law, on various grounds, many of them fairly familiar by now (OJ 14.12.2007 C 303/7):
Article 21 Charter
Non-discrimination
1. Any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation shall be prohibited.
2. Within the scope of application of the Treaties and without prejudice to any of their specific provisions, any discrimination on grounds of nationality shall be prohibited.
***
We refer the interested reader to the Explanations relating to the Charter of Fundamental Rights (OJ 14.12.2007 C 303/24):
Explanation on Article 21 — Non-discrimination
Paragraph 1 draws on Article 13 of the EC Treaty, now replaced by Article 19 of the Treaty on the Functioning of the European Union, Article 14 of the ECHR and Article 11 of the Convention on Human Rights and Biomedicine as regards genetic heritage. In so far as this corresponds to Article 14 of the ECHR, it applies in compliance with it.
There is no contradiction or incompatibility between paragraph 1 and Article 19 of the Treaty on the Functioning of the European Union which has a different scope and purpose: Article 19 confers power on the Union to adopt legislative acts, including harmonisation of the Member States' laws and regulations, to combat certain forms of discrimination, listed exhaustively in that Article. Such legislation may cover action of Member State authorities (as well as relations between private individuals) in any area within the limits of the Union's powers. In contrast, the provision in Article 21(1) does not create any power to enact anti-discrimination laws in these areas of Member State or private action, nor does it lay down a sweeping ban of discrimination in such wide-ranging areas. Instead, it only addresses discriminations by the institutions and bodies of the Union themselves, when exercising powers conferred under the Treaties, and by Member States only when they are implementing Union law. Paragraph 1 therefore does not alter the extent of powers granted under Article 19 nor the interpretation given to that Article.
Paragraph 2 corresponds to the first paragraph of Article 18 of the Treaty on the Functioning of the European Union and must be applied in compliance with that Article.
***
Naturally, should we be confronted with a problem pertaining to the Charter, we have to be aware of the Protocol on the application of the Charter of Fundamental Rights of the European Union to Poland and to the United Kingdom, these countries wanting to evade enforceable rights (OJ 17.12.2007 C 306/154-155):
PROTOCOL
ON THE APPLICATION OF THE CHARTER OF FUNDAMENTAL
RIGHTS OF THE EUROPEAN UNION TO POLAND AND TO THE
UNITED KINGDOM
THE HIGH CONTRACTING PARTIES,
WHEREAS in Article 6 of the Treaty on European Union, the Union recognises the rights, freedoms and principles set out in the Charter of Fundamental Rights of the European Union;
WHEREAS the Charter is to be applied in strict accordance with the provisions of the aforementioned Article 6 and Title VII of the Charter itself;
WHEREAS the aforementioned Article 6 requires the Charter to be applied and interpreted by the courts of Poland and of the United Kingdom strictly in accordance with the explanations referred to in that Article;
WHEREAS the Charter contains both rights and principles;
WHEREAS the Charter contains both provisions which are civil and political in character and those which are economic and social in character;
WHEREAS the Charter reaffirms the rights, freedoms and principles recognised in the Union and makes those rights more visible, but does not create new rights or principles;
RECALLING the obligations devolving upon Poland and the United Kingdom under the Treaty on European Union, the Treaty on the Functioning of the European Union, and Union law generally;
NOTING the wish of Poland and the United Kingdom to clarify certain aspects of the application of the Charter;
DESIROUS therefore of clarifying the application of the Charter in relation to the laws and administrative action of Poland and of the United Kingdom and of its justiciability within Poland and within the United Kingdom;
REAFFIRMING that references in this Protocol to the operation of specific provisions of the Charter are strictly without prejudice to the operation of other provisions of the Charter;
REAFFIRMING that this Protocol is without prejudice to the application of the Charter to other Member States;
REAFFIRMING that this Protocol is without prejudice to other obligations devolving upon Poland and the United Kingdom under the Treaty on European Union, the Treaty on the Functioning of the European Union, and Union law generally,
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
1. The Charter does not extend the ability of the Court of Justice of the European Union, or any court or tribunal of Poland or of the United Kingdom, to find that the laws, regulations or administrative provisions, practices or action of Poland or of the United Kingdom are inconsistent with the fundamental rights, freedoms and principles that it reaffirms.
2. In particular, and for the avoidance of doubt, nothing in Title IV of the Charter creates justiciable rights applicable to Poland or the United Kingdom except in so far as Poland or the United Kingdom has provided for such rights in its national law.
Article 2
To the extent that a provision of the Charter refers to national laws and practices, it shall only apply to Poland or the United Kingdom to the extent that the rights or principles that it contains are recognised in the law or practices of Poland or of the United Kingdom.
***
We have joint Declaration (number 1) concerning the Charter of Fundamental Rights of the
European Union, with one more reminder of the limited impact of the Charter (OJ 17.12.2007 C 306/247):
1. Declaration
The Charter of Fundamental Rights of the European Union, which has legally binding force, confirms the fundamental rights guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and as they result from the constitutional traditions common to the Member States.
The Charter does not extend the field of application of Union law beyond the powers of the Union or establish any new power or task for the Union, or modify powers and tasks as defined by the Treaties.
***
Citizens’ rights received special attention from two member state governments, leading to three additional declarations:
53. Declaration by the Czech Republic on the Charter of Fundamental Rights of the European Union
61. Declaration by the Republic of Poland on the Charter of Fundamental Rights of the European Union
62. Declaration by the Republic of Poland concerning the Protocol on the application of the Charter of Fundamental Rights of the European Union in relation to Poland and the United Kingdom
***
Combating discrimination is set to be a generally applicable principle of EU action.
Ralf Grahn
The Treaty of Lisbon introduces a horizontal aim to combat discrimination on specific grounds in the policies and activities of the European Union.
***
The intergovernmental conference (IGC 2007) inserted a new provision having general applicability into the Treaty of Lisbon (ToL), more precisely the Treaty establishing the European Community (TEC), renamed the Treaty on the Functioning of the European Union (TFEU). See OJ 17.12.2007 C 306/48:
Article 5b TFEU (ToL), to be renumbered Article 10 TFEU
In defining and implementing its policies and activities, the Union shall aim to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation.
***
Reading is fine, but understanding is better. We set out to see the origins of this new transversal provision, by looking first at the Treaty establishing a Constitution for Europe, where Title I Provisions of general application of Part III The policies and functioning of the Union has this to offer (OJ 16.12.2004 C 310/55):
Article III-118 Constitution
In defining and implementing the policies and activities referred to in this Part, the Union shall aim to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation.
***
We are able to see that the only difference is of an editorial nature, the substance including the specific grounds for discrimination to combat being identical in the Lisbon Treaty and the Constitution.
***
If we find something in the Constitutional Treaty, there is cause to take a peek at what the European Convention proposed in the draft Treaty establishing a Constitution for Europe. Part III The policies and functioning of the Union, and its Title I Clauses of general application offer us this provision (OJ 18.7.2003 C 169/29):
Article III-3 Draft Constitution
In defining and implementing the policies and activities referred to in this Part, the Union shall aim to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation.
***
The draft Constitution and the Constitution are identical in this respect.
***
Article III-3 of the draft Constitution has been described as a new horizontal provision, which would apply to the Constitution and the Lisbon Reform Treaty, as well.
Let us see if there are any points of reference in the current treaties, the TEU and the TEC.
***
One provision to check would seem to be Article 6 TEU, especially paragraph 2 with its reference to the European Convention for the Protection of Human Rights and Fundamental Freedoms (the latest consolidated version of the current TEU and TEC being found in OJ 29.12.2006 C 321 E/1, with Article 6 TEU on page 12):
Article 6 TEU
1. The 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.
2. The Union shall respect fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950 and as they result from the constitutional traditions common to the Member States, as general principles of Community law.
3. The Union shall respect the national identities of its Member States.
4. The Union shall provide itself with the means necessary to attain its objectives and carry through its policies.
***
The European Human Rights Convention, consolidated with later amending protocols, can be found on the web pages of the Council of Europe:
http://conventions.coe.int/Treaty/Commun/QueVoulezVous.asp?NT=005&CM=7&DF=2/25/2008&CL=ENG
Our attention turns to Article 14, as amended by Protocol 11:
Article 14 – Prohibition of discrimination
The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.
***
On the face of it, most of the specific grounds for prohibited discrimination seem to be shared by the European Human Rights Convention and the Lisbon Treaty, but a more thorough examination would be required to ascertain if, for instance, ‘birth or other status’ have been given the same scope by the European Court of Human Rights as ‘disability, age or sexual orientation’ enumerated in the Treaty of Lisbon.
***
One of the mainstays of the common market has been the prohibition of discrimination on grounds of nationality, to be found in the existing Article 12 TEC (OJ 29.12.2006 C 321 E/48):
Article 12 TEC
Within the scope of application of this Treaty, and without prejudice to any special provisions contained therein, any discrimination on grounds of nationality shall be prohibited.
The Council, acting in accordance with the procedure referred to in Article 251, may adopt rules designed to prohibit such discrimination.
***
We come even closer when we take a look at the specific grounds for discrimination to combat in the current Article 13 TEC:
Article 13 TEC
1. Without prejudice to the other provisions of this Treaty and within the limits of the powers conferred by it upon the Community, the Council, acting unanimously on a proposal from the
Commission and after consulting the European Parliament, may take appropriate action to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation.
2. By way of derogation from paragraph 1, when the Council adopts Community incentive measures, excluding any harmonisation of the laws and regulations of the Member States, to support action taken by the Member States in order to contribute to the achievement of the objectives referred to in paragraph 1, it shall act in accordance with the procedure referred to in Article 251.
***
The grounds mentioned in Article 13 TEC and Article 5b TFEU (ToL) are identical, and more than a prohibition against discrimination the current treaty envisions active action to combat discrimination.
We are going to leave the question open for now, if the present requirement for unanimity is upheld in the Treaty of Lisbon.
***
The fundamental rights of the citizens of the European Union (or universally), caused a fair amount of commotion among member states’ governments. This warrants a closer look at the Charter of Fundamental Rights and related expressions of concern.
We take note of the fact that the Charter of Fundamental Rights of the European Union includes a prohibition of discrimination, by the EU institutions and the member states when implementing EU law, on various grounds, many of them fairly familiar by now (OJ 14.12.2007 C 303/7):
Article 21 Charter
Non-discrimination
1. Any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation shall be prohibited.
2. Within the scope of application of the Treaties and without prejudice to any of their specific provisions, any discrimination on grounds of nationality shall be prohibited.
***
We refer the interested reader to the Explanations relating to the Charter of Fundamental Rights (OJ 14.12.2007 C 303/24):
Explanation on Article 21 — Non-discrimination
Paragraph 1 draws on Article 13 of the EC Treaty, now replaced by Article 19 of the Treaty on the Functioning of the European Union, Article 14 of the ECHR and Article 11 of the Convention on Human Rights and Biomedicine as regards genetic heritage. In so far as this corresponds to Article 14 of the ECHR, it applies in compliance with it.
There is no contradiction or incompatibility between paragraph 1 and Article 19 of the Treaty on the Functioning of the European Union which has a different scope and purpose: Article 19 confers power on the Union to adopt legislative acts, including harmonisation of the Member States' laws and regulations, to combat certain forms of discrimination, listed exhaustively in that Article. Such legislation may cover action of Member State authorities (as well as relations between private individuals) in any area within the limits of the Union's powers. In contrast, the provision in Article 21(1) does not create any power to enact anti-discrimination laws in these areas of Member State or private action, nor does it lay down a sweeping ban of discrimination in such wide-ranging areas. Instead, it only addresses discriminations by the institutions and bodies of the Union themselves, when exercising powers conferred under the Treaties, and by Member States only when they are implementing Union law. Paragraph 1 therefore does not alter the extent of powers granted under Article 19 nor the interpretation given to that Article.
Paragraph 2 corresponds to the first paragraph of Article 18 of the Treaty on the Functioning of the European Union and must be applied in compliance with that Article.
***
Naturally, should we be confronted with a problem pertaining to the Charter, we have to be aware of the Protocol on the application of the Charter of Fundamental Rights of the European Union to Poland and to the United Kingdom, these countries wanting to evade enforceable rights (OJ 17.12.2007 C 306/154-155):
PROTOCOL
ON THE APPLICATION OF THE CHARTER OF FUNDAMENTAL
RIGHTS OF THE EUROPEAN UNION TO POLAND AND TO THE
UNITED KINGDOM
THE HIGH CONTRACTING PARTIES,
WHEREAS in Article 6 of the Treaty on European Union, the Union recognises the rights, freedoms and principles set out in the Charter of Fundamental Rights of the European Union;
WHEREAS the Charter is to be applied in strict accordance with the provisions of the aforementioned Article 6 and Title VII of the Charter itself;
WHEREAS the aforementioned Article 6 requires the Charter to be applied and interpreted by the courts of Poland and of the United Kingdom strictly in accordance with the explanations referred to in that Article;
WHEREAS the Charter contains both rights and principles;
WHEREAS the Charter contains both provisions which are civil and political in character and those which are economic and social in character;
WHEREAS the Charter reaffirms the rights, freedoms and principles recognised in the Union and makes those rights more visible, but does not create new rights or principles;
RECALLING the obligations devolving upon Poland and the United Kingdom under the Treaty on European Union, the Treaty on the Functioning of the European Union, and Union law generally;
NOTING the wish of Poland and the United Kingdom to clarify certain aspects of the application of the Charter;
DESIROUS therefore of clarifying the application of the Charter in relation to the laws and administrative action of Poland and of the United Kingdom and of its justiciability within Poland and within the United Kingdom;
REAFFIRMING that references in this Protocol to the operation of specific provisions of the Charter are strictly without prejudice to the operation of other provisions of the Charter;
REAFFIRMING that this Protocol is without prejudice to the application of the Charter to other Member States;
REAFFIRMING that this Protocol is without prejudice to other obligations devolving upon Poland and the United Kingdom under the Treaty on European Union, the Treaty on the Functioning of the European Union, and Union law generally,
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
1. The Charter does not extend the ability of the Court of Justice of the European Union, or any court or tribunal of Poland or of the United Kingdom, to find that the laws, regulations or administrative provisions, practices or action of Poland or of the United Kingdom are inconsistent with the fundamental rights, freedoms and principles that it reaffirms.
2. In particular, and for the avoidance of doubt, nothing in Title IV of the Charter creates justiciable rights applicable to Poland or the United Kingdom except in so far as Poland or the United Kingdom has provided for such rights in its national law.
Article 2
To the extent that a provision of the Charter refers to national laws and practices, it shall only apply to Poland or the United Kingdom to the extent that the rights or principles that it contains are recognised in the law or practices of Poland or of the United Kingdom.
***
We have joint Declaration (number 1) concerning the Charter of Fundamental Rights of the
European Union, with one more reminder of the limited impact of the Charter (OJ 17.12.2007 C 306/247):
1. Declaration
The Charter of Fundamental Rights of the European Union, which has legally binding force, confirms the fundamental rights guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and as they result from the constitutional traditions common to the Member States.
The Charter does not extend the field of application of Union law beyond the powers of the Union or establish any new power or task for the Union, or modify powers and tasks as defined by the Treaties.
***
Citizens’ rights received special attention from two member state governments, leading to three additional declarations:
53. Declaration by the Czech Republic on the Charter of Fundamental Rights of the European Union
61. Declaration by the Republic of Poland on the Charter of Fundamental Rights of the European Union
62. Declaration by the Republic of Poland concerning the Protocol on the application of the Charter of Fundamental Rights of the European Union in relation to Poland and the United Kingdom
***
Combating discrimination is set to be a generally applicable principle of EU action.
Ralf Grahn
Sunday, 24 February 2008
EU Lisbon Treaty: Ratification and consolidation in Finland
The government of Finland has communicated its intentions concerning the Treaty of Lisbon in two regards:
The ratification bill for the Lisbon Treaty is going to be sent to parliament in March.
The promised consolidated versions of the Lisbon Reform Treaty, in Finnish and Swedish, have now been given a more precise publishing date, by mid April.
***
Since Finland belonged to the two thirds majority of EU member states that approved the Constitutional Treaty, renewed parliamentary ratification of the ‘Constitution Light’ would not appear to cause serious problems.
The consolidated Finnish language version of the Lisbon Treaty is going to be a real addition, whereas there is a complete Swedish version available from Sieps, the Swedish Institute for European Policy Studies,
www.sieps.se
and their new web pages on the Lisbon Treaty
http://www.lissabonfordraget.se/
As reported earlier, SNS Förlag in Sweden is going to publish a pocket version of the amending treaties.
Ralf Grahn
Here is the Finnish government’s press release in its entirety:
Government Communications Unit
22.2.2008 13.16
Preparations for the implementation of the Lisbon Treaty
Preparations for the implementation of the EU Treaty of Lisbon have begun during the Slovenian Presidency which started on 1 January 2008. Work will continue during the French Presidency during the latter half of 2008. The purpose is to prepare for the entry into force of the Treaty. Preparations concern issues with details that were left to be adopted at a later stage.
The EU Member States signed the Treaty of Lisbon which reforms the Union’s functioning in December 2007. The aim is to have the Treaty take effect as of the beginning of 2009.
In January, the Slovenian Presidency presented a work programme of the themes that need to be discussed before the entry into force of the Treaty. The work programme, which covers, for example, Justice and Home Affairs, institutional issues and issues concerning external relations and defence, will be discussed at the EU Ambassadors’ meetings during spring 2008. Discussions will cover, for example, the procedures and conditions to be applied to citizens’ initiatives, the transfer of the ongoing legislative proposals under the ordinary legislative procedure and the role of the permanent President of the European Council.
Finland is to submit a government proposal on the Lisbon Treaty to the Finnish Parliament in March 2008. Parliament will make a decision on the ratification of the Treaty.
A more reader-friendly, consolidated version is currently under compilation of the text of the Lisbon Treaty and of the ensuing changes to the basic treaties. The consolidated version will be a document integrating the articles of the various Treaties in one text. Finnish and Swedish versions are to be issued by mid-April.
The entry into force of the Lisbon Treaty as of the beginning of 2009 requires that all Member States have ratified the Treaty by that date.
Further information: Arno Liukko, Counsellor, Government Secretariat for EU Affairs, tel. +358 9 1602 2190
The ratification bill for the Lisbon Treaty is going to be sent to parliament in March.
The promised consolidated versions of the Lisbon Reform Treaty, in Finnish and Swedish, have now been given a more precise publishing date, by mid April.
***
Since Finland belonged to the two thirds majority of EU member states that approved the Constitutional Treaty, renewed parliamentary ratification of the ‘Constitution Light’ would not appear to cause serious problems.
The consolidated Finnish language version of the Lisbon Treaty is going to be a real addition, whereas there is a complete Swedish version available from Sieps, the Swedish Institute for European Policy Studies,
www.sieps.se
and their new web pages on the Lisbon Treaty
http://www.lissabonfordraget.se/
As reported earlier, SNS Förlag in Sweden is going to publish a pocket version of the amending treaties.
Ralf Grahn
Here is the Finnish government’s press release in its entirety:
Government Communications Unit
22.2.2008 13.16
Preparations for the implementation of the Lisbon Treaty
Preparations for the implementation of the EU Treaty of Lisbon have begun during the Slovenian Presidency which started on 1 January 2008. Work will continue during the French Presidency during the latter half of 2008. The purpose is to prepare for the entry into force of the Treaty. Preparations concern issues with details that were left to be adopted at a later stage.
The EU Member States signed the Treaty of Lisbon which reforms the Union’s functioning in December 2007. The aim is to have the Treaty take effect as of the beginning of 2009.
In January, the Slovenian Presidency presented a work programme of the themes that need to be discussed before the entry into force of the Treaty. The work programme, which covers, for example, Justice and Home Affairs, institutional issues and issues concerning external relations and defence, will be discussed at the EU Ambassadors’ meetings during spring 2008. Discussions will cover, for example, the procedures and conditions to be applied to citizens’ initiatives, the transfer of the ongoing legislative proposals under the ordinary legislative procedure and the role of the permanent President of the European Council.
Finland is to submit a government proposal on the Lisbon Treaty to the Finnish Parliament in March 2008. Parliament will make a decision on the ratification of the Treaty.
A more reader-friendly, consolidated version is currently under compilation of the text of the Lisbon Treaty and of the ensuing changes to the basic treaties. The consolidated version will be a document integrating the articles of the various Treaties in one text. Finnish and Swedish versions are to be issued by mid-April.
The entry into force of the Lisbon Treaty as of the beginning of 2009 requires that all Member States have ratified the Treaty by that date.
Further information: Arno Liukko, Counsellor, Government Secretariat for EU Affairs, tel. +358 9 1602 2190
EU TFEU: They work for us?
How should you approach the Treaty of Lisbon? Is it the rehashed Constitution, or should we rather look at how the Lisbon Treaty amends and improves the existing EU and EC Treaties?
***
In the Treaty of Lisbon (ToL) the intergovernmental conference (IGC 2007) decided to insert a new provision having general application into the Treaty establishing the European Community (TEC), renamed the Treaty on the Functioning of the European Union (TFEU). See OJ 17.12.2007 C 306/48:
17) The following Article 5a shall be inserted:
Article 5a TFEU (ToL), to be renumbered Article 9 TFEU
In defining and implementing its policies and activities, the Union shall take into account requirements linked to the promotion of a high level of employment, the guarantee of adequate social protection, the fight against social exclusion, and a high level of education, training and protection of human health.
***
This provision did not appear out of the blue, so we take a look at what the IGC 2004 agreed on three years earlier. In the Treaty establishing a Constitution for Europe, Part III The policies and functioning of the Union, Title I Provisions of general application, we find the following Article III-117 (OJ 16.12.2004 C 310/55):
Article III-117
In defining and implementing the policies and actions referred to in this Part, the Union shall take into account requirements linked to the promotion of a high level of employment, the guarantee of adequate social protection, the fight against social exclusion, and a high level of education, training and protection of human health.
***
The resemblance between the Constitution and the Lisbon Treaty is striking, but contrary to most instances we would look in vain for a corresponding Article proposed by the European Convention in the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169).
Here the IGC 2004 filled a void between the EU’s objectives on the one hand and its policies and actions on the other hand.
Thus, the IGC 2004 can be seen as the true originator of this provision, giving us an example of one of the few improvements authored by the intergovernmental conference when compared to the draft proposed by the European Convention.
***
We can now change tack, to offer another explanation of the new Article in the Lisbon Treaty. Given that the Lisbon Reform Treaty amends the existing Treaty on European Union (TEU) and the TEC, the origins of a provision can be sought in the current treaties.
This is what the UK Foreign and Commonwealth Office does in its Command Paper 7311 A comparative table of the current EC and EU Treaties as amended by the Treaty of Lisbon, concerning Article 9 (5a) TFEU (page 6):
“Draws on Article 2 TEU, and Articles 2, 127, 136, 137, 140, 149, 150 and 152 TEC.”
Earlier, the Explanatory Note has given us the following definition:
“Draws on – where a provision takes elements of existing provisions”
***
The diligent student may want to trace the elements from each of the Articles mentioned, but we are content to present the two main provisions for the sake of comparison, and as a convenient excuse to refresh our memory concerning the treaties in force.
First, we turn to the current Article 2 TEU on the Union’s objectives under Title I Common provisions (in the latest consolidated version, to be found in OJ 29.12.2006 C 321 E/11):
Article 2 TEU
The Union shall set itself the following objectives:
— to promote economic and social progress and a high level of employment and to achieve balanced and sustainable development, in particular through the creation of an area without internal frontiers, through the strengthening of economic and social cohesion and through the establishment of economic and monetary union, ultimately including a single currency in accordance with the provisions of this Treaty,
— to assert its identity on the international scene, in particular through the implementation of a common foreign and security policy including the progressive framing of a common defence policy, which might lead to a common defence, in accordance with the provisions of Article 17,
— to strengthen the protection of the rights and interests of the nationals of its Member States through the introduction of a citizenship of the Union,
— to maintain and develop the Union as an area of freedom, security and justice, in which the free movement of persons is assured in conjunction with appropriate measures with respect to external border controls, asylum, immigration and the prevention and combating of crime,
— to maintain in full the acquis communautaire and build on it with a view to considering to what extent the policies and forms of cooperation introduced by this Treaty may need to be revised with the aim of ensuring the effectiveness of the mechanisms and the institutions of the Community.
The objectives of the Union shall be achieved as provided in this Treaty and in accordance with the conditions and the timetable set out therein while respecting the principle of subsidiarity as defined in Article 5 of the Treaty establishing the European Community.
***
Second, we rehearse the current Article 2 TEC, in Part One, Principles (OJ, page 44):
Article 2 TEC
The Community shall have as its task, by establishing a common market and an economic and monetary union and by implementing common policies or activities referred to in Articles 3 and 4, to promote throughout the Community a harmonious, balanced and sustainable development of economic activities, a high level of employment and of social protection, equality between men and women, sustainable and non-inflationary growth, a high degree of competitiveness and convergence of economic performance, a high level of protection and improvement of the quality of the environment, the raising of the standard of living and quality of life, and economic and social cohesion and solidarity among Member States.
***
Without advancing further into the provisions mentioned by Cm 7311, we notice that the objectives of the EU, with the catch-all phrase of ‘economic and social progress’ and ‘a high level of employment’ as well as ‘economic and social cohesion’, and the tasks of the EC with ‘a harmonious, balanced and sustainable development of economic activities, a high level of employment and of social protection’ offer us enough to go on to believe that the rest of Article 5a TFEU (ToL) can plausibly be explained to draw on the provisions mentioned.
In conclusion, we can say that the comparison depends on your choice of angle.
***
There are undeniable similarities between the Constitution and the Lisbon Treaty, since the objective of the IGC 2007 was to preserve much of the advances made by the IGC 2004.
On the other hand, the readers of a book or the audience at a concert are usually more interested in the work published or performed than in the various drafts or the stages of rehearsal that preceded their experience. These are, more often than not, the domain of literary researchers or musicologists, not the public at large.
***
Regardless, I presume that ‘a high level of employment, the guarantee of adequate social protection, the fight against social exclusion, and a high level of education, training and protection of human health’ would find favour with most citizens of the European Union.
Can we truly say of the institutions of the EU: They work for us?
Ralf Grahn
Source:
Foreign and Commonwealth Office: A comparative table of the current EC and EU Treaties as amended by the Treaty of Lisbon; Command Paper (Cm) 7311; 21 January 2008;
http://www.official-documents.gov.uk/document/cm73/7311/7311.asp
***
In the Treaty of Lisbon (ToL) the intergovernmental conference (IGC 2007) decided to insert a new provision having general application into the Treaty establishing the European Community (TEC), renamed the Treaty on the Functioning of the European Union (TFEU). See OJ 17.12.2007 C 306/48:
17) The following Article 5a shall be inserted:
Article 5a TFEU (ToL), to be renumbered Article 9 TFEU
In defining and implementing its policies and activities, the Union shall take into account requirements linked to the promotion of a high level of employment, the guarantee of adequate social protection, the fight against social exclusion, and a high level of education, training and protection of human health.
***
This provision did not appear out of the blue, so we take a look at what the IGC 2004 agreed on three years earlier. In the Treaty establishing a Constitution for Europe, Part III The policies and functioning of the Union, Title I Provisions of general application, we find the following Article III-117 (OJ 16.12.2004 C 310/55):
Article III-117
In defining and implementing the policies and actions referred to in this Part, the Union shall take into account requirements linked to the promotion of a high level of employment, the guarantee of adequate social protection, the fight against social exclusion, and a high level of education, training and protection of human health.
***
The resemblance between the Constitution and the Lisbon Treaty is striking, but contrary to most instances we would look in vain for a corresponding Article proposed by the European Convention in the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169).
Here the IGC 2004 filled a void between the EU’s objectives on the one hand and its policies and actions on the other hand.
Thus, the IGC 2004 can be seen as the true originator of this provision, giving us an example of one of the few improvements authored by the intergovernmental conference when compared to the draft proposed by the European Convention.
***
We can now change tack, to offer another explanation of the new Article in the Lisbon Treaty. Given that the Lisbon Reform Treaty amends the existing Treaty on European Union (TEU) and the TEC, the origins of a provision can be sought in the current treaties.
This is what the UK Foreign and Commonwealth Office does in its Command Paper 7311 A comparative table of the current EC and EU Treaties as amended by the Treaty of Lisbon, concerning Article 9 (5a) TFEU (page 6):
“Draws on Article 2 TEU, and Articles 2, 127, 136, 137, 140, 149, 150 and 152 TEC.”
Earlier, the Explanatory Note has given us the following definition:
“Draws on – where a provision takes elements of existing provisions”
***
The diligent student may want to trace the elements from each of the Articles mentioned, but we are content to present the two main provisions for the sake of comparison, and as a convenient excuse to refresh our memory concerning the treaties in force.
First, we turn to the current Article 2 TEU on the Union’s objectives under Title I Common provisions (in the latest consolidated version, to be found in OJ 29.12.2006 C 321 E/11):
Article 2 TEU
The Union shall set itself the following objectives:
— to promote economic and social progress and a high level of employment and to achieve balanced and sustainable development, in particular through the creation of an area without internal frontiers, through the strengthening of economic and social cohesion and through the establishment of economic and monetary union, ultimately including a single currency in accordance with the provisions of this Treaty,
— to assert its identity on the international scene, in particular through the implementation of a common foreign and security policy including the progressive framing of a common defence policy, which might lead to a common defence, in accordance with the provisions of Article 17,
— to strengthen the protection of the rights and interests of the nationals of its Member States through the introduction of a citizenship of the Union,
— to maintain and develop the Union as an area of freedom, security and justice, in which the free movement of persons is assured in conjunction with appropriate measures with respect to external border controls, asylum, immigration and the prevention and combating of crime,
— to maintain in full the acquis communautaire and build on it with a view to considering to what extent the policies and forms of cooperation introduced by this Treaty may need to be revised with the aim of ensuring the effectiveness of the mechanisms and the institutions of the Community.
The objectives of the Union shall be achieved as provided in this Treaty and in accordance with the conditions and the timetable set out therein while respecting the principle of subsidiarity as defined in Article 5 of the Treaty establishing the European Community.
***
Second, we rehearse the current Article 2 TEC, in Part One, Principles (OJ, page 44):
Article 2 TEC
The Community shall have as its task, by establishing a common market and an economic and monetary union and by implementing common policies or activities referred to in Articles 3 and 4, to promote throughout the Community a harmonious, balanced and sustainable development of economic activities, a high level of employment and of social protection, equality between men and women, sustainable and non-inflationary growth, a high degree of competitiveness and convergence of economic performance, a high level of protection and improvement of the quality of the environment, the raising of the standard of living and quality of life, and economic and social cohesion and solidarity among Member States.
***
Without advancing further into the provisions mentioned by Cm 7311, we notice that the objectives of the EU, with the catch-all phrase of ‘economic and social progress’ and ‘a high level of employment’ as well as ‘economic and social cohesion’, and the tasks of the EC with ‘a harmonious, balanced and sustainable development of economic activities, a high level of employment and of social protection’ offer us enough to go on to believe that the rest of Article 5a TFEU (ToL) can plausibly be explained to draw on the provisions mentioned.
In conclusion, we can say that the comparison depends on your choice of angle.
***
There are undeniable similarities between the Constitution and the Lisbon Treaty, since the objective of the IGC 2007 was to preserve much of the advances made by the IGC 2004.
On the other hand, the readers of a book or the audience at a concert are usually more interested in the work published or performed than in the various drafts or the stages of rehearsal that preceded their experience. These are, more often than not, the domain of literary researchers or musicologists, not the public at large.
***
Regardless, I presume that ‘a high level of employment, the guarantee of adequate social protection, the fight against social exclusion, and a high level of education, training and protection of human health’ would find favour with most citizens of the European Union.
Can we truly say of the institutions of the EU: They work for us?
Ralf Grahn
Source:
Foreign and Commonwealth Office: A comparative table of the current EC and EU Treaties as amended by the Treaty of Lisbon; Command Paper (Cm) 7311; 21 January 2008;
http://www.official-documents.gov.uk/document/cm73/7311/7311.asp
Saturday, 23 February 2008
EU: Complete Dutch consolidated Lisbon Treaty
I want to thank Anonymous who brought to our attention that the government of the Netherlands has published a complete Dutch version of the Treaty of Lisbon on the web pages of the Foreign Ministry,
www.minbuza.nl
The web pages offer us the TEU, TFEU, Euratom Treaty, the Protocols and the Final Act:
1. Verdrag betreffende de Europese Unie
2. Verdrag betreffende de werking van de Europese Unie (voorheen EG-Verdrag)
3. Verdrag tot oprichting van de Europese Gemeenschap voor Atoomenergie (Euratom)
4. Protocollen gehecht aan het Verdrag betreffende de Europese Unie, het Verdrag betreffende de werking van de Europese Unie en/of het Verdrag tot oprichting van de Europese Gemeenschap voor Atoomenergie
5. Slotakte bij het Verdrag van Lissabon, inclusief Verklaringen
Earlier we reported on the private Dutch consolidation compiled by René Barents.
For this and the other consolidated language versions I am aware of, see the latest comprehensive update, the post Consolidated Lisbon Treaty Update (16 February 2008).
Additional information from you, dear readers, is eagerly awaited.
Ralf Grahn
Source:
Nederlands Ministerie van Buitenlands Zaken: Geactualiseerde versies van de Verdragen van de Europese Unie nu beschikbaar; 22 feb 2008;
http://www.minbuza.nl/verdragen/nl/Geconsolideerde_EU_en_EG_Verdragen
www.minbuza.nl
The web pages offer us the TEU, TFEU, Euratom Treaty, the Protocols and the Final Act:
1. Verdrag betreffende de Europese Unie
2. Verdrag betreffende de werking van de Europese Unie (voorheen EG-Verdrag)
3. Verdrag tot oprichting van de Europese Gemeenschap voor Atoomenergie (Euratom)
4. Protocollen gehecht aan het Verdrag betreffende de Europese Unie, het Verdrag betreffende de werking van de Europese Unie en/of het Verdrag tot oprichting van de Europese Gemeenschap voor Atoomenergie
5. Slotakte bij het Verdrag van Lissabon, inclusief Verklaringen
Earlier we reported on the private Dutch consolidation compiled by René Barents.
For this and the other consolidated language versions I am aware of, see the latest comprehensive update, the post Consolidated Lisbon Treaty Update (16 February 2008).
Additional information from you, dear readers, is eagerly awaited.
Ralf Grahn
Source:
Nederlands Ministerie van Buitenlands Zaken: Geactualiseerde versies van de Verdragen van de Europese Unie nu beschikbaar; 22 feb 2008;
http://www.minbuza.nl/verdragen/nl/Geconsolideerde_EU_en_EG_Verdragen
EU TFEU: Gender equality
A new European political star was born. In retrospect the defining moment must have been when she addressed a packed audience at her final election rally with these resounding words:
If I am elected, I am going to do my utmost to repeal paragraph 1 of Article 3, leave paragraph 2 unnumbered and replace the words ‘the activities referred to in this Article’ by ‘its activities’.
[Wild cheers.]
***
Am I pulling your leg? Yes and no.
No politician in her right mind would address even her most devoted followers like this.
On the other hand, this is the direct result of the decisions made by the leading lights of European Union politics, the heads of state or government.
Unbelievable, you say. You need proof, do you?
Can there be anything more convincing than the verification offered by the Official Journal on the unanimous agreement of our national leaders?
***
Here is what the intergovernmental conference (IGC 2007) had to say in the Treaty of Lisbon (ToL) on Article 3 of the Treaty establishing the European Community (TEC), renamed the Treaty on the Functioning of the European Union (TFEU). See OJ 17.12.2007 C 306/48:
14) Paragraph 1 of Article 3 shall be repealed. Paragraph 2 shall be left unnumbered, and the words ‘the activities referred to in this Article,’ shall be replaced by ‘its activities,’.
***
You are excused if you have not grasped their noble intentions. For that we need an excerpt from the current Article 3 TEC (in the latest consolidated version of the TEU and the TEC, OJ 29.12.2006 C 321 E/44-45):
Article 3 TEC
1. For the purposes set out in Article 2, the activities of the Community shall include, as provided in this Treaty and in accordance with the timetable set out therein:
(a) the prohibition, as between Member States, of customs duties and quantitative restrictions on the import and export of goods, and of all other measures having equivalent effect;
(b) a common commercial policy;
(c) an internal market characterised by the abolition, as between Member States, of obstacles to the free movement of goods, persons, services and capital;
(d) measures concerning the entry and movement of persons as provided for in Title IV;
(e) a common policy in the sphere of agriculture and fisheries;
(f) a common policy in the sphere of transport;
(g) a system ensuring that competition in the internal market is not distorted;
(h) the approximation of the laws of Member States to the extent required for the functioning of the common market;
(i) the promotion of coordination between employment policies of the Member States with a view to enhancing their effectiveness by developing a coordinated strategy for employment;
(j) a policy in the social sphere comprising a European Social Fund;
(k) the strengthening of economic and social cohesion;
(l) a policy in the sphere of the environment;
(m) the strengthening of the competitiveness of Community industry;
(n) the promotion of research and technological development;
(o) encouragement for the establishment and development of trans-European networks;
(p) a contribution to the attainment of a high level of health protection;
(q) a contribution to education and training of quality and to the flowering of the cultures of
the Member States;
(r) a policy in the sphere of development cooperation;
(s) the association of the overseas countries and territories in order to increase trade and promote jointly economic and social development;
(t) a contribution to the strengthening of consumer protection;
(u) measures in the spheres of energy, civil protection and tourism.
2. In all the activities referred to in this Article, the Community shall aim to eliminate inequalities, and to promote equality, between men and women.
***
What a delightful way to refresh our memories concerning the existing activities of the European Community (EC), rewritten elsewhere in the Lisbon Treaty.
Having scrapped paragraph 1 and eliminated the number from paragraph 2, we seem to end up with the following:
Article 3 TFEU (ToL), to be renumbered Article 8 TFEU
In all its activities, the Union shall aim to eliminate inequalities, and to promote equality, between men and women.
***
We have a sentence which makes sense. Rather noble and delightful in the end, don’t you agree?
However demanding the quest for equality, one could almost say of the IGC 2007: Easier done than said.
***
We take a look at the intermediary stages, with the European Convention and its draft Treaty establishing a Constitution for Europe, under Title I Clauses of general application (OJ 18.7.2003 C 169/29):
Article III-2
In all the activities referred to in this Part, the Union shall aim to eliminate inequalities, and to promote equality, between men and women.
***
We turn to the Treaty establishing a Constitution for Europe, where the corresponding Article is (OJ 16.12.2004 C 310/55):
Article III-116
In all the activities referred to in this Part, the Union shall aim to eliminate inequalities, and to
promote equality, between women and men.
***
We have seen that we have an unbroken line of provisions from the current TEC, via the draft Constitution and the Constitution until the Lisbon Reform Treaty.
Article 3 TFEU (ToL) addresses all of the institutions and all of the activities of the EU.
Eliminating gender inequality (sex discrimination) is a general principle of Union law.
Promotion of equality requires positive action and secondary legislation.
***
Domestic violence
The Lisbon Treaty takes up a third aspect of gender equality at a political level.
The Final Act of the Treaty of Lisbon contains the relevant Declaration 19, which the IGC 2007 took over word for word from the Constitutional Treaty (where it was numbered 13. Declaration on Article III-116). See OJ 17.12.2007 C 306/255:
19. Declaration on Article 3 of the Treaty on the Functioning of the European Union
The Conference agrees that, in its general efforts to eliminate inequalities between women and men, the Union will aim in its different policies to combat all kinds of domestic violence. The Member States should take all necessary measures to prevent and punish these criminal acts and to support and protect the victims.
***
Part and parcel of the EU legal system, gender equality is something every acceding country has to buy into.
Ralf Grahn
If I am elected, I am going to do my utmost to repeal paragraph 1 of Article 3, leave paragraph 2 unnumbered and replace the words ‘the activities referred to in this Article’ by ‘its activities’.
[Wild cheers.]
***
Am I pulling your leg? Yes and no.
No politician in her right mind would address even her most devoted followers like this.
On the other hand, this is the direct result of the decisions made by the leading lights of European Union politics, the heads of state or government.
Unbelievable, you say. You need proof, do you?
Can there be anything more convincing than the verification offered by the Official Journal on the unanimous agreement of our national leaders?
***
Here is what the intergovernmental conference (IGC 2007) had to say in the Treaty of Lisbon (ToL) on Article 3 of the Treaty establishing the European Community (TEC), renamed the Treaty on the Functioning of the European Union (TFEU). See OJ 17.12.2007 C 306/48:
14) Paragraph 1 of Article 3 shall be repealed. Paragraph 2 shall be left unnumbered, and the words ‘the activities referred to in this Article,’ shall be replaced by ‘its activities,’.
***
You are excused if you have not grasped their noble intentions. For that we need an excerpt from the current Article 3 TEC (in the latest consolidated version of the TEU and the TEC, OJ 29.12.2006 C 321 E/44-45):
Article 3 TEC
1. For the purposes set out in Article 2, the activities of the Community shall include, as provided in this Treaty and in accordance with the timetable set out therein:
(a) the prohibition, as between Member States, of customs duties and quantitative restrictions on the import and export of goods, and of all other measures having equivalent effect;
(b) a common commercial policy;
(c) an internal market characterised by the abolition, as between Member States, of obstacles to the free movement of goods, persons, services and capital;
(d) measures concerning the entry and movement of persons as provided for in Title IV;
(e) a common policy in the sphere of agriculture and fisheries;
(f) a common policy in the sphere of transport;
(g) a system ensuring that competition in the internal market is not distorted;
(h) the approximation of the laws of Member States to the extent required for the functioning of the common market;
(i) the promotion of coordination between employment policies of the Member States with a view to enhancing their effectiveness by developing a coordinated strategy for employment;
(j) a policy in the social sphere comprising a European Social Fund;
(k) the strengthening of economic and social cohesion;
(l) a policy in the sphere of the environment;
(m) the strengthening of the competitiveness of Community industry;
(n) the promotion of research and technological development;
(o) encouragement for the establishment and development of trans-European networks;
(p) a contribution to the attainment of a high level of health protection;
(q) a contribution to education and training of quality and to the flowering of the cultures of
the Member States;
(r) a policy in the sphere of development cooperation;
(s) the association of the overseas countries and territories in order to increase trade and promote jointly economic and social development;
(t) a contribution to the strengthening of consumer protection;
(u) measures in the spheres of energy, civil protection and tourism.
2. In all the activities referred to in this Article, the Community shall aim to eliminate inequalities, and to promote equality, between men and women.
***
What a delightful way to refresh our memories concerning the existing activities of the European Community (EC), rewritten elsewhere in the Lisbon Treaty.
Having scrapped paragraph 1 and eliminated the number from paragraph 2, we seem to end up with the following:
Article 3 TFEU (ToL), to be renumbered Article 8 TFEU
In all its activities, the Union shall aim to eliminate inequalities, and to promote equality, between men and women.
***
We have a sentence which makes sense. Rather noble and delightful in the end, don’t you agree?
However demanding the quest for equality, one could almost say of the IGC 2007: Easier done than said.
***
We take a look at the intermediary stages, with the European Convention and its draft Treaty establishing a Constitution for Europe, under Title I Clauses of general application (OJ 18.7.2003 C 169/29):
Article III-2
In all the activities referred to in this Part, the Union shall aim to eliminate inequalities, and to promote equality, between men and women.
***
We turn to the Treaty establishing a Constitution for Europe, where the corresponding Article is (OJ 16.12.2004 C 310/55):
Article III-116
In all the activities referred to in this Part, the Union shall aim to eliminate inequalities, and to
promote equality, between women and men.
***
We have seen that we have an unbroken line of provisions from the current TEC, via the draft Constitution and the Constitution until the Lisbon Reform Treaty.
Article 3 TFEU (ToL) addresses all of the institutions and all of the activities of the EU.
Eliminating gender inequality (sex discrimination) is a general principle of Union law.
Promotion of equality requires positive action and secondary legislation.
***
Domestic violence
The Lisbon Treaty takes up a third aspect of gender equality at a political level.
The Final Act of the Treaty of Lisbon contains the relevant Declaration 19, which the IGC 2007 took over word for word from the Constitutional Treaty (where it was numbered 13. Declaration on Article III-116). See OJ 17.12.2007 C 306/255:
19. Declaration on Article 3 of the Treaty on the Functioning of the European Union
The Conference agrees that, in its general efforts to eliminate inequalities between women and men, the Union will aim in its different policies to combat all kinds of domestic violence. The Member States should take all necessary measures to prevent and punish these criminal acts and to support and protect the victims.
***
Part and parcel of the EU legal system, gender equality is something every acceding country has to buy into.
Ralf Grahn
Friday, 22 February 2008
European Parliament: Fraud or worse?
It is bad enough if there has been widespread misuse of funds by members of the European Parliament. It would be far worse if the European Parliament does not act swiftly to put things right.
First, the EP’s leadership should announce when the complete findings of the report on alleged misappropriations is to be put in the public domain. Yes, complete and unsanitized.
Second, the EP should presently tell the public how it is going to proceed to bring the culprits to justice and to eradicate further abuse of public funds.
Third, the EP should report openly and extensively on the results of its actions.
***
Fraud is bad enough, and it should rightly miscredit guilty parties and lead to court action, if such is warranted. Cover up by the EP would miscredit the whole institution.
Only swift and decisive action can restore faith in the European Parliament as the representative body of 490 million EU citizens.
Ralf Grahn
P.S. Please, inform us if action has been taken.
P.S. II, Later addition: Having tried, in vain, to find 'crisis communication' of the web site of the European Parliament, I sent the following request to the EP's Press Office:
A little while ago I tried to find information on the EP's web site on allegations of misappropriation of public funds by members of the European Parliament.
A situation like this would require swift and decisive information from any institution.
Not finding any, I beg you to inform me when action is taken in order to present the situation as fairly as possible to the readers of my blog.
Best regards,
Ralf Grahn
First, the EP’s leadership should announce when the complete findings of the report on alleged misappropriations is to be put in the public domain. Yes, complete and unsanitized.
Second, the EP should presently tell the public how it is going to proceed to bring the culprits to justice and to eradicate further abuse of public funds.
Third, the EP should report openly and extensively on the results of its actions.
***
Fraud is bad enough, and it should rightly miscredit guilty parties and lead to court action, if such is warranted. Cover up by the EP would miscredit the whole institution.
Only swift and decisive action can restore faith in the European Parliament as the representative body of 490 million EU citizens.
Ralf Grahn
P.S. Please, inform us if action has been taken.
P.S. II, Later addition: Having tried, in vain, to find 'crisis communication' of the web site of the European Parliament, I sent the following request to the EP's Press Office:
A little while ago I tried to find information on the EP's web site on allegations of misappropriation of public funds by members of the European Parliament.
A situation like this would require swift and decisive information from any institution.
Not finding any, I beg you to inform me when action is taken in order to present the situation as fairly as possible to the readers of my blog.
Best regards,
Ralf Grahn
EU TFEU: Consistency
Today we start to look at a new Title in the Treaty of Lisbon, with Provisions having general application, meaning that they apply across the Treaty on the Functioning of the European Union (TFEU).
Out of academic interest, we run a genetics test on a newborn provision.
***
In the Treaty of Lisbon (ToL) the Treaty establishing the European Community (TEC), under its new name, the Treaty on the Functioning of the European Union (TFEU), Part One of the treaty introduces a Title II Provisions having general application.
At the beginning of Title II, the intergovernmental conference (IGC 2007) inserted a new Article 2f into the Treaty of Lisbon, under (OJ 17.12.2007 C 306/47):
Article 2f TFEU (ToL), to be renumbered Article 7 TFEU
The Union shall ensure consistency between its policies and activities, taking all of its objectives
into account and in accordance with the principle of conferral of powers.
***
When we turn to the corresponding Article III-115 in the Treaty establishing a Constitution for Europe, we notice that it stands at the beginning of Part III The policies and functioning of the Union and its Title I Provisions of general application.
We have often looked at the similarities between corresponding Articles in the Lisbon Treaty, the Constitution and the draft Constitution, but here we have an opportunity to notice how much in common the different versions have structurally. Part III on the … functioning of the Union reminds us of the Treaty on the Functioning of the European Union.
And the Title level headings are almost identical between the Lisbon Treaty and the Constitution.
The likeness does not end there, as you see if you read Article III-115 of the Constitutional Treaty and notice only a small change of style (OJ 16.12.2004 C 310/55):
PART III
THE POLICIES AND FUNCTIONING OF THE UNION
TITLE I
PROVISIONS OF GENERAL APPLICATION
Article III-115
The Union shall ensure consistency between the policies and activities referred to in this Part, taking all of its objectives into account and in accordance with the principle of conferral of powers.
***
Next, our Time Machine takes us to the draft Treaty establishing a Constitution for Europe. We look at both the structure and the wording (OJ 18.7.2003 C 169/29):
PART III
THE POLICIES AND FUNCTIONING OF THE UNION
TITLE I
CLAUSES OF GENERAL APPLICATION
Article III-1
The Union shall ensure consistency between the different policies and activities referred to in this Part, taking all of the Union's objectives into account and in accordance with the principle of conferring of powers.
***
As you can see, there is not much between the three versions, and since the provision is new, it leads to the conclusion that after a few years of stagnation we might actually be allowed to benefit from the work of the European Convention.
***
The origins of Article 2f TFEU (ToL) have been attributed differently. The UK Foreign and Commonwealth Office (FCO) rounds up the widest circle of suspects, four different Articles:
“Draws on Articles 1 and 3 TEU, and Articles 5 and 7 TEC.”
The number of paternity candidates does not matter that much, although it is intriguing how a short Article like 2f TFEU can draw on such an extensive gene pool, but each of them gives us an opportunity to get acquainted with the TEU and TEC, the treaties in force. For the latest consolidated version of the current treaties we go to OJ 29.12.2006 C 321 E/1.
So, out of academic interest, let us see what Article 1 TEU has to offer:
Article 1 TEU
By this Treaty, the HIGH CONTRACTING PARTIES establish among themselves a EUROPEAN
UNION, hereinafter called ‘the Union’.
This Treaty marks a new stage in the process of creating an ever closer union among the peoples
of Europe, in which decisions are taken as openly as possible and as closely as possible to the
citizen.
The Union shall be founded on the European Communities, supplemented by the policies and
forms of cooperation established by this Treaty. Its task shall be to organise, in a manner
demonstrating consistency and solidarity, relations between the Member States and between their
peoples.
***
Article 1 TEU at least gave us ‘policies’ and ’consistency’, and Article 3 TEU mentions ‘activies’ and ‘consistency’ (thrice):
Article 3 TEU
The Union shall be served by a single institutional framework which shall ensure the consistency
and the continuity of the activities carried out in order to attain its objectives while respecting and building upon the acquis communautaire.
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.
***
Article 5 TEC seems to contribute with ’powers conferred’ and ‘objectives’:
Article 5 TEC
The Community shall act within the limits of the powers conferred upon it by this Treaty and of
the objectives assigned to it therein.
In areas which do not fall within its exclusive competence, the Community shall take action, in
accordance with the principle of subsidiarity, only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States and can therefore, by reason of the scale or effects of the proposed action, be better achieved by the Community.
Any action by the Community shall not go beyond what is necessary to achieve the objectives of
this Treaty.
***
Beaming with pride, Article 7 TEC lays claim to the striking family resemblance with its ‘powers conferred’:
Article 7 TEC
1. The tasks entrusted to the Community shall be carried out by the following institutions:
— a EUROPEAN PARLIAMENT,
— a COUNCIL,
— a COMMISSION,
— a COURT OF JUSTICE,
— a COURT OF AUDITORS.
Each institution shall act within the limits of the powers conferred upon it by this Treaty.
2. The Council and the Commission shall be assisted by an Economic and Social Committee
and a Committee of the Regions acting in an advisory capacity.
***
We do not know if Article 2f TFEU is going to survive the perilous times of infant mortality that EU treaties are prone to before ratification, but we know that newborn has inherited a number of its noble traits from its elders.
Ralf Grahn
Source:
Foreign and Commonwealth Office: A comparative table of the current EC and EU Treaties as amended by the Treaty of Lisbon; Command Paper (Cm) 7311; 21 January 2008;
http://www.official-documents.gov.uk/document/cm73/7311/7311.asp
Out of academic interest, we run a genetics test on a newborn provision.
***
In the Treaty of Lisbon (ToL) the Treaty establishing the European Community (TEC), under its new name, the Treaty on the Functioning of the European Union (TFEU), Part One of the treaty introduces a Title II Provisions having general application.
At the beginning of Title II, the intergovernmental conference (IGC 2007) inserted a new Article 2f into the Treaty of Lisbon, under (OJ 17.12.2007 C 306/47):
Article 2f TFEU (ToL), to be renumbered Article 7 TFEU
The Union shall ensure consistency between its policies and activities, taking all of its objectives
into account and in accordance with the principle of conferral of powers.
***
When we turn to the corresponding Article III-115 in the Treaty establishing a Constitution for Europe, we notice that it stands at the beginning of Part III The policies and functioning of the Union and its Title I Provisions of general application.
We have often looked at the similarities between corresponding Articles in the Lisbon Treaty, the Constitution and the draft Constitution, but here we have an opportunity to notice how much in common the different versions have structurally. Part III on the … functioning of the Union reminds us of the Treaty on the Functioning of the European Union.
And the Title level headings are almost identical between the Lisbon Treaty and the Constitution.
The likeness does not end there, as you see if you read Article III-115 of the Constitutional Treaty and notice only a small change of style (OJ 16.12.2004 C 310/55):
PART III
THE POLICIES AND FUNCTIONING OF THE UNION
TITLE I
PROVISIONS OF GENERAL APPLICATION
Article III-115
The Union shall ensure consistency between the policies and activities referred to in this Part, taking all of its objectives into account and in accordance with the principle of conferral of powers.
***
Next, our Time Machine takes us to the draft Treaty establishing a Constitution for Europe. We look at both the structure and the wording (OJ 18.7.2003 C 169/29):
PART III
THE POLICIES AND FUNCTIONING OF THE UNION
TITLE I
CLAUSES OF GENERAL APPLICATION
Article III-1
The Union shall ensure consistency between the different policies and activities referred to in this Part, taking all of the Union's objectives into account and in accordance with the principle of conferring of powers.
***
As you can see, there is not much between the three versions, and since the provision is new, it leads to the conclusion that after a few years of stagnation we might actually be allowed to benefit from the work of the European Convention.
***
The origins of Article 2f TFEU (ToL) have been attributed differently. The UK Foreign and Commonwealth Office (FCO) rounds up the widest circle of suspects, four different Articles:
“Draws on Articles 1 and 3 TEU, and Articles 5 and 7 TEC.”
The number of paternity candidates does not matter that much, although it is intriguing how a short Article like 2f TFEU can draw on such an extensive gene pool, but each of them gives us an opportunity to get acquainted with the TEU and TEC, the treaties in force. For the latest consolidated version of the current treaties we go to OJ 29.12.2006 C 321 E/1.
So, out of academic interest, let us see what Article 1 TEU has to offer:
Article 1 TEU
By this Treaty, the HIGH CONTRACTING PARTIES establish among themselves a EUROPEAN
UNION, hereinafter called ‘the Union’.
This Treaty marks a new stage in the process of creating an ever closer union among the peoples
of Europe, in which decisions are taken as openly as possible and as closely as possible to the
citizen.
The Union shall be founded on the European Communities, supplemented by the policies and
forms of cooperation established by this Treaty. Its task shall be to organise, in a manner
demonstrating consistency and solidarity, relations between the Member States and between their
peoples.
***
Article 1 TEU at least gave us ‘policies’ and ’consistency’, and Article 3 TEU mentions ‘activies’ and ‘consistency’ (thrice):
Article 3 TEU
The Union shall be served by a single institutional framework which shall ensure the consistency
and the continuity of the activities carried out in order to attain its objectives while respecting and building upon the acquis communautaire.
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.
***
Article 5 TEC seems to contribute with ’powers conferred’ and ‘objectives’:
Article 5 TEC
The Community shall act within the limits of the powers conferred upon it by this Treaty and of
the objectives assigned to it therein.
In areas which do not fall within its exclusive competence, the Community shall take action, in
accordance with the principle of subsidiarity, only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States and can therefore, by reason of the scale or effects of the proposed action, be better achieved by the Community.
Any action by the Community shall not go beyond what is necessary to achieve the objectives of
this Treaty.
***
Beaming with pride, Article 7 TEC lays claim to the striking family resemblance with its ‘powers conferred’:
Article 7 TEC
1. The tasks entrusted to the Community shall be carried out by the following institutions:
— a EUROPEAN PARLIAMENT,
— a COUNCIL,
— a COMMISSION,
— a COURT OF JUSTICE,
— a COURT OF AUDITORS.
Each institution shall act within the limits of the powers conferred upon it by this Treaty.
2. The Council and the Commission shall be assisted by an Economic and Social Committee
and a Committee of the Regions acting in an advisory capacity.
***
We do not know if Article 2f TFEU is going to survive the perilous times of infant mortality that EU treaties are prone to before ratification, but we know that newborn has inherited a number of its noble traits from its elders.
Ralf Grahn
Source:
Foreign and Commonwealth Office: A comparative table of the current EC and EU Treaties as amended by the Treaty of Lisbon; Command Paper (Cm) 7311; 21 January 2008;
http://www.official-documents.gov.uk/document/cm73/7311/7311.asp
Thursday, 21 February 2008
EU TFEU: Support, coordinate and supplement
There are at least three kinds of changes to look out for, when we try to make sense of what the Treaty of Lisbon means for the European Union (EU):
1) Where do the amended treaties, the Treaty on European Union (TEU) and the Treaty establishing the European Community (TEC), renamed the Treaty on the Functioning of the European Union (TFEU) introduce substantial or material changes?
2) When do the differences aim at better methodology or presentation?
3) Which amendments, including most horizontal ones, merely result from certain choices of terminology followed throughout?
The provisions introducing EU (‘Community’) competences in the TFEU offer us examples from each group.
You are offered an opportunity to test your own thinking, based on the following presentation.
***
The intergovernmental conference decided to supplement its exposition of EU competences by inserting an Article 2e TFEU in the Treaty of Lisbon (ToL). See OJ 17.12.2007 c 306/47:
Article 2e TFEU (ToL), after renumbering Article 6 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.
***
Going backwards we can compare TFEU Article 2e of the Lisbon Treaty with its nearest antecedent, Article I-17 Areas of supporting, coordinating or complementary action of the Treaty establishing a Constitution for Europe (OJ 16.12.2004 C 310/17):
Article I-17
Areas of supporting, coordinating or complementary action
The Union shall have competence to carry out supporting, coordinating or complementary action. 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, youth, sport and vocational training;
(f) civil protection;
(g) administrative cooperation.
***
The differences between the corresponding Articles in the ToL and the Constitution are minute (supplement / complement).
***
The basis for the IGC 2004 which agreed on the Constitutional Treaty was the European Convention and its draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/11):
Article I-16
Areas of supporting, coordinating or complementary action
1. The Union may take supporting, coordinating or complementary action.
2. The areas for supporting, coordinating or complementary action shall be, at European level:
— industry,
— protection and improvement of human health,
— education, vocational training, youth and sport,
— culture,
— civil protection.
3. Legally binding acts adopted by the Union on the basis of the provisions specific to these areas in Part III may not entail harmonisation of Member States' laws or regulations.
***
There are some differences between the draft Constitution and the Constitution. Let us take a closer look.
If we disregard the changes which appear to be only of an editorial nature, we notice the addition of two areas between the Convention and the Constitution. The IGC 2004 added tourism and administrative cooperation.
Dropping paragraph 3 of the Convention draft does not extend EU powers to harmonise member states’ legislation, since Article 12(5) of the Constitutional Treaty (OJ 16.12.2004 C 310/15) and Article 2a(5) TFEU (ToL) already provide this restriction:
Article 2a(5) TFEU (ToL)
5. In certain areas and under the conditions laid down in the Treaties, the Union shall have
competence to carry out actions to support, coordinate or supplement the actions of the
Member States, without thereby superseding their competence in these areas.
Legally binding acts of the Union adopted on the basis of the provisions of the Treaties relating
to these areas shall not entail harmonisation of Member States' laws or regulations.
***
The Constitution and the Convention are only intermediary stages in a long reform process leading up to the Lisbon Treaty. The meaningful comparison, from a material point of view, is what the Reform Treaty changes compared to the current treaties.
Let us look briefly at the different areas. What stays the same? What is new and when was it introduced?
The general, but less systematic presentation in the existing Article 3 TEC offers us a picture of the activities of the European Community (latest consolidated version OJ 29.12.2006 C 321 E/44-45).
Article 3 TEC
1. For the purposes set out in Article 2, the activities of the Community shall include, as provided in this Treaty and in accordance with the timetable set out therein:
(a) the prohibition, as between Member States, of customs duties and quantitative restrictions on the import and export of goods, and of all other measures having equivalent effect;
(b) a common commercial policy;
(c) an internal market characterised by the abolition, as between Member States, of obstacles to the free movement of goods, persons, services and capital;
(d) measures concerning the entry and movement of persons as provided for in Title IV;
(e) a common policy in the sphere of agriculture and fisheries;
(f) a common policy in the sphere of transport;
(g) a system ensuring that competition in the internal market is not distorted;
(h) the approximation of the laws of Member States to the extent required for the functioning of the common market;
(i) the promotion of coordination between employment policies of the Member States with a view to enhancing their effectiveness by developing a coordinated strategy for employment;
(j) a policy in the social sphere comprising a European Social Fund;
(k) the strengthening of economic and social cohesion;
(l) a policy in the sphere of the environment;
(m) the strengthening of the competitiveness of Community industry;
(n) the promotion of research and technological development;
(o) encouragement for the establishment and development of trans-European networks;
(p) a contribution to the attainment of a high level of health protection;
(q) a contribution to education and training of quality and to the flowering of the cultures of the Member States;
(r) a policy in the sphere of development cooperation;
(s) the association of the overseas countries and territories in order to increase trade and promote jointly economic and social development;
(t) a contribution to the strengthening of consumer protection;
(u) measures in the spheres of energy, civil protection and tourism.
2. In all the activities referred to in this Article, the Community shall aim to eliminate
inequalities, and to promote equality, between men and women.
***
Existing areas
The following areas mentioned in the TFEU (ToL) are already covered by detailed TEC provisions:
(a) Complementing member states’ activities for human health protection is elaborated in Article 152 TEC. (Article III-179 draft Constitution, Article III-278 Constitution).
(b) Actions to ensure that the conditions necessary for the competitiveness of the Community's industry exist are elaborated in Article 157 TEC. (Article III-180 draft Constitution, Article III-279 Constitution)
(c) Cultural cooperation is covered in Article 151 TEC. (Article III-181 draft Constitution, Article III-280 Constitution).
(e) Article 149 TEC takes up education, vocational training and youth. (Articles III-182 and III-183 draft Constitution, Articles III-282 and III-283 Constitution).
***
“Orphans”
Civil protection and tourism, introduced by the Treaty of Maastricht, are mentioned in Article 3(1)(u) TEC, but lack material provisions. This means that action has relied on and been confined to the unanimity and other requirements of the flexibility clause, Article 308 TEC.
These “orphans” were “adopted” by giving them “parents” in the form of substantial provisions in the following way:
Civil protection (f) was taken up and given a substantial provision by the Convention, Article III-184 draft Constitution. (Article III-284 Constitution).
Tourism (d) was accorded the same treatment only by the IGC 2004, with the material Constitutional Treaty Article III-281.
***
New areas
Sport (e) was introduced by the Convention, inserted into the substantial Article III-182 draft Constitution. (Article III-282 Constitution).
Administrative cooperation (g) was introduced by the Convention, with Article III-185 of the draft Constitution offering contents. (Article III-285 Constitution).
***
If you want to get a closer look at EU supporting action in a certain area, your next stop would be to look up the relevant TFEU provision in the Reform Treaty (and, perhaps, trace the changes from its antecedents).
***
We can see that both the Convention and the IGC 2004 contributed towards the ToL novelties concerning EU action to support, coordinate or supplement the actions of the member states, but that the IGC 2007 added nothing to what had been reached in the previous intergovernmental conference.
Ralf Grahn
1) Where do the amended treaties, the Treaty on European Union (TEU) and the Treaty establishing the European Community (TEC), renamed the Treaty on the Functioning of the European Union (TFEU) introduce substantial or material changes?
2) When do the differences aim at better methodology or presentation?
3) Which amendments, including most horizontal ones, merely result from certain choices of terminology followed throughout?
The provisions introducing EU (‘Community’) competences in the TFEU offer us examples from each group.
You are offered an opportunity to test your own thinking, based on the following presentation.
***
The intergovernmental conference decided to supplement its exposition of EU competences by inserting an Article 2e TFEU in the Treaty of Lisbon (ToL). See OJ 17.12.2007 c 306/47:
Article 2e TFEU (ToL), after renumbering Article 6 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.
***
Going backwards we can compare TFEU Article 2e of the Lisbon Treaty with its nearest antecedent, Article I-17 Areas of supporting, coordinating or complementary action of the Treaty establishing a Constitution for Europe (OJ 16.12.2004 C 310/17):
Article I-17
Areas of supporting, coordinating or complementary action
The Union shall have competence to carry out supporting, coordinating or complementary action. 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, youth, sport and vocational training;
(f) civil protection;
(g) administrative cooperation.
***
The differences between the corresponding Articles in the ToL and the Constitution are minute (supplement / complement).
***
The basis for the IGC 2004 which agreed on the Constitutional Treaty was the European Convention and its draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/11):
Article I-16
Areas of supporting, coordinating or complementary action
1. The Union may take supporting, coordinating or complementary action.
2. The areas for supporting, coordinating or complementary action shall be, at European level:
— industry,
— protection and improvement of human health,
— education, vocational training, youth and sport,
— culture,
— civil protection.
3. Legally binding acts adopted by the Union on the basis of the provisions specific to these areas in Part III may not entail harmonisation of Member States' laws or regulations.
***
There are some differences between the draft Constitution and the Constitution. Let us take a closer look.
If we disregard the changes which appear to be only of an editorial nature, we notice the addition of two areas between the Convention and the Constitution. The IGC 2004 added tourism and administrative cooperation.
Dropping paragraph 3 of the Convention draft does not extend EU powers to harmonise member states’ legislation, since Article 12(5) of the Constitutional Treaty (OJ 16.12.2004 C 310/15) and Article 2a(5) TFEU (ToL) already provide this restriction:
Article 2a(5) TFEU (ToL)
5. In certain areas and under the conditions laid down in the Treaties, the Union shall have
competence to carry out actions to support, coordinate or supplement the actions of the
Member States, without thereby superseding their competence in these areas.
Legally binding acts of the Union adopted on the basis of the provisions of the Treaties relating
to these areas shall not entail harmonisation of Member States' laws or regulations.
***
The Constitution and the Convention are only intermediary stages in a long reform process leading up to the Lisbon Treaty. The meaningful comparison, from a material point of view, is what the Reform Treaty changes compared to the current treaties.
Let us look briefly at the different areas. What stays the same? What is new and when was it introduced?
The general, but less systematic presentation in the existing Article 3 TEC offers us a picture of the activities of the European Community (latest consolidated version OJ 29.12.2006 C 321 E/44-45).
Article 3 TEC
1. For the purposes set out in Article 2, the activities of the Community shall include, as provided in this Treaty and in accordance with the timetable set out therein:
(a) the prohibition, as between Member States, of customs duties and quantitative restrictions on the import and export of goods, and of all other measures having equivalent effect;
(b) a common commercial policy;
(c) an internal market characterised by the abolition, as between Member States, of obstacles to the free movement of goods, persons, services and capital;
(d) measures concerning the entry and movement of persons as provided for in Title IV;
(e) a common policy in the sphere of agriculture and fisheries;
(f) a common policy in the sphere of transport;
(g) a system ensuring that competition in the internal market is not distorted;
(h) the approximation of the laws of Member States to the extent required for the functioning of the common market;
(i) the promotion of coordination between employment policies of the Member States with a view to enhancing their effectiveness by developing a coordinated strategy for employment;
(j) a policy in the social sphere comprising a European Social Fund;
(k) the strengthening of economic and social cohesion;
(l) a policy in the sphere of the environment;
(m) the strengthening of the competitiveness of Community industry;
(n) the promotion of research and technological development;
(o) encouragement for the establishment and development of trans-European networks;
(p) a contribution to the attainment of a high level of health protection;
(q) a contribution to education and training of quality and to the flowering of the cultures of the Member States;
(r) a policy in the sphere of development cooperation;
(s) the association of the overseas countries and territories in order to increase trade and promote jointly economic and social development;
(t) a contribution to the strengthening of consumer protection;
(u) measures in the spheres of energy, civil protection and tourism.
2. In all the activities referred to in this Article, the Community shall aim to eliminate
inequalities, and to promote equality, between men and women.
***
Existing areas
The following areas mentioned in the TFEU (ToL) are already covered by detailed TEC provisions:
(a) Complementing member states’ activities for human health protection is elaborated in Article 152 TEC. (Article III-179 draft Constitution, Article III-278 Constitution).
(b) Actions to ensure that the conditions necessary for the competitiveness of the Community's industry exist are elaborated in Article 157 TEC. (Article III-180 draft Constitution, Article III-279 Constitution)
(c) Cultural cooperation is covered in Article 151 TEC. (Article III-181 draft Constitution, Article III-280 Constitution).
(e) Article 149 TEC takes up education, vocational training and youth. (Articles III-182 and III-183 draft Constitution, Articles III-282 and III-283 Constitution).
***
“Orphans”
Civil protection and tourism, introduced by the Treaty of Maastricht, are mentioned in Article 3(1)(u) TEC, but lack material provisions. This means that action has relied on and been confined to the unanimity and other requirements of the flexibility clause, Article 308 TEC.
These “orphans” were “adopted” by giving them “parents” in the form of substantial provisions in the following way:
Civil protection (f) was taken up and given a substantial provision by the Convention, Article III-184 draft Constitution. (Article III-284 Constitution).
Tourism (d) was accorded the same treatment only by the IGC 2004, with the material Constitutional Treaty Article III-281.
***
New areas
Sport (e) was introduced by the Convention, inserted into the substantial Article III-182 draft Constitution. (Article III-282 Constitution).
Administrative cooperation (g) was introduced by the Convention, with Article III-185 of the draft Constitution offering contents. (Article III-285 Constitution).
***
If you want to get a closer look at EU supporting action in a certain area, your next stop would be to look up the relevant TFEU provision in the Reform Treaty (and, perhaps, trace the changes from its antecedents).
***
We can see that both the Convention and the IGC 2004 contributed towards the ToL novelties concerning EU action to support, coordinate or supplement the actions of the member states, but that the IGC 2007 added nothing to what had been reached in the previous intergovernmental conference.
Ralf Grahn
Wednesday, 20 February 2008
EU: TFEU Policy coordination
The systematic approach towards competences of the European Union in the Treaty of Lisbon includes mandatory coordination of member states policies in two important areas, economic and employment policies, with an option to take coordinating initiatives in a third, social policies.
Drafting novelties for better presentation do not necessarily change the way the European Union works. A mechanical comparison between the Lisbon Treaty and the Constitution is therefore of limited value, unless we elucidate the substantial changes or lack of them, and consider what they mean in relation to the present treaties, the ones which actually are amended.
To contribute to the knowledge of all sides about the EU and its workings, regardless of the recipients’ (and the comparer’s) preconceived views, these comparisons have to be made as objectively as possible.
In addition, I allow myself both value judgments and banter, trying to make clear when I am writing in objective and when in subjective mode. (Today’s epistle is not especially representative of the latter, being almost wholly factual in tone.)
***
In the Treaty of Lisbon (ToL) the intergovernmental conference inserted a new Article 2d TFEU (OJ 17.12.2007 C 306/47):
Article 2d TFEU (ToL), to be renumbered Article 5 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.
***
Since many visitors seem to be interested in the similarities and differences between the Lisbon Treaty and the Constitution, we can track the history backwards until we reach the existing treaties, the ones actually being amended.
The Treaty establishing a Constitution for Europe contained the following Article I-15 The coordination of economic and employment policies (OJ 16.12.2004 C 310/17):
Article I-15
The coordination of economic and employment policies
1. The Member States shall coordinate their economic policies within the Union. To this end, the Council of Ministers 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.
***
We can conclude that the Lisbon Treaty has taken over this Article of the Constitutional Treaty unchanged.
The following stop is the European Convention and its draft Treaty establishing a Constitution for Europe, where the corresponding provision is Article I-14 (OJ 18.7.2003 C 169/11):
Article 14
The coordination of economic and employment policies
1. The Union shall adopt measures to ensure coordination of the economic policies of the Member States, in particular by adopting broad guidelines for these policies. The Member States shall coordinate their economic policies within the Union.
2. Specific provisions shall apply to those Member States which have adopted the euro.
3. The Union shall adopt measures to ensure coordination of the employment policies of the Member States, in particular by adopting guidelines for these policies.
4. The Union may adopt initiatives to ensure coordination of Member States' social policies.
***
Basically, the new Article was introduced by the Convention, although the IGC 2004 made some editorial changes. Paragraph 1 of each version seems to indicate some substantial shift, the Constitution being slightly more wishy-washy than its predecessor.
***
Coordination of member states’ economic policies, including the broad economic policy guidelines, is firmly based in the current TEC, where Articles 98 and 99 offers a range of activities (for the latest consolidated version of the TEU and TEC, go to OJ 29.12.2006 C 321 E/82-83):
CHAPTER 1 TEC
ECONOMIC POLICY
Article 98
Member States shall conduct their economic policies with a view to contributing to the achievement of the objectives of the Community, as defined in Article 2, and in the context of the broad guidelines referred to in Article 99(2). The Member States and the Community shall act in accordance with the principle of an open market economy with free competition, favouring an efficient allocation of resources, and in compliance with the principles set out in Article 4.
Article 99
1. Member States shall regard their economic policies as a matter of common concern and shall coordinate them within the Council, in accordance with the provisions of Article 98.
2. The Council shall, acting by a qualified majority on a recommendation from the Commission, formulate a draft for the broad guidelines of the economic policies of the Member States and of the Community, and shall report its findings to the European Council.
The European Council shall, acting on the basis of the report from the Council, discuss a conclusion on the broad guidelines of the economic policies of the Member States and of the Community.
On the basis of this conclusion, the Council shall, acting by a qualified majority, adopt a recommendation setting out these broad guidelines. The Council shall inform the European Parliament of its recommendation.
3. In order to ensure closer coordination of economic policies and sustained convergence of the economic performances of the Member States, the Council shall, on the basis of reports submitted by the Commission, monitor economic developments in each of the Member States and in the Community as well as the consistency of economic policies with the broad guidelines referred to in paragraph 2, and regularly carry out an overall assessment.
For the purpose of this multilateral surveillance, Member States shall forward information to the Commission about important measures taken by them in the field of their economic policy and such other information as they deem necessary.
4. Where it is established, under the procedure referred to in paragraph 3, that the economic policies of a Member State are not consistent with the broad guidelines referred to in paragraph 2 or that they risk jeopardising the proper functioning of economic and monetary union, the Council may, acting by a qualified majority on a recommendation from the Commission, make the necessary recommendations to the Member State concerned. The Council may, acting by a qualified majority on a proposal from the Commission, decide to make its recommendations public.
The President of the Council and the Commission shall report to the European Parliament on the results of multilateral surveillance. The President of the Council may be invited to appear before the competent committee of the European Parliament if the Council has made its recommendations public.
5. The Council, acting in accordance with the procedure referred to in Article 252, may adopt detailed rules for the multilateral surveillance procedure referred to in paragraphs 3 and 4 of this Article.
***
The interested reader can find additional information in the following official documents:
Council Recommendation 2005/601/EC of 12 July 2005 on the broad economic policy guidelines of the Member States and the Community (2005 – 2008) (OJ 6.8.2005 L 205)
Council Recommendation 2007/209/EC of 27 March 2007 on the 2007 update of the broad guidelines for the economic policies of the Member States and the Community and on the implementation of Member States' employment policies (OJ 3.4.2007 L 92)
There is a convenient presentation of the Broad economic policy guidelines (2005 – 2008) available on the Commission’s Scadplus web pages:
http://europa.eu/scadplus/leg/en/lvb/l25078.htm
***
Specific provisions apply to those Member States whose currency is the euro. Monetary policy for the Eurozone is an exclusive EU competence according to the TFEU. How the members belonging to the Eurozone handle their economic policies has direct implications for the monetary policy.
We are going to encounter the detailed provisions later, but at this stage I will only draw your attention to the Protocol on the Euro Group annexed to the Lisbon Treaty, with informal meetings of the (Finance) Ministers and a President elected for two and a half years, an arrangement currently in use (OJ 17.12.2007 C 306/151):
PROTOCOL
ON THE EURO GROUP
THE HIGH CONTRACTING PARTIES,
DESIRING to promote conditions for stronger economic growth in the European Union and, to that end, to develop ever closer coordination of economic policies within the euro area,
CONSCIOUS of the need to lay down special provisions for enhanced dialogue between the Member States whose currency is the euro, pending the euro becoming the currency of all Member States of the Union,
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 Ministers of the Member States whose currency is the euro shall meet informally. Such meetings shall take place, when necessary, to discuss questions related to the specific responsibilities they share with regard to the single currency. The Commission shall take part in the meetings. The European Central Bank shall be invited to take part in such meetings, which shall be prepared by the representatives of the Ministers with responsibility for finance of the Member States whose currency is the euro and of the Commission.
Article 2
The Ministers of the Member States whose currency is the euro shall elect a president for two and a half years, by a majority of those Member States.
***
After living a life on their own, the employment policy guidelines have been integrated with the Broad Economic Policy Guidelines. For a introduction you could visit the Scadplus web pages of the Commission, Employment policy guidelines (2005 – 2008):
http://europa.eu/scadplus/leg/en/cha/c11323.htm
***
Whereas economic policy and employment policy coordination are mandatory, the coordination of member states’ social policies is an option.
For an overview of DG Employment, Social Affairs and Equal Opportunities, you could start from the DG’s homepage:
http://ec.europa.eu/employment_social/index_en.html
***
I hope that this presentation has supported, coordinated or supplemented your knowledge of EU competences. Anyway, these are the competences we are going to look at next time.
Ralf Grahn
Drafting novelties for better presentation do not necessarily change the way the European Union works. A mechanical comparison between the Lisbon Treaty and the Constitution is therefore of limited value, unless we elucidate the substantial changes or lack of them, and consider what they mean in relation to the present treaties, the ones which actually are amended.
To contribute to the knowledge of all sides about the EU and its workings, regardless of the recipients’ (and the comparer’s) preconceived views, these comparisons have to be made as objectively as possible.
In addition, I allow myself both value judgments and banter, trying to make clear when I am writing in objective and when in subjective mode. (Today’s epistle is not especially representative of the latter, being almost wholly factual in tone.)
***
In the Treaty of Lisbon (ToL) the intergovernmental conference inserted a new Article 2d TFEU (OJ 17.12.2007 C 306/47):
Article 2d TFEU (ToL), to be renumbered Article 5 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.
***
Since many visitors seem to be interested in the similarities and differences between the Lisbon Treaty and the Constitution, we can track the history backwards until we reach the existing treaties, the ones actually being amended.
The Treaty establishing a Constitution for Europe contained the following Article I-15 The coordination of economic and employment policies (OJ 16.12.2004 C 310/17):
Article I-15
The coordination of economic and employment policies
1. The Member States shall coordinate their economic policies within the Union. To this end, the Council of Ministers 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.
***
We can conclude that the Lisbon Treaty has taken over this Article of the Constitutional Treaty unchanged.
The following stop is the European Convention and its draft Treaty establishing a Constitution for Europe, where the corresponding provision is Article I-14 (OJ 18.7.2003 C 169/11):
Article 14
The coordination of economic and employment policies
1. The Union shall adopt measures to ensure coordination of the economic policies of the Member States, in particular by adopting broad guidelines for these policies. The Member States shall coordinate their economic policies within the Union.
2. Specific provisions shall apply to those Member States which have adopted the euro.
3. The Union shall adopt measures to ensure coordination of the employment policies of the Member States, in particular by adopting guidelines for these policies.
4. The Union may adopt initiatives to ensure coordination of Member States' social policies.
***
Basically, the new Article was introduced by the Convention, although the IGC 2004 made some editorial changes. Paragraph 1 of each version seems to indicate some substantial shift, the Constitution being slightly more wishy-washy than its predecessor.
***
Coordination of member states’ economic policies, including the broad economic policy guidelines, is firmly based in the current TEC, where Articles 98 and 99 offers a range of activities (for the latest consolidated version of the TEU and TEC, go to OJ 29.12.2006 C 321 E/82-83):
CHAPTER 1 TEC
ECONOMIC POLICY
Article 98
Member States shall conduct their economic policies with a view to contributing to the achievement of the objectives of the Community, as defined in Article 2, and in the context of the broad guidelines referred to in Article 99(2). The Member States and the Community shall act in accordance with the principle of an open market economy with free competition, favouring an efficient allocation of resources, and in compliance with the principles set out in Article 4.
Article 99
1. Member States shall regard their economic policies as a matter of common concern and shall coordinate them within the Council, in accordance with the provisions of Article 98.
2. The Council shall, acting by a qualified majority on a recommendation from the Commission, formulate a draft for the broad guidelines of the economic policies of the Member States and of the Community, and shall report its findings to the European Council.
The European Council shall, acting on the basis of the report from the Council, discuss a conclusion on the broad guidelines of the economic policies of the Member States and of the Community.
On the basis of this conclusion, the Council shall, acting by a qualified majority, adopt a recommendation setting out these broad guidelines. The Council shall inform the European Parliament of its recommendation.
3. In order to ensure closer coordination of economic policies and sustained convergence of the economic performances of the Member States, the Council shall, on the basis of reports submitted by the Commission, monitor economic developments in each of the Member States and in the Community as well as the consistency of economic policies with the broad guidelines referred to in paragraph 2, and regularly carry out an overall assessment.
For the purpose of this multilateral surveillance, Member States shall forward information to the Commission about important measures taken by them in the field of their economic policy and such other information as they deem necessary.
4. Where it is established, under the procedure referred to in paragraph 3, that the economic policies of a Member State are not consistent with the broad guidelines referred to in paragraph 2 or that they risk jeopardising the proper functioning of economic and monetary union, the Council may, acting by a qualified majority on a recommendation from the Commission, make the necessary recommendations to the Member State concerned. The Council may, acting by a qualified majority on a proposal from the Commission, decide to make its recommendations public.
The President of the Council and the Commission shall report to the European Parliament on the results of multilateral surveillance. The President of the Council may be invited to appear before the competent committee of the European Parliament if the Council has made its recommendations public.
5. The Council, acting in accordance with the procedure referred to in Article 252, may adopt detailed rules for the multilateral surveillance procedure referred to in paragraphs 3 and 4 of this Article.
***
The interested reader can find additional information in the following official documents:
Council Recommendation 2005/601/EC of 12 July 2005 on the broad economic policy guidelines of the Member States and the Community (2005 – 2008) (OJ 6.8.2005 L 205)
Council Recommendation 2007/209/EC of 27 March 2007 on the 2007 update of the broad guidelines for the economic policies of the Member States and the Community and on the implementation of Member States' employment policies (OJ 3.4.2007 L 92)
There is a convenient presentation of the Broad economic policy guidelines (2005 – 2008) available on the Commission’s Scadplus web pages:
http://europa.eu/scadplus/leg/en/lvb/l25078.htm
***
Specific provisions apply to those Member States whose currency is the euro. Monetary policy for the Eurozone is an exclusive EU competence according to the TFEU. How the members belonging to the Eurozone handle their economic policies has direct implications for the monetary policy.
We are going to encounter the detailed provisions later, but at this stage I will only draw your attention to the Protocol on the Euro Group annexed to the Lisbon Treaty, with informal meetings of the (Finance) Ministers and a President elected for two and a half years, an arrangement currently in use (OJ 17.12.2007 C 306/151):
PROTOCOL
ON THE EURO GROUP
THE HIGH CONTRACTING PARTIES,
DESIRING to promote conditions for stronger economic growth in the European Union and, to that end, to develop ever closer coordination of economic policies within the euro area,
CONSCIOUS of the need to lay down special provisions for enhanced dialogue between the Member States whose currency is the euro, pending the euro becoming the currency of all Member States of the Union,
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 Ministers of the Member States whose currency is the euro shall meet informally. Such meetings shall take place, when necessary, to discuss questions related to the specific responsibilities they share with regard to the single currency. The Commission shall take part in the meetings. The European Central Bank shall be invited to take part in such meetings, which shall be prepared by the representatives of the Ministers with responsibility for finance of the Member States whose currency is the euro and of the Commission.
Article 2
The Ministers of the Member States whose currency is the euro shall elect a president for two and a half years, by a majority of those Member States.
***
After living a life on their own, the employment policy guidelines have been integrated with the Broad Economic Policy Guidelines. For a introduction you could visit the Scadplus web pages of the Commission, Employment policy guidelines (2005 – 2008):
http://europa.eu/scadplus/leg/en/cha/c11323.htm
***
Whereas economic policy and employment policy coordination are mandatory, the coordination of member states’ social policies is an option.
For an overview of DG Employment, Social Affairs and Equal Opportunities, you could start from the DG’s homepage:
http://ec.europa.eu/employment_social/index_en.html
***
I hope that this presentation has supported, coordinated or supplemented your knowledge of EU competences. Anyway, these are the competences we are going to look at next time.
Ralf Grahn
Tuesday, 19 February 2008
EU: TFEU Shared competence
SCANDAL: COMMON MARKET SCRAPPED!
When the European leaders flew to Lisbon to sign the re-wrapped Constitution they had not read, they dumped the cherished Common Market on the scrap heap of History!
Confirmed by Constitutional experts!
Read more!
***
Many unbelievable things have been said about the Treaty of Lisbon (ToL), but this is one point where tabloids and bloggers with a traditionalist and nostalgic agenda seem to have missed an opportunity, so I decided to give them a helping hand.
The facts are, in a way, correct, as they should be according to the Tabloids’ Style Guide.
Let me fill in the background:
In the Lisbon Treaty the intergovernmental conference (IGC 2007) made a number of horizontal amendments to the Treaty establishing the European Community (TEC), which was renamed the Treaty on the Functioning of the European Union (TFEU). Point 2(g) imparts that:
“Throughout the Treaty … the words ‘common market’ shall be replaced by ‘internal market’.“
Do not take my word for it. You can check yourself in the Official Journal (OJ 17.12.2007 C 306/41).
***
I admit that this was a scheming and devious way to bring a whole group of treaty changes to your attention: the horizontal amendments.
In the new order of things, certain terms and concepts have been substituted throughout. These terminological or editorial changes affect an awful lot of the TFEU provisions without altering the substance.
***
Let us now turn our attention to today’s sermon: shared competence.
Yesterday we looked at the areas where the member states have delegated exclusive powers to the European Community, to be merged into the European Union. Exclusive competence is wonderfully clear, as long as we are able to ascertain the boundaries of these powers.
Starting to think about competence shared by the European Union and the member states, we realise that there is a new element of complexity. ‘Who does what?’ becomes one of the defining questions in the relationship between the EU and each member.
The division of powers has to be settled somehow, over a range of areas and often in minute detail, as in all systems with different levels of responsibility.
Some mix of detailed provisions and jurisprudence is usually needed to settle the difficult questions. Perhaps one of the main reasons for the voluminous treaties (and much secondary legislation) is the anxiety with which the member states have approached delegating powers to the European Community, thus reducing the scope for litigation.
(On the other hand, laborious and muddled compromises may lead to the opposite result.)
***
Today, our aim is more modest than to settle esoteric issues of law. In true Civil Law style we turn to written legislation to find a systematic approach to the basic questions of law.
The IGC 2007 offers us the following fundamental rules on the ‘division of labour’ between the European Union and its member states (OJ 17.12.2007 C 306/46-47):
Article 2c TFEU (ToL), to be renumbered Article 4 TFEU
1. The Union shall share competence with the Member States where the Treaties confer on it a competence which does not relate to the areas referred to in Articles 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.
***
If you read the Article attentively, you will find that the wording is careful. Words like ‘principal areas’ indicate a need to look deeper, and paragraphs 3 and 4 single out a few areas for special treatment.
But on the whole we have a robust User’s Manual for the most frequently asked questions:
When confronted with the question ‘shared competence’, we can at least start by following our operating instructions:
1) Is this an area of exclusive EU competence? If the answer is ‘no’ (Article 2b), we turn to our following question.
2) Is it an area where the EU can carry out actions to support, coordinate or supplement the actions of the member states (Article 2e)? If the answer is in the negative, too, we have at least eliminated a lot of potential traps.
3) We can turn our attention to the areas mentioned in Article 2c TFEU. If we find the area mentioned, we have covered a lot of ground.
Actually, the few TFEU Articles on competences in general give us a fair indication of what the whole treaty is about, and the areas of shared competence in particular are the ones where “Brussels” pours out the vast bulk of its legislation and where the overwhelming part of the Union’s budget is spent (for the most part in and by the member states).
Note that the IGC 2007 inserted the combat against climate change under the ‘environment’ in the detailed provisions of the TFEU. In the same way ‘energy’ was strengthened.
Paragraph 3 covers areas which could just as well have been located under supporting actions, since they operate mainly through Union programmes intended to complement activities in fields where the member states operate freely, and the nation states operate their own bilateral programmes in the areas of development aid and humanitarian assistance alongside EU action as recognised in paragraph 4.
***
But what does it mean, when the competence is shared or concurrent?
The hard and fast rule is found by returning to Article 2a(2) TFEU (ToL), renumbered Article 2(2) TFEU:
“2. When the Treaties confer on the Union a competence shared with the Member States in a specific area, the Union and the Member States may legislate and adopt legally binding acts in that area. The Member States shall exercise their competence to the extent that the Union has not exercised its competence. The Member States shall again exercise their competence to the extent that the Union has decided to cease exercising its competence.”
We see that the EU has supranational competence, with two basic exceptions:
1) The Union has not exercised its competence.
2) The Union has decided to cease exercising its competence.
Yes, true to their promise the governments of the member states have provided for the option to decrease some of the powers of the Union by giving them back to the member states.
The attentive reader may notice a distinction. The exclusive competences are, exaggerating slightly, ‘gone forever’, meaning that a treaty amendment would be needed to re-nationalise these areas. Ordinary legislation is enough to ‘return to sender’ chunks or morsels of shared competence.
***
The diligent student may want to look at the drafting history of the provision on shared competence.
Here are some materials to start digging, but let us work backwards for a change:
The corresponding provision of the Treaty establishing a Constitution for Europe is Article I-14 Areas of shared competence (OJ 16.12.2004 C 310/16). Comparing the similarities and differences between the Treaty of Lisbon and the Constitution we find that the Articles are almost identical, with only editorial changes in the Reform Treaty.
Article I-13 Areas of shared competence proposed by the European Convention in the draft Treaty establishing a Constitution for Europe differed from the Constitution in a few stylistic choices, none of them with material consequences (OJ 18.7.2003 C 169/11).
The Convention was the innovator concerning the systematic approach, and substantially it added the area of energy, which had relied on the flexibility clause in Article 308 TEC. Therefore you would have to look at the detailed provisions of the existing TEC or turn to a textbook to find a general description of the present situation, but the material differences from TEC to ToL are not significant, perhaps with the exception of energy and climate change.
***
There are a few additional points to make before we leave the concurrent or shared competences.
The question of subsidiarity does not rise in the framework of exclusive Union competence, but when both the EU and the member states are active in the same area, catchwords like ‘added value’ enter the scene.
The latest version of the Protocol on the application of the principles of subsidiarity and proportionality forms part of the treaties, and it sets out a whole system of scrutiny involving the national parliaments (OJ 17.12.2007 C 306/148-150):
PROTOCOL
ON THE APPLICATION OF THE PRINCIPLES OF SUBSIDIARITY
AND PROPORTIONALITY
THE HIGH CONTRACTING PARTIES,
WISHING to ensure that decisions are taken as closely as possible to the citizens of the Union,
RESOLVED to establish the conditions for the application of the principles of subsidiarity and proportionality, as laid down in Article 3b of the Treaty on European Union, and to establish a system for monitoring the application of those principles,
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
Each institution shall ensure constant respect for the principles of subsidiarity and proportionality, as laid down in Article 3b of the Treaty on European Union.
Article 2
Before proposing legislative acts, the Commission shall consult widely. Such consultations shall, where appropriate, take into account the regional and local dimension of the action envisaged. In cases of exceptional urgency, the Commission shall not conduct such consultations. It shall give reasons for its decision in its proposal.
Article 3
For the purposes of this Protocol, ‘draft legislative acts’ shall mean proposals from the Commission, initiatives from a group of Member States, initiatives from the European Parliament, requests from the Court of Justice, recommendations from the European Central Bank and requests from the European Investment Bank for the adoption of a legislative act.
Article 4
The Commission shall forward its draft legislative acts and its amended drafts to national arliaments at the same time as to the Union legislator.
The European Parliament shall forward its draft legislative acts and its amended drafts to national Parliaments.
The Council shall forward draft legislative acts originating from a group of Member States, the Court of Justice, the European Central Bank or the European Investment Bank and amended drafts to national Parliaments.
Upon adoption, legislative resolutions of the European Parliament and positions of the Council shall be forwarded by them to national Parliaments.
Article 5
Draft legislative acts shall be justified with regard to the principles of subsidiarity and proportionality. Any draft legislative act should contain a detailed statement making it possible to appraise compliance with the principles of subsidiarity and proportionality. This statement should contain some assessment of the proposal's financial impact and, in the case of a directive, of its implications for the rules to be put in place by Member States, including, where necessary, the regional legislation. The reasons for concluding that a Union objective can be better achieved at Union level shall be substantiated by qualitative and, wherever possible, quantitative indicators. Draft legislative acts shall take account of the need for any burden, whether financial or administrative, falling upon the Union, national governments, regional or local authorities, economic operators and citizens, to be minimised and commensurate with the objective to be achieved.
Article 6
Any national Parliament or any chamber of a national Parliament may, within eight weeks from the date of transmission of a draft legislative act, in the official languages of the Union, send to the Presidents of the European Parliament, the Council and the Commission a reasoned opinion stating why it considers that the draft in question does not comply with the principle of subsidiarity. It will be for each national Parliament or each chamber of a national Parliament to consult, where appropriate, regional parliaments with legislative powers.
If the draft legislative act originates from a group of Member States, the President of the Council shall forward the opinion to the governments of those Member States.
If the draft legislative act originates from the Court of Justice, the European Central Bank or the European Investment Bank, the President of the Council shall forward the opinion to the institution or body concerned.
Article 7
1. The European Parliament, the Council and the Commission, and, where appropriate, the group of Member States, the Court of Justice, the European Central Bank or the European Investment Bank, if the draft legislative act originates from them, shall take account of the reasoned opinions issued by national Parliaments or by a chamber of a national Parliament.
Each national Parliament shall have two votes, shared out on the basis of the national Parliamentary system. In the case of a bicameral Parliamentary system, each of the two chambers shall have one vote.
2. Where reasoned opinions on a draft legislative act's non-compliance with the principle of subsidiarity represent at least one third of all the votes allocated to the national Parliaments in accordance with the second subparagraph of paragraph 1, the draft must be reviewed. This threshold shall be a quarter in the case of a draft legislative act submitted on the basis of Article 61 I of the Treaty on the Functioning of the European Union on the area of freedom, security and justice.
After such review, the Commission or, where appropriate, the group of Member States, the European Parliament, the Court of Justice, the European Central Bank or the European Investment Bank, if the draft legislative act originates from them, may decide to maintain, amend or withdraw the draft. Reasons must be given for this decision.
3. Furthermore, under the ordinary legislative procedure, where reasoned opinions on the non-compliance of a proposal for a legislative act with the principle of subsidiarity represent at least a simple majority of the votes allocated to the national Parliaments in accordance with the second subparagraph of paragraph 1, the proposal must be reviewed. After such review, the Commission may decide to maintain, amend or withdraw the proposal.
If it chooses to maintain the proposal, the Commission will have, in a reasoned opinion, to justify why it considers that the proposal complies with the principle of subsidiarity. This reasoned opinion, as well as the reasoned opinions of the national Parliaments, will have to be submitted to the Union legislator, for consideration in the procedure:
(a) before concluding the first reading, the legislator (the European Parliament and the Council) shall consider whether the legislative proposal is compatible with the principle of subsidiarity, taking particular account of the reasons expressed and shared by the majority of national Parliaments as well as the reasoned opinion of the Commission;
(b) if, by a majority of 55 % of the members of the Council or a majority of the votes cast in the European Parliament, the legislator is of the opinion that the proposal is not compatible with the principle of subsidiarity, the legislative proposal shall not be given further consideration.
Article 8
The Court of Justice of the European Union shall have jurisdiction in actions on grounds of infringement of the principle of subsidiarity by a legislative act, brought in accordance with the rules laid down in Article 230 of the Treaty on the Functioning of the European Union by Member States, or notified by them in accordance with their legal order on behalf of their national Parliament or a chamber thereof.
In accordance with the rules laid down in the said Article, the Committee of the Regions may also bring such actions against legislative acts for the adoption of which the Treaty on the Functioning of the European Union provides that it be consulted.
Article 9
The Commission shall submit each year to the European Council, the European Parliament, the Council and national Parliaments a report on the application of Article 3b of the Treaty on European Union. This annual report shall also be forwarded to the Economic and Social Committee and the Committee of the Regions.
***
Then we have the Protocol on the exercise of shared competence (OJ 17.12.2007 C 306/156), even if I admit to difficulties placing it in the correct category: self-evident and redundant or profound. Perhaps it is just an indication of political atmospherics:
PROTOCOL
ON THE EXERCISE OF SHARED COMPETENCE
THE HIGH CONTRACTING PARTIES
HAVE AGREED UPON the following provisions, which shall be annexed to the Treaty on European Union and to the Treaty on the Functioning of the European Union:
Sole Article
With reference to Article 2 A of the Treaty on the Functioning of the European Union on shared competence, when the Union has taken action in a certain area, the scope of this exercise of competence only covers those elements governed by the Union act in question and therefore does not cover the whole area.
***
Finally, there is no way I could leave your thirst for Declaration 18 in relation to the delimitation of competences unslaked (OJ 17.12.2007 C 306/254-255):
18. Declaration in relation to the delimitation of competences
The Conference underlines that, in accordance with the system of division of competences between the Union and the Member States as provided for in the Treaty on European Union and the Treaty on the Functioning of the European Union, competences not conferred upon the Union in the Treaties remain with the Member States.
When the Treaties confer on the Union a competence shared with the Member States in a specific area, the Member States shall exercise their competence to the extent that the Union has not exercised, or has decided to cease exercising, its competence. The latter situation arises when the relevant EU institutions decide to repeal a legislative act, in particular better to ensure constant respect for the principles of subsidiarity and proportionality. The Council may, at the initiative of one or several of its members (representatives of Member States) and in accordance with Article 208 of the Treaty on the Functioning of the European Union, request the Commission to submit proposals for repealing a legislative act. The Conference welcomes the Commission's declaration that it will devote particular attention to these requests.
Equally, the representatives of the governments of the Member States, meeting in an Intergovernmental Conference, in accordance with the ordinary revision procedure provided for in Article 48(2) to (5) of the Treaty on European Union, may decide to amend the Treaties upon which the Union is founded, including either to increase or to reduce the competences conferred on the Union in the said Treaties.
***
If you, dear reader, managed to get this far, you have my respect and sympathy.
Ralf Grahn
When the European leaders flew to Lisbon to sign the re-wrapped Constitution they had not read, they dumped the cherished Common Market on the scrap heap of History!
Confirmed by Constitutional experts!
Read more!
***
Many unbelievable things have been said about the Treaty of Lisbon (ToL), but this is one point where tabloids and bloggers with a traditionalist and nostalgic agenda seem to have missed an opportunity, so I decided to give them a helping hand.
The facts are, in a way, correct, as they should be according to the Tabloids’ Style Guide.
Let me fill in the background:
In the Lisbon Treaty the intergovernmental conference (IGC 2007) made a number of horizontal amendments to the Treaty establishing the European Community (TEC), which was renamed the Treaty on the Functioning of the European Union (TFEU). Point 2(g) imparts that:
“Throughout the Treaty … the words ‘common market’ shall be replaced by ‘internal market’.“
Do not take my word for it. You can check yourself in the Official Journal (OJ 17.12.2007 C 306/41).
***
I admit that this was a scheming and devious way to bring a whole group of treaty changes to your attention: the horizontal amendments.
In the new order of things, certain terms and concepts have been substituted throughout. These terminological or editorial changes affect an awful lot of the TFEU provisions without altering the substance.
***
Let us now turn our attention to today’s sermon: shared competence.
Yesterday we looked at the areas where the member states have delegated exclusive powers to the European Community, to be merged into the European Union. Exclusive competence is wonderfully clear, as long as we are able to ascertain the boundaries of these powers.
Starting to think about competence shared by the European Union and the member states, we realise that there is a new element of complexity. ‘Who does what?’ becomes one of the defining questions in the relationship between the EU and each member.
The division of powers has to be settled somehow, over a range of areas and often in minute detail, as in all systems with different levels of responsibility.
Some mix of detailed provisions and jurisprudence is usually needed to settle the difficult questions. Perhaps one of the main reasons for the voluminous treaties (and much secondary legislation) is the anxiety with which the member states have approached delegating powers to the European Community, thus reducing the scope for litigation.
(On the other hand, laborious and muddled compromises may lead to the opposite result.)
***
Today, our aim is more modest than to settle esoteric issues of law. In true Civil Law style we turn to written legislation to find a systematic approach to the basic questions of law.
The IGC 2007 offers us the following fundamental rules on the ‘division of labour’ between the European Union and its member states (OJ 17.12.2007 C 306/46-47):
Article 2c TFEU (ToL), to be renumbered Article 4 TFEU
1. The Union shall share competence with the Member States where the Treaties confer on it a competence which does not relate to the areas referred to in Articles 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.
***
If you read the Article attentively, you will find that the wording is careful. Words like ‘principal areas’ indicate a need to look deeper, and paragraphs 3 and 4 single out a few areas for special treatment.
But on the whole we have a robust User’s Manual for the most frequently asked questions:
When confronted with the question ‘shared competence’, we can at least start by following our operating instructions:
1) Is this an area of exclusive EU competence? If the answer is ‘no’ (Article 2b), we turn to our following question.
2) Is it an area where the EU can carry out actions to support, coordinate or supplement the actions of the member states (Article 2e)? If the answer is in the negative, too, we have at least eliminated a lot of potential traps.
3) We can turn our attention to the areas mentioned in Article 2c TFEU. If we find the area mentioned, we have covered a lot of ground.
Actually, the few TFEU Articles on competences in general give us a fair indication of what the whole treaty is about, and the areas of shared competence in particular are the ones where “Brussels” pours out the vast bulk of its legislation and where the overwhelming part of the Union’s budget is spent (for the most part in and by the member states).
Note that the IGC 2007 inserted the combat against climate change under the ‘environment’ in the detailed provisions of the TFEU. In the same way ‘energy’ was strengthened.
Paragraph 3 covers areas which could just as well have been located under supporting actions, since they operate mainly through Union programmes intended to complement activities in fields where the member states operate freely, and the nation states operate their own bilateral programmes in the areas of development aid and humanitarian assistance alongside EU action as recognised in paragraph 4.
***
But what does it mean, when the competence is shared or concurrent?
The hard and fast rule is found by returning to Article 2a(2) TFEU (ToL), renumbered Article 2(2) TFEU:
“2. When the Treaties confer on the Union a competence shared with the Member States in a specific area, the Union and the Member States may legislate and adopt legally binding acts in that area. The Member States shall exercise their competence to the extent that the Union has not exercised its competence. The Member States shall again exercise their competence to the extent that the Union has decided to cease exercising its competence.”
We see that the EU has supranational competence, with two basic exceptions:
1) The Union has not exercised its competence.
2) The Union has decided to cease exercising its competence.
Yes, true to their promise the governments of the member states have provided for the option to decrease some of the powers of the Union by giving them back to the member states.
The attentive reader may notice a distinction. The exclusive competences are, exaggerating slightly, ‘gone forever’, meaning that a treaty amendment would be needed to re-nationalise these areas. Ordinary legislation is enough to ‘return to sender’ chunks or morsels of shared competence.
***
The diligent student may want to look at the drafting history of the provision on shared competence.
Here are some materials to start digging, but let us work backwards for a change:
The corresponding provision of the Treaty establishing a Constitution for Europe is Article I-14 Areas of shared competence (OJ 16.12.2004 C 310/16). Comparing the similarities and differences between the Treaty of Lisbon and the Constitution we find that the Articles are almost identical, with only editorial changes in the Reform Treaty.
Article I-13 Areas of shared competence proposed by the European Convention in the draft Treaty establishing a Constitution for Europe differed from the Constitution in a few stylistic choices, none of them with material consequences (OJ 18.7.2003 C 169/11).
The Convention was the innovator concerning the systematic approach, and substantially it added the area of energy, which had relied on the flexibility clause in Article 308 TEC. Therefore you would have to look at the detailed provisions of the existing TEC or turn to a textbook to find a general description of the present situation, but the material differences from TEC to ToL are not significant, perhaps with the exception of energy and climate change.
***
There are a few additional points to make before we leave the concurrent or shared competences.
The question of subsidiarity does not rise in the framework of exclusive Union competence, but when both the EU and the member states are active in the same area, catchwords like ‘added value’ enter the scene.
The latest version of the Protocol on the application of the principles of subsidiarity and proportionality forms part of the treaties, and it sets out a whole system of scrutiny involving the national parliaments (OJ 17.12.2007 C 306/148-150):
PROTOCOL
ON THE APPLICATION OF THE PRINCIPLES OF SUBSIDIARITY
AND PROPORTIONALITY
THE HIGH CONTRACTING PARTIES,
WISHING to ensure that decisions are taken as closely as possible to the citizens of the Union,
RESOLVED to establish the conditions for the application of the principles of subsidiarity and proportionality, as laid down in Article 3b of the Treaty on European Union, and to establish a system for monitoring the application of those principles,
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
Each institution shall ensure constant respect for the principles of subsidiarity and proportionality, as laid down in Article 3b of the Treaty on European Union.
Article 2
Before proposing legislative acts, the Commission shall consult widely. Such consultations shall, where appropriate, take into account the regional and local dimension of the action envisaged. In cases of exceptional urgency, the Commission shall not conduct such consultations. It shall give reasons for its decision in its proposal.
Article 3
For the purposes of this Protocol, ‘draft legislative acts’ shall mean proposals from the Commission, initiatives from a group of Member States, initiatives from the European Parliament, requests from the Court of Justice, recommendations from the European Central Bank and requests from the European Investment Bank for the adoption of a legislative act.
Article 4
The Commission shall forward its draft legislative acts and its amended drafts to national arliaments at the same time as to the Union legislator.
The European Parliament shall forward its draft legislative acts and its amended drafts to national Parliaments.
The Council shall forward draft legislative acts originating from a group of Member States, the Court of Justice, the European Central Bank or the European Investment Bank and amended drafts to national Parliaments.
Upon adoption, legislative resolutions of the European Parliament and positions of the Council shall be forwarded by them to national Parliaments.
Article 5
Draft legislative acts shall be justified with regard to the principles of subsidiarity and proportionality. Any draft legislative act should contain a detailed statement making it possible to appraise compliance with the principles of subsidiarity and proportionality. This statement should contain some assessment of the proposal's financial impact and, in the case of a directive, of its implications for the rules to be put in place by Member States, including, where necessary, the regional legislation. The reasons for concluding that a Union objective can be better achieved at Union level shall be substantiated by qualitative and, wherever possible, quantitative indicators. Draft legislative acts shall take account of the need for any burden, whether financial or administrative, falling upon the Union, national governments, regional or local authorities, economic operators and citizens, to be minimised and commensurate with the objective to be achieved.
Article 6
Any national Parliament or any chamber of a national Parliament may, within eight weeks from the date of transmission of a draft legislative act, in the official languages of the Union, send to the Presidents of the European Parliament, the Council and the Commission a reasoned opinion stating why it considers that the draft in question does not comply with the principle of subsidiarity. It will be for each national Parliament or each chamber of a national Parliament to consult, where appropriate, regional parliaments with legislative powers.
If the draft legislative act originates from a group of Member States, the President of the Council shall forward the opinion to the governments of those Member States.
If the draft legislative act originates from the Court of Justice, the European Central Bank or the European Investment Bank, the President of the Council shall forward the opinion to the institution or body concerned.
Article 7
1. The European Parliament, the Council and the Commission, and, where appropriate, the group of Member States, the Court of Justice, the European Central Bank or the European Investment Bank, if the draft legislative act originates from them, shall take account of the reasoned opinions issued by national Parliaments or by a chamber of a national Parliament.
Each national Parliament shall have two votes, shared out on the basis of the national Parliamentary system. In the case of a bicameral Parliamentary system, each of the two chambers shall have one vote.
2. Where reasoned opinions on a draft legislative act's non-compliance with the principle of subsidiarity represent at least one third of all the votes allocated to the national Parliaments in accordance with the second subparagraph of paragraph 1, the draft must be reviewed. This threshold shall be a quarter in the case of a draft legislative act submitted on the basis of Article 61 I of the Treaty on the Functioning of the European Union on the area of freedom, security and justice.
After such review, the Commission or, where appropriate, the group of Member States, the European Parliament, the Court of Justice, the European Central Bank or the European Investment Bank, if the draft legislative act originates from them, may decide to maintain, amend or withdraw the draft. Reasons must be given for this decision.
3. Furthermore, under the ordinary legislative procedure, where reasoned opinions on the non-compliance of a proposal for a legislative act with the principle of subsidiarity represent at least a simple majority of the votes allocated to the national Parliaments in accordance with the second subparagraph of paragraph 1, the proposal must be reviewed. After such review, the Commission may decide to maintain, amend or withdraw the proposal.
If it chooses to maintain the proposal, the Commission will have, in a reasoned opinion, to justify why it considers that the proposal complies with the principle of subsidiarity. This reasoned opinion, as well as the reasoned opinions of the national Parliaments, will have to be submitted to the Union legislator, for consideration in the procedure:
(a) before concluding the first reading, the legislator (the European Parliament and the Council) shall consider whether the legislative proposal is compatible with the principle of subsidiarity, taking particular account of the reasons expressed and shared by the majority of national Parliaments as well as the reasoned opinion of the Commission;
(b) if, by a majority of 55 % of the members of the Council or a majority of the votes cast in the European Parliament, the legislator is of the opinion that the proposal is not compatible with the principle of subsidiarity, the legislative proposal shall not be given further consideration.
Article 8
The Court of Justice of the European Union shall have jurisdiction in actions on grounds of infringement of the principle of subsidiarity by a legislative act, brought in accordance with the rules laid down in Article 230 of the Treaty on the Functioning of the European Union by Member States, or notified by them in accordance with their legal order on behalf of their national Parliament or a chamber thereof.
In accordance with the rules laid down in the said Article, the Committee of the Regions may also bring such actions against legislative acts for the adoption of which the Treaty on the Functioning of the European Union provides that it be consulted.
Article 9
The Commission shall submit each year to the European Council, the European Parliament, the Council and national Parliaments a report on the application of Article 3b of the Treaty on European Union. This annual report shall also be forwarded to the Economic and Social Committee and the Committee of the Regions.
***
Then we have the Protocol on the exercise of shared competence (OJ 17.12.2007 C 306/156), even if I admit to difficulties placing it in the correct category: self-evident and redundant or profound. Perhaps it is just an indication of political atmospherics:
PROTOCOL
ON THE EXERCISE OF SHARED COMPETENCE
THE HIGH CONTRACTING PARTIES
HAVE AGREED UPON the following provisions, which shall be annexed to the Treaty on European Union and to the Treaty on the Functioning of the European Union:
Sole Article
With reference to Article 2 A of the Treaty on the Functioning of the European Union on shared competence, when the Union has taken action in a certain area, the scope of this exercise of competence only covers those elements governed by the Union act in question and therefore does not cover the whole area.
***
Finally, there is no way I could leave your thirst for Declaration 18 in relation to the delimitation of competences unslaked (OJ 17.12.2007 C 306/254-255):
18. Declaration in relation to the delimitation of competences
The Conference underlines that, in accordance with the system of division of competences between the Union and the Member States as provided for in the Treaty on European Union and the Treaty on the Functioning of the European Union, competences not conferred upon the Union in the Treaties remain with the Member States.
When the Treaties confer on the Union a competence shared with the Member States in a specific area, the Member States shall exercise their competence to the extent that the Union has not exercised, or has decided to cease exercising, its competence. The latter situation arises when the relevant EU institutions decide to repeal a legislative act, in particular better to ensure constant respect for the principles of subsidiarity and proportionality. The Council may, at the initiative of one or several of its members (representatives of Member States) and in accordance with Article 208 of the Treaty on the Functioning of the European Union, request the Commission to submit proposals for repealing a legislative act. The Conference welcomes the Commission's declaration that it will devote particular attention to these requests.
Equally, the representatives of the governments of the Member States, meeting in an Intergovernmental Conference, in accordance with the ordinary revision procedure provided for in Article 48(2) to (5) of the Treaty on European Union, may decide to amend the Treaties upon which the Union is founded, including either to increase or to reduce the competences conferred on the Union in the said Treaties.
***
If you, dear reader, managed to get this far, you have my respect and sympathy.
Ralf Grahn
Monday, 18 February 2008
EU: TFEU Exclusive competence
In which areas does the European Community (EC) wield the greatest powers? In a nutshell we can say that we return to the establishment of the European Economic Community (EEC) more than fifty years ago. The principal aims of the Treaty of Rome were twofold, external and internal:
External: The six founding members set out to become more than a free trade area, namely a customs union with unified tariffs concerning the rest of the world (third countries). A common commercial policy for the trading bloc can be seen as a logical consequence of the customs union, giving the members considerable bargaining powers in the GATT and later WTO world trade rounds, as well as in other trade related negotiations with the outside world, groups of states or individual countries.
Internal: The other objective was to progress towards unhindered “interstate commerce” through what was called the ‘common market’, in order to raise competitiveness, enhance prosperity, create jobs and raise living standards. Later the more ambitious term ‘internal market’ was introduced, and both concepts have been used in parallel until the Treaty of Lisbon (ToL), which opts for the sole use of ‘internal market’. Exclusive competence is given concerning one important aspect of the internal market: the competition rules.
Economic and monetary union (EMU) with the currency unit ‘ecu’ and the adoption of the ‘euro’ currency with real banknotes and coins requires a unified monetary policy, a later development of European economic integration.
The interdependence between internal and external powers explains the competence to make international treaties. ‘Mirror image’ might be a helpful figure of speech.
***
The IGC 2007 agreed to insert a new Article 2b into the Treaty establishing the European Community (TEC), renamed the Treaty on the Functioning of the European Union (TFEU) by the Treaty of Lisbon (OJ 17.12.2007 C 306/44-45):
Article 2b TFEU (ToL), renumbered Article 3 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.
***
The European Convention decided to clarify the scattered competences in the TEC and to codify the principles established by the jurisprudence of the ECJ. In the group of exclusive competence, the competition rules of the internal market were mentioned first, followed by the other areas.
The scope was widened to encompass the common commercial policy as a whole at this level of the draft Constitution, but the “French cultural exception” rebounded concerning “trade in cultural and audiovisual services, where these risk prejudicing the Union’s cultural and linguistic diversity” in Article III-217(4).
The common fisheries policy is a special branch of economic activity, and following ECJ precedent one aspect, the conservation of marine biological resources, was visibly placed under supranational tutelage.
The Convention introduced the following Article I-12 in the draft Treaty establishing a Constitution for Europe (OJ 18.7.2007 C 169/10):
Article I-12
Exclusive competence
1. The Union shall have exclusive competence to establish the competition rules necessary for the functioning of the internal market, and in the following areas:
— monetary policy, for the Member States which have adopted the euro,
— common commercial policy,
— customs union,
— the conservation of marine biological resources under the common fisheries policy.
2. The Union shall have exclusive competence for the conclusion of an international agreement when its conclusion is provided for in a legislative act of the Union, is necessary to enable it to exercise its internal competence, or affects an internal Union act.
***
Redrafting but without altering the substance, the IGC 2004 agreed on the following Article I-13 of the Treaty establishing a Constitution for Europe (OJ 16.12.2004 C 310/15-16):
Article I-13
Areas of exclusive competence
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.
***
To summarise: The systematic, codifying approach to the competences originates with the Convention. We can see that the Constitution only reordered the areas mentioned in the draft without altering the substance, and that the Lisbon Treaty takes over the text of the Constitution.
***
Having looked at the areas of exclusive competence, we take a step back to remind ourselves of what that exclusiveness means. The preceding Article gives the answer:
Article 2a(1) TFEU (ToL), after renumbering Article 2(1) TFEU
1. When the Treaties confer on the Union exclusive competence in a specific area, only the Union may legislate and adopt legally binding acts, the Member States being able to do so themselves only if so empowered by the Union or for the implementation of Union acts.
***
Finally, we glance in the other direction. When confronted with a concrete problem to delimitate competences, the provisions presented above give us a mental framework, but we have to look for the boundaries and arrangements in the treaty provisions and jurisprudence concerning each area.
Ralf Grahn
External: The six founding members set out to become more than a free trade area, namely a customs union with unified tariffs concerning the rest of the world (third countries). A common commercial policy for the trading bloc can be seen as a logical consequence of the customs union, giving the members considerable bargaining powers in the GATT and later WTO world trade rounds, as well as in other trade related negotiations with the outside world, groups of states or individual countries.
Internal: The other objective was to progress towards unhindered “interstate commerce” through what was called the ‘common market’, in order to raise competitiveness, enhance prosperity, create jobs and raise living standards. Later the more ambitious term ‘internal market’ was introduced, and both concepts have been used in parallel until the Treaty of Lisbon (ToL), which opts for the sole use of ‘internal market’. Exclusive competence is given concerning one important aspect of the internal market: the competition rules.
Economic and monetary union (EMU) with the currency unit ‘ecu’ and the adoption of the ‘euro’ currency with real banknotes and coins requires a unified monetary policy, a later development of European economic integration.
The interdependence between internal and external powers explains the competence to make international treaties. ‘Mirror image’ might be a helpful figure of speech.
***
The IGC 2007 agreed to insert a new Article 2b into the Treaty establishing the European Community (TEC), renamed the Treaty on the Functioning of the European Union (TFEU) by the Treaty of Lisbon (OJ 17.12.2007 C 306/44-45):
Article 2b TFEU (ToL), renumbered Article 3 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.
***
The European Convention decided to clarify the scattered competences in the TEC and to codify the principles established by the jurisprudence of the ECJ. In the group of exclusive competence, the competition rules of the internal market were mentioned first, followed by the other areas.
The scope was widened to encompass the common commercial policy as a whole at this level of the draft Constitution, but the “French cultural exception” rebounded concerning “trade in cultural and audiovisual services, where these risk prejudicing the Union’s cultural and linguistic diversity” in Article III-217(4).
The common fisheries policy is a special branch of economic activity, and following ECJ precedent one aspect, the conservation of marine biological resources, was visibly placed under supranational tutelage.
The Convention introduced the following Article I-12 in the draft Treaty establishing a Constitution for Europe (OJ 18.7.2007 C 169/10):
Article I-12
Exclusive competence
1. The Union shall have exclusive competence to establish the competition rules necessary for the functioning of the internal market, and in the following areas:
— monetary policy, for the Member States which have adopted the euro,
— common commercial policy,
— customs union,
— the conservation of marine biological resources under the common fisheries policy.
2. The Union shall have exclusive competence for the conclusion of an international agreement when its conclusion is provided for in a legislative act of the Union, is necessary to enable it to exercise its internal competence, or affects an internal Union act.
***
Redrafting but without altering the substance, the IGC 2004 agreed on the following Article I-13 of the Treaty establishing a Constitution for Europe (OJ 16.12.2004 C 310/15-16):
Article I-13
Areas of exclusive competence
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.
***
To summarise: The systematic, codifying approach to the competences originates with the Convention. We can see that the Constitution only reordered the areas mentioned in the draft without altering the substance, and that the Lisbon Treaty takes over the text of the Constitution.
***
Having looked at the areas of exclusive competence, we take a step back to remind ourselves of what that exclusiveness means. The preceding Article gives the answer:
Article 2a(1) TFEU (ToL), after renumbering Article 2(1) TFEU
1. When the Treaties confer on the Union exclusive competence in a specific area, only the Union may legislate and adopt legally binding acts, the Member States being able to do so themselves only if so empowered by the Union or for the implementation of Union acts.
***
Finally, we glance in the other direction. When confronted with a concrete problem to delimitate competences, the provisions presented above give us a mental framework, but we have to look for the boundaries and arrangements in the treaty provisions and jurisprudence concerning each area.
Ralf Grahn
Sunday, 17 February 2008
EU: TFEU Categories of Competence
For neat packaging and presentation you could look at the EU Law Blog posting “Reform Treaty: Taxonomy of Competence”,
http://eulaw.typepad.com/eulawblog/2008/01/reform-treaty-t.html –
taxonomy meaning a system of classification. Having offered you a succinct option, I feel less guilty about the rambling Sunday constitutional (with small ‘c’) I am going embark on concerning the different categories of EU competence, as presented in the Treaty of Lisbon (ToL).
Étienne de Poncins in “Vers une Constitution européenne" pointed out that Title III of Part I of the draft Treaty establishing a Constitution for Europe, and especially Article I-11, was based on the Laeken declaration aim to make the distribution of competences more transparent, and to answer the question: Who is responsible for what in Europe? This was to be achieved by dividing competences into three main categories: exclusive competence, shared competence and competence to carry out actions to support, coordinate or supplement the actions of the Member States (pages 102-103).
***
Since the main categories of powers mentioned as well as the specialised coordination procedures are going to be treated separately (or have been, concerning the CFSP and CSDP), this posting offers an assortment of general observations, primarily based on official resources.
***
Deprived of symbols and battered by two intergovernmental conferences, the achievement of the European Convention, the draft Treaty establishing a Constitution for Europe, remains a milestone in the development of the European Treaties.
The second Convention was broadly based. It drew its members from the national parliaments, the European Parliament, representatives of the heads of state or government and the Commission under the guidance of a chairman and two vice-presidents chosen by the European Council.
Most of the treaty novelties and improvements discussed lately can be traced back to the Convention. Its main contributions concern the institutional decision making of the European Union, the framing of an incipient common foreign and security policy (CFSP), including a common security and defence policy (CSDP), and a more comprehensive area of freedom, security and justice.
The draft Constitution clarified and improved on the patchwork reforms of earlier treaties. One such instance is the clear exposition of different categories of EU competence.
***
The UK House of Commons Library Research Paper 07/86, 6 December 2007, “The Treaty of Lisbon: amendments to the Treaty establishing the European Community” (page 11 and 12), set out the background of the present state of different categories of competences:
“A. Union Competence
1. Defining competences
‘Competence’ is the term used to define whether the Union or the Member States has the responsibility under the EC Treaties to make decisions on a particular policy. Competence at regional or local level is not specified in the Lisbon Treaty. In defining whether the EC or the Member States have competence in any particular area or for a specific task, the terms “spheres of competence”, “shared competence”, “Community competence” and “exclusive competence” are terms used in the present Treaties, but these do not list areas of exclusive or shared competence. The following EU explanation of competences, or powers, reflects the current situation:
There are three types of powers, which depend on how they are conferred:
Explicit powers: these are clearly defined in the relevant articles of the Treaties.
Implicit powers: according to the implicit powers theory, competence in external matters derives from explicit internal competence. Where the Treaties assign explicit powers to the Community in a particular area (e.g. transport), it must also have similar powers to conclude agreements with non-Community countries in the same field (the principle of parallelism between internal and external powers).
Subsidiary powers: where the Community has no explicit or implicit powers to achieve a Treaty objective concerning the common market, Article 308 of the Treaty establishing the European Community allows the Council, acting unanimously, to take the measures it considers necessary.”
***
Research Paper 07/86 went on to describe the discussions during the last reform round:
“In the 2003-04 constitutional discussions, which initially included the EU institutions, Member State governments and parliaments, NGOs and a range of representatives from civil society, some participants wanted comprehensive lists setting out divisions of competence, while others preferred a more flexible approach without lists. The Lisbon Treaty, like the Constitution in 2004, contains a compromise: there are lists, but they are short and do not cover every aspect of Union activity, thereby leaving scope for interpretation. They define ‘exclusive’ and ‘shared’ competences, and areas in which the Union can provide supporting or complementary action.”
***
Having presented a general view, the Research Paper continued with a presentation of the cautious UK government position:
“In its 2004 White Paper on the draft Constitution the British Government had generally welcomed the division of competences, but had been cautious about further conferral of powers on the Union. The present White Paper of July 2007 also supported the reforms in this respect, and particularly welcomed the Declaration stating that competences can be reduced, as well as increased:
The Reform Treaty will set out a more transparent and accountable structure for the EU. It includes a definition of the Union’s competences, which sets out where the EU can and cannot act. It also makes clear that Treaties can be revised to increase or reduce the competences conferred upon the EU. Therefore, the Member States would have the ability to transfer competences from the EU if they agree to do so.”
***
Perhaps we should proceed with an overview of the mandate of the intergovernmental conference concerning the Treaty establishing the European Community (TEC), to be renamed the Treaty on the Functioning of the European Union (TFEU).
The IGC 2007 Mandate (Council document 11218/07, point 18) first established its predecessor, the IGC 2004 as the basis for the amendments to be made:
“18. The innovations as agreed in the 2004 IGC will be inserted into the Treaty by way of specific modifications in the usual manner. They concern the categories and areas of competences, the scope of qualified majority voting and of codecision, the distinction between legislative and non legislative acts, provisions inter alia on the Area of freedom, security and justice, the solidarity clause, the improvements to the governance of the euro, horizontal provisions such as the social clause, specific provisions such as public services, space, energy, civil protection, humanitarian aid, public health, sport, tourism, outermost regions, administrative cooperation, financial provisions (own resources, multiannual financial framework, new budgetary procedure).”
***
The IGC 2007 then went on to enumerate the exceptions to the rule, first generally and then concerning the vertical division of powers:
“19. The following modifications will be introduced compared to the results of the 2004 IGC (see Annex 2):
a) A new Article 1 will state the purpose of the Treaty on the functioning of the Union and its relation with the EU Treaty. It will state that the two Treaties have the same legal value.
b) In the Article on categories of competences, placed at the beginning of the TEC, it will be clearly specified that the Member States will exercise again their competence to the extent that the Union has decided to cease exercising its competence.”
Footnote 10 gave further guidance:
“10 (a) The IGC will also agree a Declaration in relation to the delimitation of competences: "The Conference underlines that, in accordance with the system of division of competences between the Union and the Member States as provided for in the Treaty on European Union, competences not conferred upon the Union in the Treaties remain with Member States.
When the Treaties confer on the Union a competence shared with the Member States in a specific area, the Member States shall exercise their competence to the extent that the Union has not exercised, or has decided to cease exercising, its competence. The latter situation arises when the relevant EU institutions decide to repeal a legislative act, in particular to better ensure the constant respect for the principles of subsidiarity and proportionality. The Council may request, at the initiative of one or several of its Members (representatives of Member States) and in accordance with Article 208, the Commission to submit proposals for repealing a legislative act. Equally, the representatives of the governments of the Member States, meeting in an Intergovernmental Conference, in accordance with the ordinary revision procedure provided for in Article [IV-443] of the Treaty on European Union, may decide to amend the Treaties on which the Union is founded, including either to increase or to reduce the competences conferred on the Union in the said Treaties."
(b) The following Protocol will be annexed to the Treaties:
"With reference to Article[ I-12(2)] on shared competences, when the Union has taken action in a certain area, the scope of this exercise of competence only covers those elements governed by the Union act in question and therefore does not cover the whole area.”
***
The (IGC 2007) duly inserted a new Title I Categories and areas of Union competence into the Treaty on the Functioning of the European Union (TFEU) and at its beginning an Article 2a, which lays out the different categories (OJ 17.12.2007 C 306/45).
12) The following new Title and new Articles 2 A to 2 E shall be inserted:
‘TITLE I
CATEGORIES AND AREAS OF UNION COMPETENCE
Article 2a TFEU (ToL), after renumbering Article 2 TFEU
1. When the Treaties confer on the Union exclusive competence in a specific area, only the Union may legislate and adopt legally binding acts, the Member States being able to do so themselves only if so empowered by the Union or for the implementation of Union acts.
2. When the Treaties confer on the Union a competence shared with the Member States in a specific area, the Union and the Member States may legislate and adopt legally binding acts in that area. The Member States shall exercise their competence to the extent that the Union has not exercised its competence. The Member States shall again exercise their competence to the extent that the Union has decided to cease exercising its competence.
3. The Member States shall coordinate their economic and employment policies within arrangements as determined by this Treaty, which the Union shall have competence to provide.
4. The Union shall have competence, in accordance with the provisions of the Treaty on European Union, to define and implement a common foreign and security policy, including the progressive framing of a common defence policy.
5. In certain areas and under the conditions laid down in the Treaties, the Union shall have competence to carry out actions to support, coordinate or supplement the actions of the Member States, without thereby superseding their competence in these areas.
Legally binding acts of the Union adopted on the basis of the provisions of the Treaties relating to these areas shall not entail harmonisation of Member States' laws or regulations.
6. The scope of and arrangements for exercising the Union's competences shall be determined by the provisions of the Treaties relating to each area.
***
Research Paper 07/86 gave the following presentation and assessment of the proposed amendments:
“The amended TFEU opens with a statement on its purpose, which is, according to amended Article 1 (Lisbon Article 1a), to organise the functioning of the Union and determine the areas, the scope of, and arrangements for exercising its competences. This Article makes clear the difference between the TFEU and the TEU, which contains intergovernmental procedures for the CFSP, treaty revision, ratification and other matters largely not subject to Union decision-making processes. There was no such Article in the Constitution. Amended Article 2 spells out that the TFEU and the TEU are the founding Treaties of the Union and have the same legal value. The present TEU and TEC are also both legally valid, although subject to different decision-making processes. The Categories and Areas of Union Competence are set out in Title 1, Lisbon Articles 2A–E (Constitution Articles I-12 to I-15 and I-17). Constitution Article I-16, on the Union’s competence in the Common Foreign and Security Policy (CFSP), the progressive framing of a common defence policy and the requirement for loyalty and mutual solidarity, remains intergovernmental and is transferred to Article 11(3) of the TEU.”
***
The Swedish government’s Green Paper described the changes like this (page 143):
”Sammanfattning: Bestämmelser om indelning av unionens befogenheter i kategorier och områden införs i EUF-fördraget. Därmed blir befogenhetsfördelningen inom unionen mer överskådlig och ansvarsutkrävandet underlättas. Unionens befogenheter indelas i tre kategorier. Indelningen görs utifrån den befogenhet att lagstifta som unionen har tilldelats och beroende på om denna befogenhet tilldelats unionen ensam (exklusiv befogenhet), tillsammans med medlemsstaterna (delad befogenhet) eller om den i huvudsak omfattas av medlemsstaternas befogenhet (stödjande, samordnande eller kompletterande åtgärder).
En särskild bestämmelse införs i EUF-fördraget för att klargöra den särskilda karaktären hos samordningen av medlemsstaternas ekonomiska politik och sysselsättningspolitik.
En särskild bestämmelse införs också i EUF-fördraget för att klargöra att den gemensamma utrikes- och säkerhetspolitiken är av särskild art.
Tillämpningsområdet för flexibilitetsklausulen utvidgas och den parlamentariska kontrollen av klausulens användning stärks.”
The qualitative key words were more ’lucidity’ leading to improved ’accountability’.
***
If we take a step back a few years in history, we can see that the European Convention proposed an Article I-11, already mentioned above, Categories of competence in the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/10):
Article I-11
Categories of competence
1. When the Constitution confers on the Union exclusive competence in a specific area, only the Union may legislate and adopt legally binding acts, the Member States being able to do so themselves only if so empowered by the Union or for the implementation of acts adopted by the Union.
2. When the Constitution confers on the Union a competence shared with the Member States in a specific area, the Union and the Member States shall have the power to legislate and adopt legally binding acts in that area. The Member States shall exercise their competence to the extent that the Union has not exercised, or has decided to cease exercising, its competence.
3. The Union shall have competence to promote and coordinate the economic and employment policies of the Member States.
4. The Union shall have competence to define and implement a common foreign and security policy, including the progressive framing of a common defence policy.
5. In certain areas and in the conditions laid down in the Constitution, the Union shall have competence to carry out actions to support, coordinate or supplement the actions of the Member States, without thereby superseding their competence in these areas.
6. The scope of and arrangements for exercising the Union's competences shall be determined by the provisions specific to each area in Part III.
***
In the Treaty establishing a Constitution for Europe the member states had agreed on the following wording in Article I-12 (OJ 16.12.2004 C 310/15):
Article I-12
Categories of competence
1. When the Constitution confers on the Union exclusive competence in a specific area, only the Union may legislate and adopt legally binding acts, the Member States being able to do so themselves only if so empowered by the Union or for the implementation of Union acts.
2. When the Constitution confers on the Union a competence shared with the Member States in a specific area, the Union and the Member States may legislate and adopt legally binding acts in that area. The Member States shall exercise their competence to the extent that the Union has not exercised, or has decided to cease exercising, its competence.
3. The Member States shall coordinate their economic and employment policies within arrangements as determined by Part III, which the Union shall have competence to provide.
4. The Union shall have competence to define and implement a common foreign and security policy, including the progressive framing of a common defence policy.
5. In certain areas and under the conditions laid down in the Constitution, the Union shall have competence to carry out actions to support, coordinate or supplement the actions of the Member States, without thereby superseding their competence in these areas.
Legally binding acts of the Union adopted on the basis of the provisions in Part III relating to these areas shall not entail harmonisation of Member States' laws or regulations.
6. The scope of and arrangements for exercising the Union's competences shall be determined by the provisions relating to each area in Part III.
***
You can make the comparison yourself; follow the drafting from the draft Constitution to the Constitution and now to the Lisbon Treaty.
My conclusion would be that once again we can see the debt of gratitude we owe the European Convention for an important improvement.
***
In order to supplement this compilation of resources, we turn to some documents pertaining to the Lisbon Treaty.
The member states have agreed on the following Protocol (OJ 17.12.2007 C 306/156):
Protocol
on the exercise of shared competence
THE HIGH CONTRACTING PARTIES
HAVE AGREED UPON the following provisions, which shall be annexed to the Treaty on European Union and to the Treaty on the Functioning of the European Union:
Sole Article
With reference to Article 2 A of the Treaty on the Functioning of the European Union on shared competence, when the Union has taken action in a certain area, the scope of this exercise of competence only covers those elements governed by the Union act in question and therefore does not cover the whole area.
***
We also take note of two relevant Declarations, number 17 and 18 (OJ 17.12.2007 C 306/254-255):
17. Declaration concerning primacy
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 the 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.”
[Footnote 1 then quotes the ECJ]
(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.”’
***
In my humble opinion, it would have been more illuminating to state the well established supremacy or primacy of (EC) EU law openly, as the European Convention did in the draft Constitution:
Article 10(1)
Union law
1. The Constitution, and law adopted by the Union's Institutions in exercising competences conferred on it, shall have primacy over the law of the Member States.
The IGC 2004 followed the same principle of transparent lawmaking in Article I-6 Union law of the Constitutional Treaty:
Article I-6
Union law
The Constitution and law adopted by the institutions of the Union in exercising competences conferred on it shall have primacy over the law of the Member States.
***
Relegating this crucial piece of information to an obscure declaration did nothing to change the fact that all the governments of the member states acknowledge of the principle of primacy, but the text of the Lisbon Treaty itself is less transparent as a result.
Perhaps nothing can console those who are most vexed at the principle of supremacy, but I would like to point out that it applies within the powers conferred on the European Union, not as a license to override or overturn national legislation or parliamentary powers in general.
And the Treaty of Lisbon does nothing to change the fact that both present and future conferral of powers to the EU remains in the hands of the member states’ governments, with approval by their parliaments.
***
This is further elaborated in the other relevant Declaration of the Lisbon Treaty, which is the one on delimitation of competences (OJ 17.12.2007 C 306/254-255):
“18. Declaration in relation to the delimitation of competences
The Conference underlines that, in accordance with the system of division of competences between the Union and the Member States as provided for in the Treaty on European Union and the Treaty on the Functioning of the European Union, competences not conferred upon the Union in the Treaties remain with the Member States.
When the Treaties confer on the Union a competence shared with the Member States in a specific area, the Member States shall exercise their competence to the extent that the Union has not exercised, or has decided to cease exercising, its competence. The latter situation arises when the relevant EU institutions decide to repeal a legislative act, in particular better to ensure constant respect for the principles of subsidiarity and proportionality. The Council may, at the initiative of one or several of its members (representatives of Member States) and in accordance with Article 208 of the Treaty on the Functioning of the European Union, request the Commission to submit proposals for repealing a legislative act. The Conference welcomes the Commission's declaration that it will devote particular attention to these requests.
Equally, the representatives of the governments of the Member States, meeting in an Intergovernmental Conference, in accordance with the ordinary revision procedure provided for in Article 48(2) to (5) of the Treaty on European Union, may decide to amend the Treaties upon which the Union is founded, including either to increase or to reduce the competences conferred on the Union in the said Treaties.”
***
We can see that the European Union can not only ‘usurp’ powers from the member states, but also relinquish competences, especially if these powers can be better exercised at the member state level.
The common foreign and security policy and the common security and defence policy remain distinct areas of intergovernmental cooperation, and the provisions on competences are housed in the Treaty on European Union (TEU). I refer the interested reader to earlier postings on the TEU.
In the following TFEU instalments we are going to take a closer look at the areas where the different categories of competence are applied, the three main categories, as well as specific coordination of economic and employment policies.
Ralf Grahn
Sources:
EU Law Blog: Reform Treaty: Taxonomy of Competence; 13 January 2008;
http://eulaw.typepad.com/eulawblog/2008/01/reform-treaty-t.html
Étienne de Poncins: Vers une Constitution européenne. Texte commenté du projet de traité constitutionel établi par la Convention européenne ; Éditions 10/18, 2003 ; www.10-18.fr
UK House of Commons Library Research Paper 07/86, 6 December 2007, The Treaty of Lisbon: amendments to the Treaty establishing the European Community
Statsrådsberedningen: Lissabonfördraget; Departementsserien (Ds) 2007:48, 20 december 2007 (‘Green Paper’ of the government of Sweden)
http://eulaw.typepad.com/eulawblog/2008/01/reform-treaty-t.html –
taxonomy meaning a system of classification. Having offered you a succinct option, I feel less guilty about the rambling Sunday constitutional (with small ‘c’) I am going embark on concerning the different categories of EU competence, as presented in the Treaty of Lisbon (ToL).
Étienne de Poncins in “Vers une Constitution européenne" pointed out that Title III of Part I of the draft Treaty establishing a Constitution for Europe, and especially Article I-11, was based on the Laeken declaration aim to make the distribution of competences more transparent, and to answer the question: Who is responsible for what in Europe? This was to be achieved by dividing competences into three main categories: exclusive competence, shared competence and competence to carry out actions to support, coordinate or supplement the actions of the Member States (pages 102-103).
***
Since the main categories of powers mentioned as well as the specialised coordination procedures are going to be treated separately (or have been, concerning the CFSP and CSDP), this posting offers an assortment of general observations, primarily based on official resources.
***
Deprived of symbols and battered by two intergovernmental conferences, the achievement of the European Convention, the draft Treaty establishing a Constitution for Europe, remains a milestone in the development of the European Treaties.
The second Convention was broadly based. It drew its members from the national parliaments, the European Parliament, representatives of the heads of state or government and the Commission under the guidance of a chairman and two vice-presidents chosen by the European Council.
Most of the treaty novelties and improvements discussed lately can be traced back to the Convention. Its main contributions concern the institutional decision making of the European Union, the framing of an incipient common foreign and security policy (CFSP), including a common security and defence policy (CSDP), and a more comprehensive area of freedom, security and justice.
The draft Constitution clarified and improved on the patchwork reforms of earlier treaties. One such instance is the clear exposition of different categories of EU competence.
***
The UK House of Commons Library Research Paper 07/86, 6 December 2007, “The Treaty of Lisbon: amendments to the Treaty establishing the European Community” (page 11 and 12), set out the background of the present state of different categories of competences:
“A. Union Competence
1. Defining competences
‘Competence’ is the term used to define whether the Union or the Member States has the responsibility under the EC Treaties to make decisions on a particular policy. Competence at regional or local level is not specified in the Lisbon Treaty. In defining whether the EC or the Member States have competence in any particular area or for a specific task, the terms “spheres of competence”, “shared competence”, “Community competence” and “exclusive competence” are terms used in the present Treaties, but these do not list areas of exclusive or shared competence. The following EU explanation of competences, or powers, reflects the current situation:
There are three types of powers, which depend on how they are conferred:
Explicit powers: these are clearly defined in the relevant articles of the Treaties.
Implicit powers: according to the implicit powers theory, competence in external matters derives from explicit internal competence. Where the Treaties assign explicit powers to the Community in a particular area (e.g. transport), it must also have similar powers to conclude agreements with non-Community countries in the same field (the principle of parallelism between internal and external powers).
Subsidiary powers: where the Community has no explicit or implicit powers to achieve a Treaty objective concerning the common market, Article 308 of the Treaty establishing the European Community allows the Council, acting unanimously, to take the measures it considers necessary.”
***
Research Paper 07/86 went on to describe the discussions during the last reform round:
“In the 2003-04 constitutional discussions, which initially included the EU institutions, Member State governments and parliaments, NGOs and a range of representatives from civil society, some participants wanted comprehensive lists setting out divisions of competence, while others preferred a more flexible approach without lists. The Lisbon Treaty, like the Constitution in 2004, contains a compromise: there are lists, but they are short and do not cover every aspect of Union activity, thereby leaving scope for interpretation. They define ‘exclusive’ and ‘shared’ competences, and areas in which the Union can provide supporting or complementary action.”
***
Having presented a general view, the Research Paper continued with a presentation of the cautious UK government position:
“In its 2004 White Paper on the draft Constitution the British Government had generally welcomed the division of competences, but had been cautious about further conferral of powers on the Union. The present White Paper of July 2007 also supported the reforms in this respect, and particularly welcomed the Declaration stating that competences can be reduced, as well as increased:
The Reform Treaty will set out a more transparent and accountable structure for the EU. It includes a definition of the Union’s competences, which sets out where the EU can and cannot act. It also makes clear that Treaties can be revised to increase or reduce the competences conferred upon the EU. Therefore, the Member States would have the ability to transfer competences from the EU if they agree to do so.”
***
Perhaps we should proceed with an overview of the mandate of the intergovernmental conference concerning the Treaty establishing the European Community (TEC), to be renamed the Treaty on the Functioning of the European Union (TFEU).
The IGC 2007 Mandate (Council document 11218/07, point 18) first established its predecessor, the IGC 2004 as the basis for the amendments to be made:
“18. The innovations as agreed in the 2004 IGC will be inserted into the Treaty by way of specific modifications in the usual manner. They concern the categories and areas of competences, the scope of qualified majority voting and of codecision, the distinction between legislative and non legislative acts, provisions inter alia on the Area of freedom, security and justice, the solidarity clause, the improvements to the governance of the euro, horizontal provisions such as the social clause, specific provisions such as public services, space, energy, civil protection, humanitarian aid, public health, sport, tourism, outermost regions, administrative cooperation, financial provisions (own resources, multiannual financial framework, new budgetary procedure).”
***
The IGC 2007 then went on to enumerate the exceptions to the rule, first generally and then concerning the vertical division of powers:
“19. The following modifications will be introduced compared to the results of the 2004 IGC (see Annex 2):
a) A new Article 1 will state the purpose of the Treaty on the functioning of the Union and its relation with the EU Treaty. It will state that the two Treaties have the same legal value.
b) In the Article on categories of competences, placed at the beginning of the TEC, it will be clearly specified that the Member States will exercise again their competence to the extent that the Union has decided to cease exercising its competence.”
Footnote 10 gave further guidance:
“10 (a) The IGC will also agree a Declaration in relation to the delimitation of competences: "The Conference underlines that, in accordance with the system of division of competences between the Union and the Member States as provided for in the Treaty on European Union, competences not conferred upon the Union in the Treaties remain with Member States.
When the Treaties confer on the Union a competence shared with the Member States in a specific area, the Member States shall exercise their competence to the extent that the Union has not exercised, or has decided to cease exercising, its competence. The latter situation arises when the relevant EU institutions decide to repeal a legislative act, in particular to better ensure the constant respect for the principles of subsidiarity and proportionality. The Council may request, at the initiative of one or several of its Members (representatives of Member States) and in accordance with Article 208, the Commission to submit proposals for repealing a legislative act. Equally, the representatives of the governments of the Member States, meeting in an Intergovernmental Conference, in accordance with the ordinary revision procedure provided for in Article [IV-443] of the Treaty on European Union, may decide to amend the Treaties on which the Union is founded, including either to increase or to reduce the competences conferred on the Union in the said Treaties."
(b) The following Protocol will be annexed to the Treaties:
"With reference to Article[ I-12(2)] on shared competences, when the Union has taken action in a certain area, the scope of this exercise of competence only covers those elements governed by the Union act in question and therefore does not cover the whole area.”
***
The (IGC 2007) duly inserted a new Title I Categories and areas of Union competence into the Treaty on the Functioning of the European Union (TFEU) and at its beginning an Article 2a, which lays out the different categories (OJ 17.12.2007 C 306/45).
12) The following new Title and new Articles 2 A to 2 E shall be inserted:
‘TITLE I
CATEGORIES AND AREAS OF UNION COMPETENCE
Article 2a TFEU (ToL), after renumbering Article 2 TFEU
1. When the Treaties confer on the Union exclusive competence in a specific area, only the Union may legislate and adopt legally binding acts, the Member States being able to do so themselves only if so empowered by the Union or for the implementation of Union acts.
2. When the Treaties confer on the Union a competence shared with the Member States in a specific area, the Union and the Member States may legislate and adopt legally binding acts in that area. The Member States shall exercise their competence to the extent that the Union has not exercised its competence. The Member States shall again exercise their competence to the extent that the Union has decided to cease exercising its competence.
3. The Member States shall coordinate their economic and employment policies within arrangements as determined by this Treaty, which the Union shall have competence to provide.
4. The Union shall have competence, in accordance with the provisions of the Treaty on European Union, to define and implement a common foreign and security policy, including the progressive framing of a common defence policy.
5. In certain areas and under the conditions laid down in the Treaties, the Union shall have competence to carry out actions to support, coordinate or supplement the actions of the Member States, without thereby superseding their competence in these areas.
Legally binding acts of the Union adopted on the basis of the provisions of the Treaties relating to these areas shall not entail harmonisation of Member States' laws or regulations.
6. The scope of and arrangements for exercising the Union's competences shall be determined by the provisions of the Treaties relating to each area.
***
Research Paper 07/86 gave the following presentation and assessment of the proposed amendments:
“The amended TFEU opens with a statement on its purpose, which is, according to amended Article 1 (Lisbon Article 1a), to organise the functioning of the Union and determine the areas, the scope of, and arrangements for exercising its competences. This Article makes clear the difference between the TFEU and the TEU, which contains intergovernmental procedures for the CFSP, treaty revision, ratification and other matters largely not subject to Union decision-making processes. There was no such Article in the Constitution. Amended Article 2 spells out that the TFEU and the TEU are the founding Treaties of the Union and have the same legal value. The present TEU and TEC are also both legally valid, although subject to different decision-making processes. The Categories and Areas of Union Competence are set out in Title 1, Lisbon Articles 2A–E (Constitution Articles I-12 to I-15 and I-17). Constitution Article I-16, on the Union’s competence in the Common Foreign and Security Policy (CFSP), the progressive framing of a common defence policy and the requirement for loyalty and mutual solidarity, remains intergovernmental and is transferred to Article 11(3) of the TEU.”
***
The Swedish government’s Green Paper described the changes like this (page 143):
”Sammanfattning: Bestämmelser om indelning av unionens befogenheter i kategorier och områden införs i EUF-fördraget. Därmed blir befogenhetsfördelningen inom unionen mer överskådlig och ansvarsutkrävandet underlättas. Unionens befogenheter indelas i tre kategorier. Indelningen görs utifrån den befogenhet att lagstifta som unionen har tilldelats och beroende på om denna befogenhet tilldelats unionen ensam (exklusiv befogenhet), tillsammans med medlemsstaterna (delad befogenhet) eller om den i huvudsak omfattas av medlemsstaternas befogenhet (stödjande, samordnande eller kompletterande åtgärder).
En särskild bestämmelse införs i EUF-fördraget för att klargöra den särskilda karaktären hos samordningen av medlemsstaternas ekonomiska politik och sysselsättningspolitik.
En särskild bestämmelse införs också i EUF-fördraget för att klargöra att den gemensamma utrikes- och säkerhetspolitiken är av särskild art.
Tillämpningsområdet för flexibilitetsklausulen utvidgas och den parlamentariska kontrollen av klausulens användning stärks.”
The qualitative key words were more ’lucidity’ leading to improved ’accountability’.
***
If we take a step back a few years in history, we can see that the European Convention proposed an Article I-11, already mentioned above, Categories of competence in the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/10):
Article I-11
Categories of competence
1. When the Constitution confers on the Union exclusive competence in a specific area, only the Union may legislate and adopt legally binding acts, the Member States being able to do so themselves only if so empowered by the Union or for the implementation of acts adopted by the Union.
2. When the Constitution confers on the Union a competence shared with the Member States in a specific area, the Union and the Member States shall have the power to legislate and adopt legally binding acts in that area. The Member States shall exercise their competence to the extent that the Union has not exercised, or has decided to cease exercising, its competence.
3. The Union shall have competence to promote and coordinate the economic and employment policies of the Member States.
4. The Union shall have competence to define and implement a common foreign and security policy, including the progressive framing of a common defence policy.
5. In certain areas and in the conditions laid down in the Constitution, the Union shall have competence to carry out actions to support, coordinate or supplement the actions of the Member States, without thereby superseding their competence in these areas.
6. The scope of and arrangements for exercising the Union's competences shall be determined by the provisions specific to each area in Part III.
***
In the Treaty establishing a Constitution for Europe the member states had agreed on the following wording in Article I-12 (OJ 16.12.2004 C 310/15):
Article I-12
Categories of competence
1. When the Constitution confers on the Union exclusive competence in a specific area, only the Union may legislate and adopt legally binding acts, the Member States being able to do so themselves only if so empowered by the Union or for the implementation of Union acts.
2. When the Constitution confers on the Union a competence shared with the Member States in a specific area, the Union and the Member States may legislate and adopt legally binding acts in that area. The Member States shall exercise their competence to the extent that the Union has not exercised, or has decided to cease exercising, its competence.
3. The Member States shall coordinate their economic and employment policies within arrangements as determined by Part III, which the Union shall have competence to provide.
4. The Union shall have competence to define and implement a common foreign and security policy, including the progressive framing of a common defence policy.
5. In certain areas and under the conditions laid down in the Constitution, the Union shall have competence to carry out actions to support, coordinate or supplement the actions of the Member States, without thereby superseding their competence in these areas.
Legally binding acts of the Union adopted on the basis of the provisions in Part III relating to these areas shall not entail harmonisation of Member States' laws or regulations.
6. The scope of and arrangements for exercising the Union's competences shall be determined by the provisions relating to each area in Part III.
***
You can make the comparison yourself; follow the drafting from the draft Constitution to the Constitution and now to the Lisbon Treaty.
My conclusion would be that once again we can see the debt of gratitude we owe the European Convention for an important improvement.
***
In order to supplement this compilation of resources, we turn to some documents pertaining to the Lisbon Treaty.
The member states have agreed on the following Protocol (OJ 17.12.2007 C 306/156):
Protocol
on the exercise of shared competence
THE HIGH CONTRACTING PARTIES
HAVE AGREED UPON the following provisions, which shall be annexed to the Treaty on European Union and to the Treaty on the Functioning of the European Union:
Sole Article
With reference to Article 2 A of the Treaty on the Functioning of the European Union on shared competence, when the Union has taken action in a certain area, the scope of this exercise of competence only covers those elements governed by the Union act in question and therefore does not cover the whole area.
***
We also take note of two relevant Declarations, number 17 and 18 (OJ 17.12.2007 C 306/254-255):
17. Declaration concerning primacy
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 the 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.”
[Footnote 1 then quotes the ECJ]
(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.”’
***
In my humble opinion, it would have been more illuminating to state the well established supremacy or primacy of (EC) EU law openly, as the European Convention did in the draft Constitution:
Article 10(1)
Union law
1. The Constitution, and law adopted by the Union's Institutions in exercising competences conferred on it, shall have primacy over the law of the Member States.
The IGC 2004 followed the same principle of transparent lawmaking in Article I-6 Union law of the Constitutional Treaty:
Article I-6
Union law
The Constitution and law adopted by the institutions of the Union in exercising competences conferred on it shall have primacy over the law of the Member States.
***
Relegating this crucial piece of information to an obscure declaration did nothing to change the fact that all the governments of the member states acknowledge of the principle of primacy, but the text of the Lisbon Treaty itself is less transparent as a result.
Perhaps nothing can console those who are most vexed at the principle of supremacy, but I would like to point out that it applies within the powers conferred on the European Union, not as a license to override or overturn national legislation or parliamentary powers in general.
And the Treaty of Lisbon does nothing to change the fact that both present and future conferral of powers to the EU remains in the hands of the member states’ governments, with approval by their parliaments.
***
This is further elaborated in the other relevant Declaration of the Lisbon Treaty, which is the one on delimitation of competences (OJ 17.12.2007 C 306/254-255):
“18. Declaration in relation to the delimitation of competences
The Conference underlines that, in accordance with the system of division of competences between the Union and the Member States as provided for in the Treaty on European Union and the Treaty on the Functioning of the European Union, competences not conferred upon the Union in the Treaties remain with the Member States.
When the Treaties confer on the Union a competence shared with the Member States in a specific area, the Member States shall exercise their competence to the extent that the Union has not exercised, or has decided to cease exercising, its competence. The latter situation arises when the relevant EU institutions decide to repeal a legislative act, in particular better to ensure constant respect for the principles of subsidiarity and proportionality. The Council may, at the initiative of one or several of its members (representatives of Member States) and in accordance with Article 208 of the Treaty on the Functioning of the European Union, request the Commission to submit proposals for repealing a legislative act. The Conference welcomes the Commission's declaration that it will devote particular attention to these requests.
Equally, the representatives of the governments of the Member States, meeting in an Intergovernmental Conference, in accordance with the ordinary revision procedure provided for in Article 48(2) to (5) of the Treaty on European Union, may decide to amend the Treaties upon which the Union is founded, including either to increase or to reduce the competences conferred on the Union in the said Treaties.”
***
We can see that the European Union can not only ‘usurp’ powers from the member states, but also relinquish competences, especially if these powers can be better exercised at the member state level.
The common foreign and security policy and the common security and defence policy remain distinct areas of intergovernmental cooperation, and the provisions on competences are housed in the Treaty on European Union (TEU). I refer the interested reader to earlier postings on the TEU.
In the following TFEU instalments we are going to take a closer look at the areas where the different categories of competence are applied, the three main categories, as well as specific coordination of economic and employment policies.
Ralf Grahn
Sources:
EU Law Blog: Reform Treaty: Taxonomy of Competence; 13 January 2008;
http://eulaw.typepad.com/eulawblog/2008/01/reform-treaty-t.html
Étienne de Poncins: Vers une Constitution européenne. Texte commenté du projet de traité constitutionel établi par la Convention européenne ; Éditions 10/18, 2003 ; www.10-18.fr
UK House of Commons Library Research Paper 07/86, 6 December 2007, The Treaty of Lisbon: amendments to the Treaty establishing the European Community
Statsrådsberedningen: Lissabonfördraget; Departementsserien (Ds) 2007:48, 20 december 2007 (‘Green Paper’ of the government of Sweden)
Saturday, 16 February 2008
Consolidated Lisbon Treaty Update
People continue to arrive at this blog looking for a consolidated version of the Treaty of Lisbon.
The last update of the list of consolidated language versions is not that old, published 8 February 2008. But since then a few kind souls have told us about new consolidations, and I have been able to take a look at some complementary sources. Therefore, the time for an update has come.
Let us remember that the European Union has 23 treaty and official languages. The intergovernmental conference itself professed its belief in linguistic diversity, and encouraged the translation of the treaties into regional and minority languages by the member state governments.
As far as I know, with the exception of a leaked French version from the European Parliament, none of the consolidations has been produced by the EU institutions, and only one directly by a government. The rest have been compiled by parliaments, think-tanks, NGOs and private citizens.
The nine or ten languages with consolidated versions published to date cover only parts of our community of 490 million citizens.
Here is an updated list of the language versions found this far (almost all in pdf format), with the languages mentioned in alphabetical order in English:
Danish
The EU information of the Danish parliament communicates actively. Some information is available in English, too. The consolidated Lisbon Treaty is an update.
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/
***
Dutch
The DJ Nozem blog pointed me towards this new consolidation in Word format, compiled by René Barents and posted on the web site of the daily NRC Handelsblad.
René Barents: Geconsolideerde teksten van het Verdrag betreffende de Europese Unie en het Verdrag betreffende de werking van de Europese Unie zoals gewijzigd door het Verdrag van Lissabon
http://www.nrc.nl/redactie/Europa/verdraglissabon_barents.doc
***
English
IIEA
Peadar ó Broin at the Institute of International and European Affairs (Dublin, Ireland) has produced a complete updated consolidation of the amended treaties, including the protocols and annexes, in a format easy to read (pdf).
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 an annotated version consisting of several files for the Statewatch Observatory on the EU Constitution and the Reform Treaty, where similarities and differences between the different reform stages are highlighted. Informative, if you know what you are looking for.
Go to http://www.statewatch.org
FCO
The UK Foreign and Commonwealth Office published a complete consolidated version of the Treaty of Lisbon. The ratification debate in the House of Commons is ongoing.
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, see Command Paper 7310 ‘Consolidated texts of the EU Treaties as amended by the Treaty of Lisbon’:
http://www.fco.gov.uk/Files/kfile/FCO_PDF_CM7310_ConsolidatedTreaties.pdf
The FCO 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 article by article. Available through the Official Documents web page (as is Cm 7310 mentioned above):
http://www.official-documents.gov.uk/
Markus Walther
Markus Walther, a German student from Leipzig, who produced and published a German consolidated version of the EU Treaty of Lisbon on his web site, 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 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;
http://www.openeurope.org.uk/research/comparative.pdf
***
Finnish
Europe Information, of the Ministry for Foreign Affairs, has promised a consolidated version during the spring.
***
French
Europa-EU-Audience
The bilingual web site en.europa-eu-audience found two unofficial parallel versions of the amending treaties in French, side by side with the current ones:
http://europa-eu-audience.typepad.com/fr/files/EP_TCE_versus_TFU_Final.doc
http://europa-eu-audience.typepad.com/fr/files/EP_TUE_versus_TUE_final.doc
Assemblée nationale
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
Later, the French National Assembly has presented a consolidated version of the Treaty of Lisbon side by side with the current treaties. Look for Assemblée Nationale: Rapport d’information déposé par la Délégation de l’Assemblée Nationale pour l’Union Européenne, sur le traité de Lisbonne ; No 562, Tome 2, 8 janvier 2008 :
http://www.assemblee-nationale.fr/13/dossiers/traite_lisbonne_due_information.asp
Jean-Luc Sauron
Jean-Luc Sauron: Comprendre le Traité de Lisbonne – Texte consolidé intégral des traités – Explications et commentaires ; Gualino éditeur, Paris 2008 ; 351 p. (Prix 20 €)
The book (pages 141 – 351) contains, in a handy format, consolidated versions of the amended Treaty on European Union, the Treaty on the Functioning of the European Union, the Charter of Fundamental Rights and the Explanations relating to it as well as a modest Index.
In principle, the Treaty texts are based on a version from 30 October 2007, but footnotes take later modifications into account.
***
German
Markus Walther
Markus Walther: Das Primärrecht der Europäischen Union; Endfassung, Stand 18. Dezember 2007; (updated after signing)
http://www.mwalther.net/union.html
Klemens H. Fischer
The book “Der Vertrag von Lissabon – Text und Kommentar zum Europäischen Reformvertrag”, by Klemens H. Fischer (Nomos, Stämpfli Verlag and Verlag Österreich) describes the EU reform process and especially the IGC 2007 before it presents consolidated and annotated versions of the TEU and TFEU including protocols and declarations. The accompanying CD-Rom contains background material and three different consolidations of each treaty: with amendments highlighted and footnotes, with amendments highlighted and a neutral consolidated version.
***
Hungarian
Two sources reported that the Hungarian government has published a consolidation of the Lisbon Treaty, although was not able to verify it. But I encourage anyone with the linguistic and technical skills to search (and to report back).
***
Irish Gaelic
A consolidation in Irish Gaelic has been announced by the Institute of International and European Affairs, Dublin.
Go to http://www.iiea.com
***
Portuguese
Peadar ó Broin reported on a version in Portuguese also, prepared by the Portuguese Ministry of Foreign Affairs:
http://www.eu2007.pt/NR/rdonlyres/1D96311C-F90D-4E97-B355-DFEA0DD1ABEA/0/TLconsolidado.pdf
Alternatively, you can link to the text via the website for the Ministry of Foreign Affairs:
http://www.mne.gov.pt/
Or you can link via the website for the Portuguese Presidency of 2007:
http://www.eu2007.pt/UE/vPT/Presidencia_Conselho/TratadoLisboa.htm
***
Spanish
Real Instituto Elcano offers a complete updated consolidation, with protocols and declarations, in Spanish, compiled by José Martín y Pérez de Nanclares and Mariola Urrea Corres. The former has written an introductory study.
http://www.realinstitutoelcano.org
***
Swedish
Sieps – Svenska institutet för europapolitiska studier, the Swedish Institute for European Policy Studies, has published a complete consolidated Swedish language version of the Lisbon Treaty.
Ladda ned Lissabonfördraget - Konsoliderad version av EU:s fördrag (pdf)
Ladda ned Lissabonfördraget – Protokoll mm (pdf)
http://www.sieps.se
The publisher SNS Förlag has announced a handy pocket version of the Treaty of Lisbon in Swedish, to be published 29 February 2008. If the new publication follows the pattern of the previous pocket treaties by SNS, it will contain the bare treaty texts.
http://www.sns.se
***
If the number of languages with consolidated versions was seven or eight (Hungarian attested but not verified) last time the list was published, we now know of 9 or 10 official EU languages covered out of 23.
Are there more consolidated versions the citizens of the European Union should be aware of?
I am most grateful, if you want to share your knowledge on the Treaty of Lisbon with me and other EU citizens: consolidated versions as well as books and resources, such as official documents from the member states’ governments and parliaments, scholarly assessments and popular literature, plus information on the ratification processes.
Ralf Grahn
The last update of the list of consolidated language versions is not that old, published 8 February 2008. But since then a few kind souls have told us about new consolidations, and I have been able to take a look at some complementary sources. Therefore, the time for an update has come.
Let us remember that the European Union has 23 treaty and official languages. The intergovernmental conference itself professed its belief in linguistic diversity, and encouraged the translation of the treaties into regional and minority languages by the member state governments.
As far as I know, with the exception of a leaked French version from the European Parliament, none of the consolidations has been produced by the EU institutions, and only one directly by a government. The rest have been compiled by parliaments, think-tanks, NGOs and private citizens.
The nine or ten languages with consolidated versions published to date cover only parts of our community of 490 million citizens.
Here is an updated list of the language versions found this far (almost all in pdf format), with the languages mentioned in alphabetical order in English:
Danish
The EU information of the Danish parliament communicates actively. Some information is available in English, too. The consolidated Lisbon Treaty is an update.
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/
***
Dutch
The DJ Nozem blog pointed me towards this new consolidation in Word format, compiled by René Barents and posted on the web site of the daily NRC Handelsblad.
René Barents: Geconsolideerde teksten van het Verdrag betreffende de Europese Unie en het Verdrag betreffende de werking van de Europese Unie zoals gewijzigd door het Verdrag van Lissabon
http://www.nrc.nl/redactie/Europa/verdraglissabon_barents.doc
***
English
IIEA
Peadar ó Broin at the Institute of International and European Affairs (Dublin, Ireland) has produced a complete updated consolidation of the amended treaties, including the protocols and annexes, in a format easy to read (pdf).
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 an annotated version consisting of several files for the Statewatch Observatory on the EU Constitution and the Reform Treaty, where similarities and differences between the different reform stages are highlighted. Informative, if you know what you are looking for.
Go to http://www.statewatch.org
FCO
The UK Foreign and Commonwealth Office published a complete consolidated version of the Treaty of Lisbon. The ratification debate in the House of Commons is ongoing.
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, see Command Paper 7310 ‘Consolidated texts of the EU Treaties as amended by the Treaty of Lisbon’:
http://www.fco.gov.uk/Files/kfile/FCO_PDF_CM7310_ConsolidatedTreaties.pdf
The FCO 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 article by article. Available through the Official Documents web page (as is Cm 7310 mentioned above):
http://www.official-documents.gov.uk/
Markus Walther
Markus Walther, a German student from Leipzig, who produced and published a German consolidated version of the EU Treaty of Lisbon on his web site, 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 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;
http://www.openeurope.org.uk/research/comparative.pdf
***
Finnish
Europe Information, of the Ministry for Foreign Affairs, has promised a consolidated version during the spring.
***
French
Europa-EU-Audience
The bilingual web site en.europa-eu-audience found two unofficial parallel versions of the amending treaties in French, side by side with the current ones:
http://europa-eu-audience.typepad.com/fr/files/EP_TCE_versus_TFU_Final.doc
http://europa-eu-audience.typepad.com/fr/files/EP_TUE_versus_TUE_final.doc
Assemblée nationale
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
Later, the French National Assembly has presented a consolidated version of the Treaty of Lisbon side by side with the current treaties. Look for Assemblée Nationale: Rapport d’information déposé par la Délégation de l’Assemblée Nationale pour l’Union Européenne, sur le traité de Lisbonne ; No 562, Tome 2, 8 janvier 2008 :
http://www.assemblee-nationale.fr/13/dossiers/traite_lisbonne_due_information.asp
Jean-Luc Sauron
Jean-Luc Sauron: Comprendre le Traité de Lisbonne – Texte consolidé intégral des traités – Explications et commentaires ; Gualino éditeur, Paris 2008 ; 351 p. (Prix 20 €)
The book (pages 141 – 351) contains, in a handy format, consolidated versions of the amended Treaty on European Union, the Treaty on the Functioning of the European Union, the Charter of Fundamental Rights and the Explanations relating to it as well as a modest Index.
In principle, the Treaty texts are based on a version from 30 October 2007, but footnotes take later modifications into account.
***
German
Markus Walther
Markus Walther: Das Primärrecht der Europäischen Union; Endfassung, Stand 18. Dezember 2007; (updated after signing)
http://www.mwalther.net/union.html
Klemens H. Fischer
The book “Der Vertrag von Lissabon – Text und Kommentar zum Europäischen Reformvertrag”, by Klemens H. Fischer (Nomos, Stämpfli Verlag and Verlag Österreich) describes the EU reform process and especially the IGC 2007 before it presents consolidated and annotated versions of the TEU and TFEU including protocols and declarations. The accompanying CD-Rom contains background material and three different consolidations of each treaty: with amendments highlighted and footnotes, with amendments highlighted and a neutral consolidated version.
***
Hungarian
Two sources reported that the Hungarian government has published a consolidation of the Lisbon Treaty, although was not able to verify it. But I encourage anyone with the linguistic and technical skills to search (and to report back).
***
Irish Gaelic
A consolidation in Irish Gaelic has been announced by the Institute of International and European Affairs, Dublin.
Go to http://www.iiea.com
***
Portuguese
Peadar ó Broin reported on a version in Portuguese also, prepared by the Portuguese Ministry of Foreign Affairs:
http://www.eu2007.pt/NR/rdonlyres/1D96311C-F90D-4E97-B355-DFEA0DD1ABEA/0/TLconsolidado.pdf
Alternatively, you can link to the text via the website for the Ministry of Foreign Affairs:
http://www.mne.gov.pt/
Or you can link via the website for the Portuguese Presidency of 2007:
http://www.eu2007.pt/UE/vPT/Presidencia_Conselho/TratadoLisboa.htm
***
Spanish
Real Instituto Elcano offers a complete updated consolidation, with protocols and declarations, in Spanish, compiled by José Martín y Pérez de Nanclares and Mariola Urrea Corres. The former has written an introductory study.
http://www.realinstitutoelcano.org
***
Swedish
Sieps – Svenska institutet för europapolitiska studier, the Swedish Institute for European Policy Studies, has published a complete consolidated Swedish language version of the Lisbon Treaty.
Ladda ned Lissabonfördraget - Konsoliderad version av EU:s fördrag (pdf)
Ladda ned Lissabonfördraget – Protokoll mm (pdf)
http://www.sieps.se
The publisher SNS Förlag has announced a handy pocket version of the Treaty of Lisbon in Swedish, to be published 29 February 2008. If the new publication follows the pattern of the previous pocket treaties by SNS, it will contain the bare treaty texts.
http://www.sns.se
***
If the number of languages with consolidated versions was seven or eight (Hungarian attested but not verified) last time the list was published, we now know of 9 or 10 official EU languages covered out of 23.
Are there more consolidated versions the citizens of the European Union should be aware of?
I am most grateful, if you want to share your knowledge on the Treaty of Lisbon with me and other EU citizens: consolidated versions as well as books and resources, such as official documents from the member states’ governments and parliaments, scholarly assessments and popular literature, plus information on the ratification processes.
Ralf Grahn
Friday, 15 February 2008
Der Vertrag von Lissabon
Klemens H. Fischer has published his latest book on the development of the European treaties. This time Fischer deals with the Treaty of Lisbon and the process leading to the amending reform treaty.
The book “Der Vertrag von Lissabon – Text und Kommentar zum Europäischen Reformvertrag”, by Klemens H. Fischer (Nomos, Stämpfli Verlag and Verlag Österreich) describes the EU reform process and especially the IGC 2007 before it presents consolidated and annotated versions of the TEU and TFEU, including protocols and declarations.
The accompanying CD-Rom contains background material, the current treaties and three different consolidations of each amending treaty:
with amendments highlighted and footnotes,
with amendments highlighted and
a neutral consolidated version.
***
Earlier Fischer has published books on the Treaty of Nice, the European Convention, the Treaty establishing a Constitution for Europe and the development of the European treaties,:
Der Vertrag von Nizza (2003)
Der Konvent zur Zukunft Europas (2003)
Der Europäische Verfassungsvertrag (2005)
Die Entwicklung des europäischen Vertragsrechts (2005)
***
The new book on the Treaty of Lisbon means that you can follow half a century of development of the European treaties from Rome to Lisbon without leaving Fischer, especially taking into account the ample documentation offered on the CD-Roms.
I have used three of Fischer’s books, and in my opinion they contain competent summaries of the background as well as diligently compiled annotations on the provisions.
The reading portions, based on close observation, are suited to a wider German reading public, and the annotated treaty texts are a valuable source for serious students of European integration.
Ralf Grahn
See:
Klemens H. Fischer: Der Vertrag von Lissabon – Text und Kommentar zum Europäischen Reformvertrag; with CD-Rom; Nomos, Stämpfli Verlag and Verlag Österreich, 2008; price about 79 €
The book “Der Vertrag von Lissabon – Text und Kommentar zum Europäischen Reformvertrag”, by Klemens H. Fischer (Nomos, Stämpfli Verlag and Verlag Österreich) describes the EU reform process and especially the IGC 2007 before it presents consolidated and annotated versions of the TEU and TFEU, including protocols and declarations.
The accompanying CD-Rom contains background material, the current treaties and three different consolidations of each amending treaty:
with amendments highlighted and footnotes,
with amendments highlighted and
a neutral consolidated version.
***
Earlier Fischer has published books on the Treaty of Nice, the European Convention, the Treaty establishing a Constitution for Europe and the development of the European treaties,:
Der Vertrag von Nizza (2003)
Der Konvent zur Zukunft Europas (2003)
Der Europäische Verfassungsvertrag (2005)
Die Entwicklung des europäischen Vertragsrechts (2005)
***
The new book on the Treaty of Lisbon means that you can follow half a century of development of the European treaties from Rome to Lisbon without leaving Fischer, especially taking into account the ample documentation offered on the CD-Roms.
I have used three of Fischer’s books, and in my opinion they contain competent summaries of the background as well as diligently compiled annotations on the provisions.
The reading portions, based on close observation, are suited to a wider German reading public, and the annotated treaty texts are a valuable source for serious students of European integration.
Ralf Grahn
See:
Klemens H. Fischer: Der Vertrag von Lissabon – Text und Kommentar zum Europäischen Reformvertrag; with CD-Rom; Nomos, Stämpfli Verlag and Verlag Österreich, 2008; price about 79 €
EU: TFEU Competences
The Treaty of Lisbon re-names one of the Treaties and re-arranges the contents of the Treaties.
***
Under Common provisions, the intergovernmental conference (IGC 2007) repealed the Articles 1 and 2 of the Treaty establishing the European Community (TEC) and inserted an Article 1a into the Treaty on the Functioning of the European Union (TFEU):
Article 1a TFEU – future Article 1 TFEU
1. This Treaty organises the functioning of the Union and determines the areas of, delimitation of, and arrangements for exercising its competences.
2. This Treaty and the Treaty on European Union constitute the Treaties on which the Union is founded. These two Treaties, which have the same legal value, shall be referred to as “the Treaties”.
***
The existing Article 1 TEC concerns the establishment of the European Community, which is being abolished by the Treaty of Lisbon and replaced by the all-encompassing European Union (EU). Therefore a referral to the new organisational and treaty structure seems to be in order.
The current Article 2 TEC refers to main tasks (goals) of the EC such as economic development, employment and social protection, as well as means to attain them, like the common market and economic and monetary union. These are shifted to and given a more systematic approach in the new Articles 2a and 2b TFEU.
The introductory provision of the TFEU connects the two amended Treaties, and it states in a low key the main themes for the rest of the TFEU: the functioning of the EU and the competences, the areas where the EU has powers, the different kinds of powers and how the EU goes about using them.
Ralf Grahn
***
Under Common provisions, the intergovernmental conference (IGC 2007) repealed the Articles 1 and 2 of the Treaty establishing the European Community (TEC) and inserted an Article 1a into the Treaty on the Functioning of the European Union (TFEU):
Article 1a TFEU – future Article 1 TFEU
1. This Treaty organises the functioning of the Union and determines the areas of, delimitation of, and arrangements for exercising its competences.
2. This Treaty and the Treaty on European Union constitute the Treaties on which the Union is founded. These two Treaties, which have the same legal value, shall be referred to as “the Treaties”.
***
The existing Article 1 TEC concerns the establishment of the European Community, which is being abolished by the Treaty of Lisbon and replaced by the all-encompassing European Union (EU). Therefore a referral to the new organisational and treaty structure seems to be in order.
The current Article 2 TEC refers to main tasks (goals) of the EC such as economic development, employment and social protection, as well as means to attain them, like the common market and economic and monetary union. These are shifted to and given a more systematic approach in the new Articles 2a and 2b TFEU.
The introductory provision of the TFEU connects the two amended Treaties, and it states in a low key the main themes for the rest of the TFEU: the functioning of the EU and the competences, the areas where the EU has powers, the different kinds of powers and how the EU goes about using them.
Ralf Grahn
Thursday, 14 February 2008
EU: TFEU Preamble
Why have the governments and parliaments of first six, now 27, nation states fallen for the siren call of ‘ever closer union’?
The first effort to present the general causes of and the historic reasons for European integration are found in the Preamble to the Treaty on the Functioning of the European Union (TFEU).
Even in its latest version the Preamble is almost frozen in time.
***
After the horizontal amendments, the intergovernmental conference (IGC 2007) advanced to specific amendments (OJ 17.12.2007 C 306/44):
B. Specific amendments
Preamble
10) In the second recital, the word ‘countries’ shall be replaced by ‘States’ and in the last recital, the words ‘HAVE DECIDED to create a EUROPEAN COMMUNITY and to this end have designated’ shall be replaced by ‘and to this end HAVE DESIGNATED’.
***
The Preamble to the Treaty establishing the European Community (TEC), to become the Treaty on the Functioning of the European Union (TFEU), is almost a museum exhibit of European integration (in the latest consolidated version of the TEC, OJ 29.12.2006 C 321 E/43).
The piety shown to the Preamble since the establishment of the European Economic Community (EEC) is illustrated by the fact that only the last substantial recital on knowledge and education has been added during 50 years.
The European Community has since enlarged to 27 members, but the six founding member states are still at the beginning of the Preamble.
The European Community dissolves into the European Union, but true to tradition, the IGC 2007 makes only the slightest editorial adaptations to the text.
***
After the necessary adaptations, the consolidated version of Preamble of the TFEU should begin like this in the Treaty of Lisbon version:
HIS MAJESTY THE KING OF THE BELGIANS, THE PRESIDENT OF THE FEDERAL REPUBLIC OF GERMANY, THE PRESIDENT OF THE FRENCH REPUBLIC, THE PRESIDENT OF THE ITALIAN REPUBLIC, HER ROYAL HIGHNESS THE GRAND DUCHESS OF LUXEMBOURG, HER MAJESTY THE QUEEN OF THE NETHERLANDS,
DETERMINED to lay the foundations of an ever closer union among the peoples of Europe,
RESOLVED to ensure the economic and social progress of their States by common action to eliminate the barriers which divide Europe,
AFFIRMING as the essential objective of their efforts the constant improvements of the living and working conditions of their peoples,
RECOGNISING that the removal of existing obstacles calls for concerted action in order to guarantee steady expansion, balanced trade and fair competition,
ANXIOUS to strengthen the unity of their economies and to ensure their harmonious development by reducing the differences existing between the various regions and the backwardness of the less favoured regions,
DESIRING to contribute, by means of a common commercial policy, to the progressive abolition of restrictions on international trade,
INTENDING to confirm the solidarity which binds Europe and the overseas countries and desiring to ensure the development of their prosperity, in accordance with the principles of the Charter of the United Nations,
RESOLVED by thus pooling their resources to preserve and strengthen peace and liberty, and calling upon the other peoples of Europe who share their ideal to join in their efforts,
DETERMINED to promote the development of the highest possible level of knowledge for their peoples through a wide access to education and through its continuous updating,
and to this end HAVE DESIGNATED as their Plenipotentiaries:
(List of plenipotentiaries not reproduced)
WHO, having exchanged their full powers, found in good and due form, have agreed as follows.
***
One reflection is that the objectives of European integration are almost timeless, starting with ‘an ever closer union among the peoples of Europe’, real solidarity believed to flow naturally from ever closer cooperation between their countries.
Another thought is that a museum can freeze life at a certain point in time, but in the street outside life continues to adapt and change. Without remembering the establishment of the European Union and its development through the Maastricht, Amsterdam and Nice treaties, the contributions by the Convention and the Constitutional Treaty, and now the Lisbon Treaty, the picture of the ultimate goals would be incomplete.
Experiment a little: Read one recital, then stop to think if you can subscribe to that or not. Then take on the next one. In the end, count how many ‘yes’ and how many ‘no’ answers you have.
***
Since the TFEU Preamble barely changes, it hardly gets a mention in the legislative documents I have looked at, but it would be a mistake to bypass the Preamble as if it lacked importance.
According to the Vienna Convention on the Law of Treaties, Article 31(2) the text of a treaty includes its preamble and annexes for the purpose of the interpretation.
Ralf Grahn
The first effort to present the general causes of and the historic reasons for European integration are found in the Preamble to the Treaty on the Functioning of the European Union (TFEU).
Even in its latest version the Preamble is almost frozen in time.
***
After the horizontal amendments, the intergovernmental conference (IGC 2007) advanced to specific amendments (OJ 17.12.2007 C 306/44):
B. Specific amendments
Preamble
10) In the second recital, the word ‘countries’ shall be replaced by ‘States’ and in the last recital, the words ‘HAVE DECIDED to create a EUROPEAN COMMUNITY and to this end have designated’ shall be replaced by ‘and to this end HAVE DESIGNATED’.
***
The Preamble to the Treaty establishing the European Community (TEC), to become the Treaty on the Functioning of the European Union (TFEU), is almost a museum exhibit of European integration (in the latest consolidated version of the TEC, OJ 29.12.2006 C 321 E/43).
The piety shown to the Preamble since the establishment of the European Economic Community (EEC) is illustrated by the fact that only the last substantial recital on knowledge and education has been added during 50 years.
The European Community has since enlarged to 27 members, but the six founding member states are still at the beginning of the Preamble.
The European Community dissolves into the European Union, but true to tradition, the IGC 2007 makes only the slightest editorial adaptations to the text.
***
After the necessary adaptations, the consolidated version of Preamble of the TFEU should begin like this in the Treaty of Lisbon version:
HIS MAJESTY THE KING OF THE BELGIANS, THE PRESIDENT OF THE FEDERAL REPUBLIC OF GERMANY, THE PRESIDENT OF THE FRENCH REPUBLIC, THE PRESIDENT OF THE ITALIAN REPUBLIC, HER ROYAL HIGHNESS THE GRAND DUCHESS OF LUXEMBOURG, HER MAJESTY THE QUEEN OF THE NETHERLANDS,
DETERMINED to lay the foundations of an ever closer union among the peoples of Europe,
RESOLVED to ensure the economic and social progress of their States by common action to eliminate the barriers which divide Europe,
AFFIRMING as the essential objective of their efforts the constant improvements of the living and working conditions of their peoples,
RECOGNISING that the removal of existing obstacles calls for concerted action in order to guarantee steady expansion, balanced trade and fair competition,
ANXIOUS to strengthen the unity of their economies and to ensure their harmonious development by reducing the differences existing between the various regions and the backwardness of the less favoured regions,
DESIRING to contribute, by means of a common commercial policy, to the progressive abolition of restrictions on international trade,
INTENDING to confirm the solidarity which binds Europe and the overseas countries and desiring to ensure the development of their prosperity, in accordance with the principles of the Charter of the United Nations,
RESOLVED by thus pooling their resources to preserve and strengthen peace and liberty, and calling upon the other peoples of Europe who share their ideal to join in their efforts,
DETERMINED to promote the development of the highest possible level of knowledge for their peoples through a wide access to education and through its continuous updating,
and to this end HAVE DESIGNATED as their Plenipotentiaries:
(List of plenipotentiaries not reproduced)
WHO, having exchanged their full powers, found in good and due form, have agreed as follows.
***
One reflection is that the objectives of European integration are almost timeless, starting with ‘an ever closer union among the peoples of Europe’, real solidarity believed to flow naturally from ever closer cooperation between their countries.
Another thought is that a museum can freeze life at a certain point in time, but in the street outside life continues to adapt and change. Without remembering the establishment of the European Union and its development through the Maastricht, Amsterdam and Nice treaties, the contributions by the Convention and the Constitutional Treaty, and now the Lisbon Treaty, the picture of the ultimate goals would be incomplete.
Experiment a little: Read one recital, then stop to think if you can subscribe to that or not. Then take on the next one. In the end, count how many ‘yes’ and how many ‘no’ answers you have.
***
Since the TFEU Preamble barely changes, it hardly gets a mention in the legislative documents I have looked at, but it would be a mistake to bypass the Preamble as if it lacked importance.
According to the Vienna Convention on the Law of Treaties, Article 31(2) the text of a treaty includes its preamble and annexes for the purpose of the interpretation.
Ralf Grahn
Wednesday, 13 February 2008
Consolidated Lisbon Treaty in Irish and Portuguese
I am happy to share with you the message I received from Peadar ó Broin, of the Institute of International and European Affairs (IIEA), in Dublin, Ireland, on two new language versions of the Treaty of Lisbon:
“Hi Ralf,
Just to let you know that the Irish Gaelic consolidated version of the Treaties will go up on the IIEA's website this Monday.
I noticed that there is now a version in Portuguese also, prepared by the Portuguese Ministry of Foreign Affairs: http://www.eu2007.pt/NR/rdonlyres/1D96311C-F90D-4E97-B355-DFEA0DD1ABEA/0/TLconsolidado.pdf
You can link to the text via the website for the Ministry of Foreign Affairs: http://www.mne.gov.pt/ and via the website for the Portuguese Presidency of 2007: http://www.eu2007.pt/UE/vPT/Presidencia_Conselho/TratadoLisboa.htm
Thanks also for your daily illuminations on the Treaty of Lisbon. I noticed you got high praise from the folks who work on EU Law Blog - congrats!
Best regards,
Peadar”
***
For the Irish version and just to remind you: The IIEA has already published the complete Lisbon Treaty, the TEU, the TFEU and the Annexes as well as the Protocols, in English.
Go to http://www.iiea.com
If the number of languages with consolidated versions was seven or eight (Hungarian attested but not verified), we now know of 9 or 10 official EU languages covered out of 23.
Then there are a few alternative consolidations in French and German that I will try to include next time I update the list (last published 8 February 2008).
Are there more consolidated versions we should know about?
Ralf Grahn
“Hi Ralf,
Just to let you know that the Irish Gaelic consolidated version of the Treaties will go up on the IIEA's website this Monday.
I noticed that there is now a version in Portuguese also, prepared by the Portuguese Ministry of Foreign Affairs: http://www.eu2007.pt/NR/rdonlyres/1D96311C-F90D-4E97-B355-DFEA0DD1ABEA/0/TLconsolidado.pdf
You can link to the text via the website for the Ministry of Foreign Affairs: http://www.mne.gov.pt/ and via the website for the Portuguese Presidency of 2007: http://www.eu2007.pt/UE/vPT/Presidencia_Conselho/TratadoLisboa.htm
Thanks also for your daily illuminations on the Treaty of Lisbon. I noticed you got high praise from the folks who work on EU Law Blog - congrats!
Best regards,
Peadar”
***
For the Irish version and just to remind you: The IIEA has already published the complete Lisbon Treaty, the TEU, the TFEU and the Annexes as well as the Protocols, in English.
Go to http://www.iiea.com
If the number of languages with consolidated versions was seven or eight (Hungarian attested but not verified), we now know of 9 or 10 official EU languages covered out of 23.
Then there are a few alternative consolidations in French and German that I will try to include next time I update the list (last published 8 February 2008).
Are there more consolidated versions we should know about?
Ralf Grahn
TFEU: Introduction
The European Convention never had the time to make a deep impact on the policy areas of the European Community, and in the intergovernmental conference (IGC 2004) the governments of the member states were obsessed by institutional questions, such as voting weights in the Council.
The IGC 2007 returned to the unfinished business left by the aborted ratification process of the Treaty establishing a Constitution for Europe.
Already in the context of the Convention and the Constitutional Treaty there were calls from pundits for an overhaul of the policies of the EU, and some echo from European leaders, but the national leaders seem to have been overwhelmed by the challenge to bring this stage of institutional reform to a close.
Thus, the main thrust of the Lisbon Treaty reform is institutional: to improve decision making within areas where the European Union (EU) and the European Community (EC) already exercise powers delegated by the member states.
If the Treaty of Lisbon survives the gauntlet of 27 national ratifications, the more mundane task of reforming the practical policies of the EU might raise enough of politicians’ interest to allow an overdue modernising exercise.
***
Article 2 of the Treaty of Lisbon contains the amendments to the Treaty establishing the European Community (TEC), which is renamed the Treaty on the Functioning of the European Union (TFEU).
Many of the changes to the TFEU are caused by the reordering of the treaties, with the Treaty on European Union (TEU) becoming home to the constitutional principles and objectives of the European Union and the fundamental provisions on the institutions. In addition, the continuing separateness of the common foreign and security policy (CFSP) and the common security and defence policy (CSDP) is given emphasis by housing them in the TEU.
Besides the reordering, renaming of various concepts leads to a fair amount of amendments throughout the TFEU, but most of the changes are rather technical. The Treaty of Lisbon is no profound reform of EU policies, although the area of freedom, security and justice is united under normal rules for the countries without derogations and opt-outs, and some additional tinkering and tidying up occur.
***
Why then bother to wade through the TFEU?
The treaties are the most important documents of the European Union. They lay the foundations for common action aiming to improve the security and prosperity of the citizens of the European Union. The rule of law means that every piece of legislation and every decision has to be based on the treaties.
The great questions of foreign and security policy may attract more media attention, but businesses and citizens are affected more directly by EU legislation and the everyday workings of the institutions.
Assuming that a reasonable amount of knowledge about the European Union is in the interest of private parties, then it is better to study the latest edition of our common rules. This leads us to the Treaty on the Functioning of the European Union (TFEU), as agreed on in the Lisbon Treaty. Even if the TFEU were to be hit by an accident never to enter into force, we would have gleaned some knowledge of the unreformed European Community (European Union).
***
Article 2 of the Treaty of Lisbon states that the Treaty establishing the European Community (TEC) shall be amended in accordance with the provisions of this Article (OJ 17.12.2007 C 306/41).
Following from the merger of the EC into the EU and the renewed structure of the treaties, the treaty is renamed the Treaty on the Functioning of the European Union (TFEU).
The IGC 2007 then sets out a number of horizontal amendments, leading to editorial or technical adaptations throughout the TFEU. I just highlight some of the new terminology we might want to get used to:
The ‘Union’ replaces the words ‘Community’ and ‘European Community’
‘The Treaties’ replaces ‘this Treaty’ and ‘the present Treaty’
The ‘ordinary legislative procedure’ replaces the procedure referred to in Article 251
The ‘internal market’ replaces the ‘common market’
‘Euro’ replaces ‘ecu’
‘Member States whose currency is the euro’ replaces ‘Member State without derogation’
The ‘European Central Bank’ replaces the abbreviation ‘ECB’
‘Economic and Financial Committee’ replaces the Committee provided for in Article 114
‘Specialised court’ replaces ‘judicial panel’
‘Acting unanimously in accordance with a special legislative procedure’ is inserted where the existing treaty says ‘acting unanimously on a proposal from the Commission’
‘Acting by a simple majority’ is inserted into seven Articles
In two instances ‘obtaining the consent of the European Parliament’ replaces mere consultation
The ‘Court of Justice of the European Union’ becomes the official name, but sometimes the short form ‘Court’ is used
***
To these horizontal amendments of terminology are added the amendments concerning numbering and renumbering of the treaties, compounded by the less than reader-friendly drafting of the treaties themselves.
I salute the silent heroes who have produced the few consolidated language versions of the Treaty of Lisbon we already have. I wish that the versions still missing are produced and published soon. Brochures and web page summaries are important for the citizens of the EU, but they are far from enough.
(For the existing consolidations, as far as I know, see my latest compilation of sources, the 8 February 2008 posting ‘Lisbon Treaty: Consolidated language versions’.)
Ralf Grahn
P.S. Embarking on the long journey to explore our fundamental common rules as rendered by the Treaty on the Functioning of the European Union, I want to repeat my plea for information on the law and politics of the Lisbon reform treaty.
I am most grateful, if you want to share your knowledge on the Treaty of Lisbon with me and other EU citizens: consolidated versions as well as books and other resources, such as official documents from the member states’ governments and parliaments, popular presentations and scholarly research literature, plus information on the ratification processes.
The IGC 2007 returned to the unfinished business left by the aborted ratification process of the Treaty establishing a Constitution for Europe.
Already in the context of the Convention and the Constitutional Treaty there were calls from pundits for an overhaul of the policies of the EU, and some echo from European leaders, but the national leaders seem to have been overwhelmed by the challenge to bring this stage of institutional reform to a close.
Thus, the main thrust of the Lisbon Treaty reform is institutional: to improve decision making within areas where the European Union (EU) and the European Community (EC) already exercise powers delegated by the member states.
If the Treaty of Lisbon survives the gauntlet of 27 national ratifications, the more mundane task of reforming the practical policies of the EU might raise enough of politicians’ interest to allow an overdue modernising exercise.
***
Article 2 of the Treaty of Lisbon contains the amendments to the Treaty establishing the European Community (TEC), which is renamed the Treaty on the Functioning of the European Union (TFEU).
Many of the changes to the TFEU are caused by the reordering of the treaties, with the Treaty on European Union (TEU) becoming home to the constitutional principles and objectives of the European Union and the fundamental provisions on the institutions. In addition, the continuing separateness of the common foreign and security policy (CFSP) and the common security and defence policy (CSDP) is given emphasis by housing them in the TEU.
Besides the reordering, renaming of various concepts leads to a fair amount of amendments throughout the TFEU, but most of the changes are rather technical. The Treaty of Lisbon is no profound reform of EU policies, although the area of freedom, security and justice is united under normal rules for the countries without derogations and opt-outs, and some additional tinkering and tidying up occur.
***
Why then bother to wade through the TFEU?
The treaties are the most important documents of the European Union. They lay the foundations for common action aiming to improve the security and prosperity of the citizens of the European Union. The rule of law means that every piece of legislation and every decision has to be based on the treaties.
The great questions of foreign and security policy may attract more media attention, but businesses and citizens are affected more directly by EU legislation and the everyday workings of the institutions.
Assuming that a reasonable amount of knowledge about the European Union is in the interest of private parties, then it is better to study the latest edition of our common rules. This leads us to the Treaty on the Functioning of the European Union (TFEU), as agreed on in the Lisbon Treaty. Even if the TFEU were to be hit by an accident never to enter into force, we would have gleaned some knowledge of the unreformed European Community (European Union).
***
Article 2 of the Treaty of Lisbon states that the Treaty establishing the European Community (TEC) shall be amended in accordance with the provisions of this Article (OJ 17.12.2007 C 306/41).
Following from the merger of the EC into the EU and the renewed structure of the treaties, the treaty is renamed the Treaty on the Functioning of the European Union (TFEU).
The IGC 2007 then sets out a number of horizontal amendments, leading to editorial or technical adaptations throughout the TFEU. I just highlight some of the new terminology we might want to get used to:
The ‘Union’ replaces the words ‘Community’ and ‘European Community’
‘The Treaties’ replaces ‘this Treaty’ and ‘the present Treaty’
The ‘ordinary legislative procedure’ replaces the procedure referred to in Article 251
The ‘internal market’ replaces the ‘common market’
‘Euro’ replaces ‘ecu’
‘Member States whose currency is the euro’ replaces ‘Member State without derogation’
The ‘European Central Bank’ replaces the abbreviation ‘ECB’
‘Economic and Financial Committee’ replaces the Committee provided for in Article 114
‘Specialised court’ replaces ‘judicial panel’
‘Acting unanimously in accordance with a special legislative procedure’ is inserted where the existing treaty says ‘acting unanimously on a proposal from the Commission’
‘Acting by a simple majority’ is inserted into seven Articles
In two instances ‘obtaining the consent of the European Parliament’ replaces mere consultation
The ‘Court of Justice of the European Union’ becomes the official name, but sometimes the short form ‘Court’ is used
***
To these horizontal amendments of terminology are added the amendments concerning numbering and renumbering of the treaties, compounded by the less than reader-friendly drafting of the treaties themselves.
I salute the silent heroes who have produced the few consolidated language versions of the Treaty of Lisbon we already have. I wish that the versions still missing are produced and published soon. Brochures and web page summaries are important for the citizens of the EU, but they are far from enough.
(For the existing consolidations, as far as I know, see my latest compilation of sources, the 8 February 2008 posting ‘Lisbon Treaty: Consolidated language versions’.)
Ralf Grahn
P.S. Embarking on the long journey to explore our fundamental common rules as rendered by the Treaty on the Functioning of the European Union, I want to repeat my plea for information on the law and politics of the Lisbon reform treaty.
I am most grateful, if you want to share your knowledge on the Treaty of Lisbon with me and other EU citizens: consolidated versions as well as books and other resources, such as official documents from the member states’ governments and parliaments, popular presentations and scholarly research literature, plus information on the ratification processes.
Tuesday, 12 February 2008
Comprendre le Traité de Lisbonne
Jean-Luc Sauron was the first or one of the first to publish a book on the Treaty of Lisbon. The book, in French, is divided into two main parts.
First, there is a presentation and explanation of the reform process and the main provisions of the Reform Treaty, especially the new features. These 140 pages seem well adapted for interested citizens and students, who wish to find a suitable introduction.
Second, the rest of the book (pages 141 – 351) contains consolidated versions of the amended Treaty on European Union, the Treaty on the Functioning of the European Union, the Charter of Fundamental Rights and the Explanations relating to it as well as a modest Index.
In principle, the Treaty texts are based on a version from 30 October 2007, but footnotes take later modifications into account.
The book contains a Preface written by the well known journalist and blogger Jean Quatremer.
Ralf Grahn
See:
Jean-Luc Sauron: Comprendre le Traité de Lisbonne – Texte consolidé intégral des traités – Explications et commentaires ; Gualino éditeur, Paris 2008 ; 351 p. (Prix 20 €)
First, there is a presentation and explanation of the reform process and the main provisions of the Reform Treaty, especially the new features. These 140 pages seem well adapted for interested citizens and students, who wish to find a suitable introduction.
Second, the rest of the book (pages 141 – 351) contains consolidated versions of the amended Treaty on European Union, the Treaty on the Functioning of the European Union, the Charter of Fundamental Rights and the Explanations relating to it as well as a modest Index.
In principle, the Treaty texts are based on a version from 30 October 2007, but footnotes take later modifications into account.
The book contains a Preface written by the well known journalist and blogger Jean Quatremer.
Ralf Grahn
See:
Jean-Luc Sauron: Comprendre le Traité de Lisbonne – Texte consolidé intégral des traités – Explications et commentaires ; Gualino éditeur, Paris 2008 ; 351 p. (Prix 20 €)
EU Treaty of Lisbon: Official languages
The expansion of the European Communities and later the European Union are reflected in the growing number of Treaty languages, although the Treaty of the first community, the European Coal and Steel Community (ECSC), was drafted in an official version only in French, still the chosen language of European diplomacy during the first half of the 20th century.
The Treaties of Rome, on the European Economic Community (EEC) and the European Atomic Energy Community (EAEC or Euratom), were drawn up in the four languages of the six founding members: Dutch, French, German and Italian.
The successive Accession Treaties have been concluded in new languages, leading to corresponding adaptations of the Treaty languages.
The Lisbon Treaty reflects the linguistic diversity of the European Union, and it adapts the Treaties to take account of 23 equally authentic Treaty languages. In addition, the reform treaty encourages official translations by the member states of the Treaties into other official languages, i.e. regional and minority languages.
***
Speaking about languages: You can use natural, human language, or you can form part of an august body such as an intergovernmental conference and distance yourself from humanity. The IGC 2007 communicated its agreement like this in Article 53 of the Treaty on European Union (TEU) (OJ 17.12.2007 C 306/40):
61) Article 53 shall be amended as follows:
(a) the first paragraph shall be numbered 1, the languages listed in the second paragraph of the current Article 53 of the Treaty on European Union shall be added to the list in this paragraph and the second paragraph shall be deleted;
(b) the following new paragraph 2 shall be added:
‘2. This Treaty may also be translated into any other languages as determined by Member States among those which, in accordance with their constitutional order, enjoy official status in all or part of their territory. A certified copy of such translations shall be provided by the Member States concerned to be deposited in the archives of the Council.’.
***
The language regime of the European Union is hardly a secret, or a novelty, so why not let a reader of the Treaty of Lisbon understand the contents at one go?
RESOLVED to speak a little closer to the citizen, I
HAVE DECIDED to present the readable and consolidated text of Article 53 TEU here:
Article 53
1. This Treaty, drawn up in a single original in the Bulgarian, Czech, Danish, Dutch, English, Estonian, Finnish, French, German, Greek, Hungarian, Irish, Italian, Latvian, Lithuanian, Maltese, Polish, Portuguese, Romanian, Slovak, Slovenian, Spanish and Swedish languages, the texts in each of these languages being equally authentic, shall be deposited in the archives of the Government of the Italian Republic, which will transmit a certified copy to each of the governments of the other signatory States.
2. This Treaty may also be translated into any other languages as determined by Member States among those which, in accordance with their constitutional order, enjoy official status in all or part of their territory. A certified copy of such translations shall be provided by the Member States concerned to be deposited in the archives of the Council.
IN WITNESS WHEREOF the undersigned Plenipotentiaries have signed this Treaty.
***
The corresponding provision in the Treaty establishing the European Community (TEC), to be renamed the Treaty on the Functioning of the European Union (TFEU), is Article 314. The original Treaty languages are mentioned in the first paragraph, the languages added by the Accession Treaties in the second paragraph and the latest additions, Bulgarian and Romanian, referred to in the Appendix, when we look at the latest consolidated version of the current TEC, in OJ 29.12.2006 C 321 E/180.
The unified draft Treaty establishing a Constitution for Europe naturally needed only one provision on the then 21 languages, Article IV-10 Languages, to be adjusted in accordance with the Act of Accession (OJ 18.7.2003 C 169/93).
In the Treaty establishing a Constitution for Europe Article IV-448 Authentic texts and translations included the same 21 languages, in a numbered paragraph 1, and added a paragraph 2 on the translation of the Treaty into other official languages of the member states (OJ 16.12.2004 C 310/191).
The other novelty of the Constitutional Treaty was Declaration number 29 on linguistic diversity.
Looking at Article 53 TEU and Article 314 TFEU, to be adapted by the Treaty of Lisbon, we can see that the novelties of the Constitutional Treaty have been adopted, adding Bulgarian and Romanian.
***
The Declaration, too, has been adopted, with the number 16 (OJ 17.12.2007 C 306/254):
16. Declaration on Article 53(2) of the Treaty on European Union
The Conference considers that the possibility of producing translations of the Treaties in the languages mentioned in Article 53(2) contributes to fulfilling the objective of respecting the Union's rich cultural and linguistic diversity as set forth in the fourth subparagraph of Article 2(3). In this context, the Conference confirms the attachment of the Union to the cultural diversity of Europe and the special attention it will continue to pay to these and other languages.
The Conference recommends that those Member States wishing to avail themselves of the possibility
recognised in Article 53(2) communicate to the Council, within six months from the date of the signature of the Treaty of Lisbon, the language or languages into which translations of the Treaties will be made.
***
To complete the presentation of authentic Treaty languages, we turn our attention to Article 7 of the intergovernmental conference (IGC 2007), which states that the Treaty of Lisbon itself has been drawn up in the 23 languages mentioned above (OJ 17.12.2007 C 306/134).
***
The Treaty languages have both symbolic and practical importance, but the everyday use of these languages is crucial for the citizens of the European Union. The existing Article 290 TEC offers us the barest outline:
Article 290 TEC
The rules governing the languages of the institutions of the Community shall, without prejudice to the provisions contained in the Statute of the Court of Justice, be determined by the Council, acting unanimously.
The IGC 2007 adds the words ‘by means of regulations’ and adapts the names of the institutions, leading to the following new wording in the Lisbon Treaty:
Article 290 TFEU
The rules governing the languages of the institutions of the Union shall, without prejudice to the provisions contained in the Statute of the Court of Justice of the European Union, be determined by the Council, acting unanimously by the means of regulations.
***
Here are some hints for further reading:
For the official language regime of the EU, go to Regulation No 1 determining the languages to be used by the European Economic Community (originally OJ L 17, 6.10.1958, p. 385, but with several amendments and therefore best read in the consolidated version):
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CONSLEG:1958R0001:20070101:EN:PDF
Wikipedia offers an overview (in need of some updating) in the article Languages of the European Union:
http://en.wikipedia.org/wiki/Languages_of_the_European_Union
***
The European Union is unique among international organisations in involving not only states but directly applicable legislation concerning private firms and individuals, as well as offering incipient democratic rules of governance and citizenship. In my view, the language regime of the European Union has to reflect the linguistic diversity of the EU and its citizens, including the novelties introduced by the Lisbon Treaty to accommodate the regional and minority languages.
Ralf Grahn
The Treaties of Rome, on the European Economic Community (EEC) and the European Atomic Energy Community (EAEC or Euratom), were drawn up in the four languages of the six founding members: Dutch, French, German and Italian.
The successive Accession Treaties have been concluded in new languages, leading to corresponding adaptations of the Treaty languages.
The Lisbon Treaty reflects the linguistic diversity of the European Union, and it adapts the Treaties to take account of 23 equally authentic Treaty languages. In addition, the reform treaty encourages official translations by the member states of the Treaties into other official languages, i.e. regional and minority languages.
***
Speaking about languages: You can use natural, human language, or you can form part of an august body such as an intergovernmental conference and distance yourself from humanity. The IGC 2007 communicated its agreement like this in Article 53 of the Treaty on European Union (TEU) (OJ 17.12.2007 C 306/40):
61) Article 53 shall be amended as follows:
(a) the first paragraph shall be numbered 1, the languages listed in the second paragraph of the current Article 53 of the Treaty on European Union shall be added to the list in this paragraph and the second paragraph shall be deleted;
(b) the following new paragraph 2 shall be added:
‘2. This Treaty may also be translated into any other languages as determined by Member States among those which, in accordance with their constitutional order, enjoy official status in all or part of their territory. A certified copy of such translations shall be provided by the Member States concerned to be deposited in the archives of the Council.’.
***
The language regime of the European Union is hardly a secret, or a novelty, so why not let a reader of the Treaty of Lisbon understand the contents at one go?
RESOLVED to speak a little closer to the citizen, I
HAVE DECIDED to present the readable and consolidated text of Article 53 TEU here:
Article 53
1. This Treaty, drawn up in a single original in the Bulgarian, Czech, Danish, Dutch, English, Estonian, Finnish, French, German, Greek, Hungarian, Irish, Italian, Latvian, Lithuanian, Maltese, Polish, Portuguese, Romanian, Slovak, Slovenian, Spanish and Swedish languages, the texts in each of these languages being equally authentic, shall be deposited in the archives of the Government of the Italian Republic, which will transmit a certified copy to each of the governments of the other signatory States.
2. This Treaty may also be translated into any other languages as determined by Member States among those which, in accordance with their constitutional order, enjoy official status in all or part of their territory. A certified copy of such translations shall be provided by the Member States concerned to be deposited in the archives of the Council.
IN WITNESS WHEREOF the undersigned Plenipotentiaries have signed this Treaty.
***
The corresponding provision in the Treaty establishing the European Community (TEC), to be renamed the Treaty on the Functioning of the European Union (TFEU), is Article 314. The original Treaty languages are mentioned in the first paragraph, the languages added by the Accession Treaties in the second paragraph and the latest additions, Bulgarian and Romanian, referred to in the Appendix, when we look at the latest consolidated version of the current TEC, in OJ 29.12.2006 C 321 E/180.
The unified draft Treaty establishing a Constitution for Europe naturally needed only one provision on the then 21 languages, Article IV-10 Languages, to be adjusted in accordance with the Act of Accession (OJ 18.7.2003 C 169/93).
In the Treaty establishing a Constitution for Europe Article IV-448 Authentic texts and translations included the same 21 languages, in a numbered paragraph 1, and added a paragraph 2 on the translation of the Treaty into other official languages of the member states (OJ 16.12.2004 C 310/191).
The other novelty of the Constitutional Treaty was Declaration number 29 on linguistic diversity.
Looking at Article 53 TEU and Article 314 TFEU, to be adapted by the Treaty of Lisbon, we can see that the novelties of the Constitutional Treaty have been adopted, adding Bulgarian and Romanian.
***
The Declaration, too, has been adopted, with the number 16 (OJ 17.12.2007 C 306/254):
16. Declaration on Article 53(2) of the Treaty on European Union
The Conference considers that the possibility of producing translations of the Treaties in the languages mentioned in Article 53(2) contributes to fulfilling the objective of respecting the Union's rich cultural and linguistic diversity as set forth in the fourth subparagraph of Article 2(3). In this context, the Conference confirms the attachment of the Union to the cultural diversity of Europe and the special attention it will continue to pay to these and other languages.
The Conference recommends that those Member States wishing to avail themselves of the possibility
recognised in Article 53(2) communicate to the Council, within six months from the date of the signature of the Treaty of Lisbon, the language or languages into which translations of the Treaties will be made.
***
To complete the presentation of authentic Treaty languages, we turn our attention to Article 7 of the intergovernmental conference (IGC 2007), which states that the Treaty of Lisbon itself has been drawn up in the 23 languages mentioned above (OJ 17.12.2007 C 306/134).
***
The Treaty languages have both symbolic and practical importance, but the everyday use of these languages is crucial for the citizens of the European Union. The existing Article 290 TEC offers us the barest outline:
Article 290 TEC
The rules governing the languages of the institutions of the Community shall, without prejudice to the provisions contained in the Statute of the Court of Justice, be determined by the Council, acting unanimously.
The IGC 2007 adds the words ‘by means of regulations’ and adapts the names of the institutions, leading to the following new wording in the Lisbon Treaty:
Article 290 TFEU
The rules governing the languages of the institutions of the Union shall, without prejudice to the provisions contained in the Statute of the Court of Justice of the European Union, be determined by the Council, acting unanimously by the means of regulations.
***
Here are some hints for further reading:
For the official language regime of the EU, go to Regulation No 1 determining the languages to be used by the European Economic Community (originally OJ L 17, 6.10.1958, p. 385, but with several amendments and therefore best read in the consolidated version):
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CONSLEG:1958R0001:20070101:EN:PDF
Wikipedia offers an overview (in need of some updating) in the article Languages of the European Union:
http://en.wikipedia.org/wiki/Languages_of_the_European_Union
***
The European Union is unique among international organisations in involving not only states but directly applicable legislation concerning private firms and individuals, as well as offering incipient democratic rules of governance and citizenship. In my view, the language regime of the European Union has to reflect the linguistic diversity of the EU and its citizens, including the novelties introduced by the Lisbon Treaty to accommodate the regional and minority languages.
Ralf Grahn
Monday, 11 February 2008
EU Treaty of Lisbon: Ratification and entry into force
Reforming the European Union has become a ‘mission impossible’. First 27 governments with veto powers have to reach unanimous agreement. Then the Treaty signed has to run the gauntlet of just as many ratifications. Even one failure, and the process returns to square one.
How could such a house of cards become a Superstate in anybody’s mind?
***
The current Treaty on European Union (TEU) Article 52 has the following to offer on the crucial question of entry into force (to be found in the latest consolidated version of the Treaties in OJ 29.12.2006 C 321 E/35):
Article 52
1. This Treaty shall be ratified by the High Contracting Parties in accordance with their respective constitutional requirements. The instruments of ratification shall be deposited with the Government of the Italian Republic.
2. This Treaty shall enter into force on 1 January 1993, provided that all the Instruments of ratification have been deposited, or, failing that, on the first day of the month following the deposit of the Instrument of ratification by the last signatory State to take this step.
***
In the existing Treaty establishing the European Community (TEC), under the headline Final provisions, ratification and entry into force are presented like this in Article 313 (OJ 29.12.2006 C 321 E/180):
Final provisions
Article 313
This Treaty shall be ratified by the High Contracting Parties in accordance with their respective constitutional requirements. The Instruments of ratification shall be deposited with the Government of the Italian Republic.
This Treaty shall enter into force on the first day of the month following the deposit of the Instrument of ratification by the last signatory State to take this step. If, however, such deposit is made less than 15 days before the beginning of the following month, this Treaty shall not enter into force until the first day of the second month after the date of such deposit.
***
In the new and unified draft Treaty establishing a Constitution for Europe, the European Convention needed only one clause, Article IV-8 Adoption, ratification and entry into force of the Treaty establishing the Constitution (OJ 18.7.2003 C 169/92).
In the Treaty establishing a Constitution for Europe the corresponding provision was Article IV-447 Ratification and entry into force. There the governments of the member states implied their intention to promote the ratification of the Treaty according to the internal constitutional requirements of each country, and to communicate the occurrence by depositing the instruments of ratification.
They agreed on a target date of 1 November 2006, two years after signing, for the entry into force of the Treaty. Failing that the Treaty would have entered into force on the first day of the second month following the deposit of the ratification instrument of the last signatory state.
The constitutional requirements and vagaries of politics being what they are, the intergovernmental conference 2004 understood that ratification by 25 member states is prone to accidents, and one mishap is enough to wreck the process. The heads of state or government agreed on a Declaration (number 30) on the ratification of the Treaty establishing a Constitution for Europe.
The IGC noted that “if, two years after the signature of the Treaty establishing a Constitution for Europe, four fifths of the Member States have ratified it and one or more Member States have encountered difficulties in proceeding with ratification, the matter will be referred to the European Council”.
In the end, 18 member states or two thirds gave the Constitutional Treaty their approval, but some governments did not even start the ratification processes after the negative referendums if France in May and the Netherlands in June 2005. Neither country had a constitutional requirement to arrange a referendum, and neither referendum seems to have been decided on the true merits of the Treaty.
***
The IGC 2007 leaves Article 52 TEU untouched and is content to delete the heading Final provisions before Article 313 TEC, the Treaty renamed the Treaty on the Functioning of the European Union (TFEU).
This means that Article 52 TEU is left pointing at 1 January 1993 and Article 313 TFEU gives no exact date for the entry into force.
The reason for this is that these Articles are reproduced in their original form, Article 52 TEU as it was written into the Treaty of Maastricht. After the ratification difficulties encountered, the original Treaty on European Union did not enter into force on 1 January, but 1 November 1993.
As the above, Article 313 TEC and TFEU makes Italy the depository of the ratification instruments. This is an act of deference towards the original signing and depositing of the Treaties of Rome, on the European Economic Community (EEC) and the European Atomic Energy Community (EAEC or Euratom), in 1957.
***
Since the TEU and the TFEU do not tell us when the amendments introduced by the Treaty of Lisbon are supposed to enter into force, we have to look elsewhere for the answer, which is found under Article 6 of the IGC 2007 (OJ 17.12.2007 C 306/134):
Article 6
1. This Treaty shall be ratified by the High Contracting Parties in accordance with their respective constitutional requirements. The instruments of ratification shall be deposited with the Government of the Italian Republic.
2. This Treaty shall enter into force on 1 January 2009, provided that all the instruments of ratification have been deposited, or, failing that, on the first day of the month following the deposit of the instrument of ratification by the last signatory State to take this step.
***
The Lisbon Treaty is still firmly in the realm of treaties, as understood by Article 2(1)(a) of the Vienna Convention on the Law of Treaties: ‘an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation’.
Each member state has its own requirements for the ratification of treaties. Usually approval by parliament is needed.
The challenge was first to find unanimous agreement between 27 member state governments, a daunting enough task. Now, every government needs to secure ratification if the reform treaty is to enter into force on the target date 1 January 2009 or failing that, later.
In a European Union with 27 and possibly more members, reforming the ground rules has become an almost insurmountable challenge. To survive the gauntlet of ratifications, a new or amending treaty needs not only the determination of each government of the day and parliamentary approval, but also a fair amount of sheer luck: the absence of a political crisis and often the support of a broad majority (in many cases with support from the opposition) without the treaty being taken hostage for internal, unconnected reasons.
Ultimately this problem can be solved only by progressing to a democratic real Constitution based on the citizens instead of the states.
Five out of 27 member states have ratified the Treaty of Lisbon: France, Hungary, Malta, Romania and Slovenia.
With 22 countries to go, the steeplechase continues. Until the ratification processes succeed, we are stuck with the Treaty of Nice.
Ralf Grahn
How could such a house of cards become a Superstate in anybody’s mind?
***
The current Treaty on European Union (TEU) Article 52 has the following to offer on the crucial question of entry into force (to be found in the latest consolidated version of the Treaties in OJ 29.12.2006 C 321 E/35):
Article 52
1. This Treaty shall be ratified by the High Contracting Parties in accordance with their respective constitutional requirements. The instruments of ratification shall be deposited with the Government of the Italian Republic.
2. This Treaty shall enter into force on 1 January 1993, provided that all the Instruments of ratification have been deposited, or, failing that, on the first day of the month following the deposit of the Instrument of ratification by the last signatory State to take this step.
***
In the existing Treaty establishing the European Community (TEC), under the headline Final provisions, ratification and entry into force are presented like this in Article 313 (OJ 29.12.2006 C 321 E/180):
Final provisions
Article 313
This Treaty shall be ratified by the High Contracting Parties in accordance with their respective constitutional requirements. The Instruments of ratification shall be deposited with the Government of the Italian Republic.
This Treaty shall enter into force on the first day of the month following the deposit of the Instrument of ratification by the last signatory State to take this step. If, however, such deposit is made less than 15 days before the beginning of the following month, this Treaty shall not enter into force until the first day of the second month after the date of such deposit.
***
In the new and unified draft Treaty establishing a Constitution for Europe, the European Convention needed only one clause, Article IV-8 Adoption, ratification and entry into force of the Treaty establishing the Constitution (OJ 18.7.2003 C 169/92).
In the Treaty establishing a Constitution for Europe the corresponding provision was Article IV-447 Ratification and entry into force. There the governments of the member states implied their intention to promote the ratification of the Treaty according to the internal constitutional requirements of each country, and to communicate the occurrence by depositing the instruments of ratification.
They agreed on a target date of 1 November 2006, two years after signing, for the entry into force of the Treaty. Failing that the Treaty would have entered into force on the first day of the second month following the deposit of the ratification instrument of the last signatory state.
The constitutional requirements and vagaries of politics being what they are, the intergovernmental conference 2004 understood that ratification by 25 member states is prone to accidents, and one mishap is enough to wreck the process. The heads of state or government agreed on a Declaration (number 30) on the ratification of the Treaty establishing a Constitution for Europe.
The IGC noted that “if, two years after the signature of the Treaty establishing a Constitution for Europe, four fifths of the Member States have ratified it and one or more Member States have encountered difficulties in proceeding with ratification, the matter will be referred to the European Council”.
In the end, 18 member states or two thirds gave the Constitutional Treaty their approval, but some governments did not even start the ratification processes after the negative referendums if France in May and the Netherlands in June 2005. Neither country had a constitutional requirement to arrange a referendum, and neither referendum seems to have been decided on the true merits of the Treaty.
***
The IGC 2007 leaves Article 52 TEU untouched and is content to delete the heading Final provisions before Article 313 TEC, the Treaty renamed the Treaty on the Functioning of the European Union (TFEU).
This means that Article 52 TEU is left pointing at 1 January 1993 and Article 313 TFEU gives no exact date for the entry into force.
The reason for this is that these Articles are reproduced in their original form, Article 52 TEU as it was written into the Treaty of Maastricht. After the ratification difficulties encountered, the original Treaty on European Union did not enter into force on 1 January, but 1 November 1993.
As the above, Article 313 TEC and TFEU makes Italy the depository of the ratification instruments. This is an act of deference towards the original signing and depositing of the Treaties of Rome, on the European Economic Community (EEC) and the European Atomic Energy Community (EAEC or Euratom), in 1957.
***
Since the TEU and the TFEU do not tell us when the amendments introduced by the Treaty of Lisbon are supposed to enter into force, we have to look elsewhere for the answer, which is found under Article 6 of the IGC 2007 (OJ 17.12.2007 C 306/134):
Article 6
1. This Treaty shall be ratified by the High Contracting Parties in accordance with their respective constitutional requirements. The instruments of ratification shall be deposited with the Government of the Italian Republic.
2. This Treaty shall enter into force on 1 January 2009, provided that all the instruments of ratification have been deposited, or, failing that, on the first day of the month following the deposit of the instrument of ratification by the last signatory State to take this step.
***
The Lisbon Treaty is still firmly in the realm of treaties, as understood by Article 2(1)(a) of the Vienna Convention on the Law of Treaties: ‘an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation’.
Each member state has its own requirements for the ratification of treaties. Usually approval by parliament is needed.
The challenge was first to find unanimous agreement between 27 member state governments, a daunting enough task. Now, every government needs to secure ratification if the reform treaty is to enter into force on the target date 1 January 2009 or failing that, later.
In a European Union with 27 and possibly more members, reforming the ground rules has become an almost insurmountable challenge. To survive the gauntlet of ratifications, a new or amending treaty needs not only the determination of each government of the day and parliamentary approval, but also a fair amount of sheer luck: the absence of a political crisis and often the support of a broad majority (in many cases with support from the opposition) without the treaty being taken hostage for internal, unconnected reasons.
Ultimately this problem can be solved only by progressing to a democratic real Constitution based on the citizens instead of the states.
Five out of 27 member states have ratified the Treaty of Lisbon: France, Hungary, Malta, Romania and Slovenia.
With 22 countries to go, the steeplechase continues. Until the ratification processes succeed, we are stuck with the Treaty of Nice.
Ralf Grahn
Sunday, 10 February 2008
President of the European Council
Before rushing ahead to wreck one undeclared candidacy or advance another for the Presidency of the European Council, some principled discussion should take place regarding the framework, the procedures and the qualifications.
***
Let us start with the institutional setting for this post, as agreed in the Treaty of Lisbon. The intergovernmental conference inserted a new Article 9b into the Treaty on European Union (TEU), which offers the framework (Official Journal 17.12.2007 C 306/16-17):
Article 9 B
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.
***
The Lisbon Treaty forms the basis, but the details clearly need preparation and implementation. Preparatory discussions are ongoing, but the political decisions concerning the “job description”, administrative and other resources, as well as the election itself are expected to be made during the second half of this year, during the French Council Presidency.
This brings us to the procedure, which would be more important to discuss than the personalities at this stage.
The all too probable worst case scenario is that an electoral college of 27 heads of state or government deal behind closed doors and that the citizens are only offered the result.Even the conclave of cardinals is larger, though the procedures look pretty equal at the present stage. To leave the citizens of the European Union waiting for a puff or two of white smoke – after customary leaks, rumours and speculation – would be a sad state of affairs, irrespective of the outcome.
The European Council has the powers, if the will is there, to arrange open nominations, public debate and transparent decision making, with support and reasons given openly.
Let us apply pressure, in case our leaders do not automatically seize this opportunity to reconnect the citizens with the European project.
In the short run, let us not forget that most of the above applies to the empowered High Representative/Vice-President, too.
In the long run, the “President of Europe” should be given a clear democratic mandate, be it as the chief of a politically accountable executive or as a more symbolic figure-head.
***
The third issue is to look at the qualifications needed for the job. Different viewpoints are not only necessary, they are highly desirable. My own main substantial criteria would be weighted towards scrutinising the candidate and his/her country with the following in mind:
* Ratification of the Lisbon Treaty and conduct during the reform process.
* The Eurozone
* The Schengen area
* The Charter of Fundamental Rights
* Commitment to the CFSP and CSDP based on dual EU and NATO membership
* Commitment to a future democratic European Union
***
Finally there come the personal qualities of the candidates, like trustworthiness, vision, leadership, communication and negotiation skills.
They can be evaluated and discussed by the leaders and the citizens during the campaign, when we know who are running and get a chance to see them in action.
Ralf Grahn
***
Let us start with the institutional setting for this post, as agreed in the Treaty of Lisbon. The intergovernmental conference inserted a new Article 9b into the Treaty on European Union (TEU), which offers the framework (Official Journal 17.12.2007 C 306/16-17):
Article 9 B
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.
***
The Lisbon Treaty forms the basis, but the details clearly need preparation and implementation. Preparatory discussions are ongoing, but the political decisions concerning the “job description”, administrative and other resources, as well as the election itself are expected to be made during the second half of this year, during the French Council Presidency.
This brings us to the procedure, which would be more important to discuss than the personalities at this stage.
The all too probable worst case scenario is that an electoral college of 27 heads of state or government deal behind closed doors and that the citizens are only offered the result.Even the conclave of cardinals is larger, though the procedures look pretty equal at the present stage. To leave the citizens of the European Union waiting for a puff or two of white smoke – after customary leaks, rumours and speculation – would be a sad state of affairs, irrespective of the outcome.
The European Council has the powers, if the will is there, to arrange open nominations, public debate and transparent decision making, with support and reasons given openly.
Let us apply pressure, in case our leaders do not automatically seize this opportunity to reconnect the citizens with the European project.
In the short run, let us not forget that most of the above applies to the empowered High Representative/Vice-President, too.
In the long run, the “President of Europe” should be given a clear democratic mandate, be it as the chief of a politically accountable executive or as a more symbolic figure-head.
***
The third issue is to look at the qualifications needed for the job. Different viewpoints are not only necessary, they are highly desirable. My own main substantial criteria would be weighted towards scrutinising the candidate and his/her country with the following in mind:
* Ratification of the Lisbon Treaty and conduct during the reform process.
* The Eurozone
* The Schengen area
* The Charter of Fundamental Rights
* Commitment to the CFSP and CSDP based on dual EU and NATO membership
* Commitment to a future democratic European Union
***
Finally there come the personal qualities of the candidates, like trustworthiness, vision, leadership, communication and negotiation skills.
They can be evaluated and discussed by the leaders and the citizens during the campaign, when we know who are running and get a chance to see them in action.
Ralf Grahn
EU Treaty of Lisbon: Unlimited duration
The European Coal and Steel Community (ECSC) was established for a period of 50 years, by the Treaty of Paris in 1951. The ECSC Treaty entered into force the following year and expired in 2002.
All the other communities have been intended to be permanent. The European Economic Community (EEC), the European Atomic Energy Community (EAEC or Euratom) and the European Union (EU), as well as the amending Treaties, have been concluded for an unlimited period.
***
The current provisions on unlimited duration are found in the Treaty on European Union (TEU) Article 51 and the Treaty establishing the European Community (TEC), to become the Treaty on the Functioning of the European Union (TFEU), Article 312. (For the latest consolidated version of the TEU and the TEC, go to OJ 29.12.2006 C 321/35 and 180 respectively.)
Since the European Convention proposed a unified Treaty for the European Union, it had only one corresponding provision, Article IV-9 Duration, of the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/92).
The same applied to the Treaty establishing a Constitution for Europe, where the corresponding provision was Article IV-446 Duration (OJ 16.12.2004 C 310/191).
***
The intergovernmental conference (IGC 2007) in its Article 1, the TEU amendments, jumps from Article 49c on territorial application (point 60) to Article 53 on languages (point 61) without mentioning – or altering – Article 51 TEU (OJ 17.12.2007 C 306/40).
Likewise, after inserting an Article 311a TFEU (point 293) the IGC went on to delete the heading Final provisions before Article 313 (point 313), leaving Article 312 TEC untouched (OJ 17.12.2007 C 306/132).
Article 3 of the IGC 2007 itself states (OJ 17.12.2007 C 306/133) under Final Provisions the unlimited duration of the Treaty of Lisbon:
Article 3
This Treaty is concluded for an unlimited period.
***
The conclusion seems to be that we have returned to two separate provisions with the same wording, Article 51 TEU and Article 312 TFEU (before the renumbering to come).
Even if we are back in a situation of two treaties, they are now so interdependent and entwined (including even the main exception CFSP and CSDP) as to make the renouncement of only one of them seem a preposterous idea. Therefore it looks unnecessary to have separate clauses to the contrary, i.e. the unlimited duration of each treaty.
***
If the governments (and the parliaments) of the member states are resolved to continue the process of an ever closer union among the peoples of Europe, it would highly consistent to interpret the European Union as unbreakable and eternal.
In spite of that, when discussing the new provision on withdrawal from the EU, Article 49a TEU, I concluded that, even without the new provision, the Union’s democratic values and principles were enough to make legitimate a constitutionally valid decision to secede by a member state.
If we take matters to their logical extreme, I am confident that the present European Union would not and could not go to war to prevent secession. Failing this ‘ultima ratio’, membership is, in the end, voluntary.
With the Lisbon Treaty offering the new express provision on secession, there is not even room for speculation. Any member state may choose to secede.
For the rest of the members, the objective of ever closer union would continue to guide their action. Perhaps the movement forward would even gather speed and force once the most recalcitrant member or members had set out on their own.
Possibly more clearly than before, we can distinguish between the intended permanence of the European Union and the potentially fluctuating nature of its membership. Until this day, the traffic has been in one direction only, increasing the membership from six to 27, with a few more applicants in line.
But the message of the reform treaty is that the number of members could just as well decrease, if one or more countries decided to withdraw.
Ralf Grahn
All the other communities have been intended to be permanent. The European Economic Community (EEC), the European Atomic Energy Community (EAEC or Euratom) and the European Union (EU), as well as the amending Treaties, have been concluded for an unlimited period.
***
The current provisions on unlimited duration are found in the Treaty on European Union (TEU) Article 51 and the Treaty establishing the European Community (TEC), to become the Treaty on the Functioning of the European Union (TFEU), Article 312. (For the latest consolidated version of the TEU and the TEC, go to OJ 29.12.2006 C 321/35 and 180 respectively.)
Since the European Convention proposed a unified Treaty for the European Union, it had only one corresponding provision, Article IV-9 Duration, of the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/92).
The same applied to the Treaty establishing a Constitution for Europe, where the corresponding provision was Article IV-446 Duration (OJ 16.12.2004 C 310/191).
***
The intergovernmental conference (IGC 2007) in its Article 1, the TEU amendments, jumps from Article 49c on territorial application (point 60) to Article 53 on languages (point 61) without mentioning – or altering – Article 51 TEU (OJ 17.12.2007 C 306/40).
Likewise, after inserting an Article 311a TFEU (point 293) the IGC went on to delete the heading Final provisions before Article 313 (point 313), leaving Article 312 TEC untouched (OJ 17.12.2007 C 306/132).
Article 3 of the IGC 2007 itself states (OJ 17.12.2007 C 306/133) under Final Provisions the unlimited duration of the Treaty of Lisbon:
Article 3
This Treaty is concluded for an unlimited period.
***
The conclusion seems to be that we have returned to two separate provisions with the same wording, Article 51 TEU and Article 312 TFEU (before the renumbering to come).
Even if we are back in a situation of two treaties, they are now so interdependent and entwined (including even the main exception CFSP and CSDP) as to make the renouncement of only one of them seem a preposterous idea. Therefore it looks unnecessary to have separate clauses to the contrary, i.e. the unlimited duration of each treaty.
***
If the governments (and the parliaments) of the member states are resolved to continue the process of an ever closer union among the peoples of Europe, it would highly consistent to interpret the European Union as unbreakable and eternal.
In spite of that, when discussing the new provision on withdrawal from the EU, Article 49a TEU, I concluded that, even without the new provision, the Union’s democratic values and principles were enough to make legitimate a constitutionally valid decision to secede by a member state.
If we take matters to their logical extreme, I am confident that the present European Union would not and could not go to war to prevent secession. Failing this ‘ultima ratio’, membership is, in the end, voluntary.
With the Lisbon Treaty offering the new express provision on secession, there is not even room for speculation. Any member state may choose to secede.
For the rest of the members, the objective of ever closer union would continue to guide their action. Perhaps the movement forward would even gather speed and force once the most recalcitrant member or members had set out on their own.
Possibly more clearly than before, we can distinguish between the intended permanence of the European Union and the potentially fluctuating nature of its membership. Until this day, the traffic has been in one direction only, increasing the membership from six to 27, with a few more applicants in line.
But the message of the reform treaty is that the number of members could just as well decrease, if one or more countries decided to withdraw.
Ralf Grahn
Saturday, 9 February 2008
EU Treaty of Lisbon Geographical scope II
At least from a Nordic perspective, this kind of lawmaking is like a return decades back in time. It is as if they had invented an inverted open method of coordination with worst practice benchmarking.
The ‘conference of representatives of the Member States’ (IGC 2007) has been convened to impart that the territorial scope of the Treaties is to be deduced by combining parts of a current Article with a set of prescribed amendments.
The text is gibberish or Volapûk for the reader of the Treaty of Lisbon, a completely unnecessary obfuscation of the information to be imparted, when it would have been simpler to write down the complete Article as amended.
***
In part one we saw that the Treaties apply to the member states, and we recapitulated the enlargement process and the consequent widening territorial or geographical scope of the Treaties. In this second part of the article we can turn our attention to more arcane details of applicability in the light of the Lisbon Treaty, although naming concrete territories and the expounding the limits of applicability would require further study.
Our next stop is obvious, Article 311a of the Treaty on the Functioning of the European Union (TFEU) where we see that the IGC is back at its enlightening best (OJ 17.12.2007 C 306/132):
293) Article 311 shall be repealed. A new Article 311a shall be inserted, with the wording of Article 299(2), first subparagraph, and Article 299(3) to (6); the text shall be amended as follows:
(a) the first subparagraph of paragraph 2 and paragraphs 3 to 6 shall be renumbered 1 to 5 and the following new introductory wording shall be inserted at the beginning of the Article:
‘In addition to the provisions of Article 49 C of the Treaty on European Union relating to the territorial scope of the Treaties, the following provisions shall apply:’;
(b) at the beginning of the first subparagraph of paragraph 2, renumbered 1, the words ‘the French overseas departments,’ shall be replaced by ‘Guadeloupe, French Guiana, Martinique, Réunion, Saint-Barthélemy, Saint-Martin’ and the words ‘in accordance with Article 299’ shall be added at the end;
(c) in paragraph 3, renumbered 2, the words ‘of this Treaty’ shall be deleted;
(d) in paragraph 6, renumbered 5, the introductory words ‘Notwithstanding the preceding paragraphs:’ shall be replaced by ‘Notwithstanding Article 49 C of the Treaty on European Union and paragraphs 1 to 4 of this Article:’;
(e) the following new paragraph shall be added at the end of the Article:
‘6. The European Council may, on the initiative of the Member State concerned, adopt a decision amending the status, with regard to the Union, of a Danish, French or Netherlands country or territory referred to in paragraphs 1 and 2. The European Council shall act unanimously after consulting the Commission.’.
***
We already saw the current Article 299 TEC in part one. While the application of the Treaties to the member states was elevated to the Treaty on European Union (TEU), the rest was left in the more mundane TFEU, but given a new number. Following the instructions given by our games organizers, we should end up with an Article 311a TFEU looking like this:
Article 311a TFEU
In addition to the provisions of Article 49c of the Treaty on European Union relating to the territorial scope of the Treaties, the following provisions shall apply:
1. The provisions of this Treaty shall apply to Guadeloupe, French Guiana, Martinique, Réunion, Saint-Barthélemy, Saint-Martin, the Azores, Madeira and the Canary Islands in accordance with Article 299.
2. The special arrangements for association set out in Part Four shall apply to the overseas countries and territories listed in Annex II.
The Treaties shall not apply to those overseas countries and territories having special relations with the United Kingdom of Great Britain and Northern Ireland which are not included in the aforementioned list.
3. The provisions of the Treaties shall apply to the European territories for whose external relations a Member State is responsible.
4. The provisions of the Treaties shall apply to the Åland Islands in accordance with the provisions set out in Protocol 2 to the Act concerning the conditions of accession of the Republic of Austria, the Republic of Finland and the Kingdom of Sweden.
5. Notwithstanding Article 49c of the Treaty on European Union and paragraphs 1 to 4 of this Article:
(a) the Treaties shall not apply to the Faeroe Islands;
(b) this Treaty shall not apply to the United Kingdom Sovereign Base Areas of Akrotiri and Dhekelia in Cyprus except to the extent necessary to ensure the implementation of the arrangements set out in the Protocol on the Sovereign Base Areas of the United Kingdom of Great Britain and Northern Ireland in Cyprus annexed to the Act concerning the conditions of accession of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic to the European Union and in accordance with the terms of that Protocol;
(c) the Treaties shall apply to the Channel Islands and the Isle of Man only to the extent necessary to ensure the implementation of the arrangements for those islands set out in the Treaty concerning the accession of new Member States to the European Economic Community and to the European Atomic Energy Community signed on 22 January 1972.
6. The European Council may, on the initiative of the Member State concerned, adopt a decision amending the status, with regard to the Union, of a Danish, French or Netherlands country or territory referred to in paragraphs 1 and 2. The European Council shall act unanimously after consulting the Commission.
***
We start with the rule that the Treaties apply to the territories of the member states (Article 49c TEU).
Territories outside Europe
Article 311a(1) TFEU includes the French, Portuguese and Spanish extra-European territories: Guadeloupe, French Guiana, Martinique, Réunion, Saint-Barthélemy, Saint-Martin, the Azores, Madeira and the Canary Islands.
As territories the Treaties are applicable pursuant to the main rule, but in accordance with the amended Article 299 TFEU the structural and economic situation of these territories is taken into account.
The situation is said to be compounded by their remoteness, insularity, small size, difficult topography and climate, economic dependence on a few products, the permanence and combination of which severely restrain their development. Therefore specific measures are allowed, aimed at laying down the conditions of application of the Treaties, including common policies.
The measures may concern particularly customs and trade policies, fiscal policy, free zones, agriculture and fisheries policies, conditions for supply of raw materials and essential consumer goods, state aids and conditions of access to structural funds and to horizontal Union programmes.
Associated overseas territories
According to Article 311a(2) special arrangements for association apply to the following overseas countries and territories listed in Annex II (taken from OJ 29.12.2006 C 321 E/186):
ANNEX II
OVERSEAS COUNTRIES AND TERRITORIES
to which the provisions of Part Four of the Treaty apply
— Greenland
— New Caledonia and Dependencies
— French Polynesia
— French Southern and Antarctic Territories
— Wallis and Futuna Islands
— Mayotte
— Saint Pierre and Miquelon
— Aruba
— Netherlands Antilles:
— Bonaire
— Curaçao
— Saba
— Sint Eustatius
— Sint Maarten
— Anguilla
— Cayman Islands
— Falkland Islands
— South Georgia and the South Sandwich Islands
— Montserrat
— Pitcairn
— Saint Helena and Dependencies
— British Antarctic Territory
— British Indian Ocean Territory
— Turks and Caicos Islands
— British Virgin Islands
— Bermuda
The association system is described in the current Articles 182 to 186 TEC, which live on with minimal change in the TFEU.
The Treaties do not apply to overseas countries and territories having special relations with the United Kingdom of Great Britain and Northern Ireland not included in the list.
Responsibility for external relations
The Treaties apply to the European territories for whose external relations a Member State is responsible.
Åland Islands
A European territory, the Åland Islands form an autonomous region of Finland with extended legislative powers and self-rule.
The relationship with the European Union was agreed in a protocol attached to the Accession Treaty of 1994, and one could speak of modified applicability.
European territories outside the Treaties
Although European, the territories mentioned in 311a(5) are not applicable to the Faeroe Islands and only marginally to the UK bases in Cyprus and to the Channel Islands and the Isle of Man.
***
While waiting for the (hopefully complete) consolidated versions of the Treaty of Lisbon, the student who wants to find general guidance on additional questions of applicability could find some useful information in Protocol (number 8) on the Treaties and Acts of Accession of the Kingdom of Denmark, Ireland and the United Kingdom of Great Britain and Northern Ireland, of the Hellenic Republic, of the Kingdom of Spain and the Portuguese Republic, and of Austria, the Republic of Finland and the Kingdom of Sweden, in the form they were attached to the Treaty establishing a Constitution for Europe (OJ 16.12.2004 C 310/274).
There are, for instance, provisions on Gibraltar, the Faroe Islands, the Channel Islands and the Isle of Man, Ceuta and Melilla and the Åland Islands.
Protocol (number 9) to the Constitutional Treaty contains, i.a. provisions on the sovereign base areas of the UK in Cyprus (page 328) as well as the suspension of the EU and EC ‘acquis’ in the areas of Cyprus outside the effective control of the government (page 341).
Ralf Grahn
The ‘conference of representatives of the Member States’ (IGC 2007) has been convened to impart that the territorial scope of the Treaties is to be deduced by combining parts of a current Article with a set of prescribed amendments.
The text is gibberish or Volapûk for the reader of the Treaty of Lisbon, a completely unnecessary obfuscation of the information to be imparted, when it would have been simpler to write down the complete Article as amended.
***
In part one we saw that the Treaties apply to the member states, and we recapitulated the enlargement process and the consequent widening territorial or geographical scope of the Treaties. In this second part of the article we can turn our attention to more arcane details of applicability in the light of the Lisbon Treaty, although naming concrete territories and the expounding the limits of applicability would require further study.
Our next stop is obvious, Article 311a of the Treaty on the Functioning of the European Union (TFEU) where we see that the IGC is back at its enlightening best (OJ 17.12.2007 C 306/132):
293) Article 311 shall be repealed. A new Article 311a shall be inserted, with the wording of Article 299(2), first subparagraph, and Article 299(3) to (6); the text shall be amended as follows:
(a) the first subparagraph of paragraph 2 and paragraphs 3 to 6 shall be renumbered 1 to 5 and the following new introductory wording shall be inserted at the beginning of the Article:
‘In addition to the provisions of Article 49 C of the Treaty on European Union relating to the territorial scope of the Treaties, the following provisions shall apply:’;
(b) at the beginning of the first subparagraph of paragraph 2, renumbered 1, the words ‘the French overseas departments,’ shall be replaced by ‘Guadeloupe, French Guiana, Martinique, Réunion, Saint-Barthélemy, Saint-Martin’ and the words ‘in accordance with Article 299’ shall be added at the end;
(c) in paragraph 3, renumbered 2, the words ‘of this Treaty’ shall be deleted;
(d) in paragraph 6, renumbered 5, the introductory words ‘Notwithstanding the preceding paragraphs:’ shall be replaced by ‘Notwithstanding Article 49 C of the Treaty on European Union and paragraphs 1 to 4 of this Article:’;
(e) the following new paragraph shall be added at the end of the Article:
‘6. The European Council may, on the initiative of the Member State concerned, adopt a decision amending the status, with regard to the Union, of a Danish, French or Netherlands country or territory referred to in paragraphs 1 and 2. The European Council shall act unanimously after consulting the Commission.’.
***
We already saw the current Article 299 TEC in part one. While the application of the Treaties to the member states was elevated to the Treaty on European Union (TEU), the rest was left in the more mundane TFEU, but given a new number. Following the instructions given by our games organizers, we should end up with an Article 311a TFEU looking like this:
Article 311a TFEU
In addition to the provisions of Article 49c of the Treaty on European Union relating to the territorial scope of the Treaties, the following provisions shall apply:
1. The provisions of this Treaty shall apply to Guadeloupe, French Guiana, Martinique, Réunion, Saint-Barthélemy, Saint-Martin, the Azores, Madeira and the Canary Islands in accordance with Article 299.
2. The special arrangements for association set out in Part Four shall apply to the overseas countries and territories listed in Annex II.
The Treaties shall not apply to those overseas countries and territories having special relations with the United Kingdom of Great Britain and Northern Ireland which are not included in the aforementioned list.
3. The provisions of the Treaties shall apply to the European territories for whose external relations a Member State is responsible.
4. The provisions of the Treaties shall apply to the Åland Islands in accordance with the provisions set out in Protocol 2 to the Act concerning the conditions of accession of the Republic of Austria, the Republic of Finland and the Kingdom of Sweden.
5. Notwithstanding Article 49c of the Treaty on European Union and paragraphs 1 to 4 of this Article:
(a) the Treaties shall not apply to the Faeroe Islands;
(b) this Treaty shall not apply to the United Kingdom Sovereign Base Areas of Akrotiri and Dhekelia in Cyprus except to the extent necessary to ensure the implementation of the arrangements set out in the Protocol on the Sovereign Base Areas of the United Kingdom of Great Britain and Northern Ireland in Cyprus annexed to the Act concerning the conditions of accession of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic to the European Union and in accordance with the terms of that Protocol;
(c) the Treaties shall apply to the Channel Islands and the Isle of Man only to the extent necessary to ensure the implementation of the arrangements for those islands set out in the Treaty concerning the accession of new Member States to the European Economic Community and to the European Atomic Energy Community signed on 22 January 1972.
6. The European Council may, on the initiative of the Member State concerned, adopt a decision amending the status, with regard to the Union, of a Danish, French or Netherlands country or territory referred to in paragraphs 1 and 2. The European Council shall act unanimously after consulting the Commission.
***
We start with the rule that the Treaties apply to the territories of the member states (Article 49c TEU).
Territories outside Europe
Article 311a(1) TFEU includes the French, Portuguese and Spanish extra-European territories: Guadeloupe, French Guiana, Martinique, Réunion, Saint-Barthélemy, Saint-Martin, the Azores, Madeira and the Canary Islands.
As territories the Treaties are applicable pursuant to the main rule, but in accordance with the amended Article 299 TFEU the structural and economic situation of these territories is taken into account.
The situation is said to be compounded by their remoteness, insularity, small size, difficult topography and climate, economic dependence on a few products, the permanence and combination of which severely restrain their development. Therefore specific measures are allowed, aimed at laying down the conditions of application of the Treaties, including common policies.
The measures may concern particularly customs and trade policies, fiscal policy, free zones, agriculture and fisheries policies, conditions for supply of raw materials and essential consumer goods, state aids and conditions of access to structural funds and to horizontal Union programmes.
Associated overseas territories
According to Article 311a(2) special arrangements for association apply to the following overseas countries and territories listed in Annex II (taken from OJ 29.12.2006 C 321 E/186):
ANNEX II
OVERSEAS COUNTRIES AND TERRITORIES
to which the provisions of Part Four of the Treaty apply
— Greenland
— New Caledonia and Dependencies
— French Polynesia
— French Southern and Antarctic Territories
— Wallis and Futuna Islands
— Mayotte
— Saint Pierre and Miquelon
— Aruba
— Netherlands Antilles:
— Bonaire
— Curaçao
— Saba
— Sint Eustatius
— Sint Maarten
— Anguilla
— Cayman Islands
— Falkland Islands
— South Georgia and the South Sandwich Islands
— Montserrat
— Pitcairn
— Saint Helena and Dependencies
— British Antarctic Territory
— British Indian Ocean Territory
— Turks and Caicos Islands
— British Virgin Islands
— Bermuda
The association system is described in the current Articles 182 to 186 TEC, which live on with minimal change in the TFEU.
The Treaties do not apply to overseas countries and territories having special relations with the United Kingdom of Great Britain and Northern Ireland not included in the list.
Responsibility for external relations
The Treaties apply to the European territories for whose external relations a Member State is responsible.
Åland Islands
A European territory, the Åland Islands form an autonomous region of Finland with extended legislative powers and self-rule.
The relationship with the European Union was agreed in a protocol attached to the Accession Treaty of 1994, and one could speak of modified applicability.
European territories outside the Treaties
Although European, the territories mentioned in 311a(5) are not applicable to the Faeroe Islands and only marginally to the UK bases in Cyprus and to the Channel Islands and the Isle of Man.
***
While waiting for the (hopefully complete) consolidated versions of the Treaty of Lisbon, the student who wants to find general guidance on additional questions of applicability could find some useful information in Protocol (number 8) on the Treaties and Acts of Accession of the Kingdom of Denmark, Ireland and the United Kingdom of Great Britain and Northern Ireland, of the Hellenic Republic, of the Kingdom of Spain and the Portuguese Republic, and of Austria, the Republic of Finland and the Kingdom of Sweden, in the form they were attached to the Treaty establishing a Constitution for Europe (OJ 16.12.2004 C 310/274).
There are, for instance, provisions on Gibraltar, the Faroe Islands, the Channel Islands and the Isle of Man, Ceuta and Melilla and the Åland Islands.
Protocol (number 9) to the Constitutional Treaty contains, i.a. provisions on the sovereign base areas of the UK in Cyprus (page 328) as well as the suspension of the EU and EC ‘acquis’ in the areas of Cyprus outside the effective control of the government (page 341).
Ralf Grahn
Friday, 8 February 2008
Lisbon Treaty: Consolidated language versions
There is a continuing stream of people looking for a consolidated version of the Treaty of Lisbon arriving at this blog. Since it may be tricky to find the information in the archive, I decided to compile the essence of a few posts on consolidations in English and other languages.
Please, note that this time I did not have time to check if the links are still working, or if there are pleasant surprises such as updates with protocols etc.
Let us remember that the European Union has 23 official languages. The seven or eight language versions I have noticed to date cover only parts of our community of 490 million citizens.
Here are the language versions found this far (almost all in pdf format), with the languages mentioned in alphabetical order in English:
Danish
The EU information of the Danish parliament communicates actively. Some information is available in English, too. The consolidated Lisbon Treaty is an update.
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/
***
Dutch
The DJ Nozem blog pointed me towards this new consolidation in Word format, compiled by René Barents and posted on the web site of the daily NRC Handelsblad.
René Barents: Geconsolideerde teksten van het Verdrag betreffende de Europese Unie en het Verdrag betreffende de werking van de Europese Unie zoals gewijzigd door het Verdrag van Lissabon
http://www.nrc.nl/redactie/Europa/verdraglissabon_barents.doc
***
English
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 (pdf).
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 similarities and differences between the different reform stages are highlighted
Go to http://www.statewatch.org
FCO
The UK Foreign and Commonwealth Office published a consolidated version of the Treaty of Lisbon. The ratification debate in the House of Commons is ongoing.
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, see Command Paper 7310 ‘Consolidated texts of the EU Treaties as amended by the Treaty of Lisbon’:
http://www.fco.gov.uk/Files/kfile/FCO_PDF_CM7310_ConsolidatedTreaties.pdf
The FCO 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 article by article. Available through the Official Documents web page (as is Cm 7310 mentioned above):
http://www.official-documents.gov.uk/
Markus Walther
Markus Walther, a German student from Leipzig, who produced and published a German consolidated version of the EU Treaty of Lisbon on his web site, 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 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;
http://www.openeurope.org.uk/research/comparative.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 reported that the Hungarian government has published a consolidation of the Lisbon Treaty, although was not able to verify it. But I encourage anyone with the linguistic and technical skills to search (and to report back).
***
Spanish
Real Instituto Elcano (updated after signing; read the introductory study)
http://www.realinstitutoelcano.org
***
Swedish
Sieps – Svenska institutet för europapolitiska studier
Ladda ned Lissabonfördraget - Konsoliderad version av EU:s fördrag (pdf)
Ladda ned Lissabonfördraget – Protokoll mm (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 as well as books and resources, such as official documents from the member states, popular presentations and scholarly literature, plus information on the ratification processes.
Ralf Grahn
Please, note that this time I did not have time to check if the links are still working, or if there are pleasant surprises such as updates with protocols etc.
Let us remember that the European Union has 23 official languages. The seven or eight language versions I have noticed to date cover only parts of our community of 490 million citizens.
Here are the language versions found this far (almost all in pdf format), with the languages mentioned in alphabetical order in English:
Danish
The EU information of the Danish parliament communicates actively. Some information is available in English, too. The consolidated Lisbon Treaty is an update.
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/
***
Dutch
The DJ Nozem blog pointed me towards this new consolidation in Word format, compiled by René Barents and posted on the web site of the daily NRC Handelsblad.
René Barents: Geconsolideerde teksten van het Verdrag betreffende de Europese Unie en het Verdrag betreffende de werking van de Europese Unie zoals gewijzigd door het Verdrag van Lissabon
http://www.nrc.nl/redactie/Europa/verdraglissabon_barents.doc
***
English
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 (pdf).
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 similarities and differences between the different reform stages are highlighted
Go to http://www.statewatch.org
FCO
The UK Foreign and Commonwealth Office published a consolidated version of the Treaty of Lisbon. The ratification debate in the House of Commons is ongoing.
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, see Command Paper 7310 ‘Consolidated texts of the EU Treaties as amended by the Treaty of Lisbon’:
http://www.fco.gov.uk/Files/kfile/FCO_PDF_CM7310_ConsolidatedTreaties.pdf
The FCO 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 article by article. Available through the Official Documents web page (as is Cm 7310 mentioned above):
http://www.official-documents.gov.uk/
Markus Walther
Markus Walther, a German student from Leipzig, who produced and published a German consolidated version of the EU Treaty of Lisbon on his web site, 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 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;
http://www.openeurope.org.uk/research/comparative.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 reported that the Hungarian government has published a consolidation of the Lisbon Treaty, although was not able to verify it. But I encourage anyone with the linguistic and technical skills to search (and to report back).
***
Spanish
Real Instituto Elcano (updated after signing; read the introductory study)
http://www.realinstitutoelcano.org
***
Swedish
Sieps – Svenska institutet för europapolitiska studier
Ladda ned Lissabonfördraget - Konsoliderad version av EU:s fördrag (pdf)
Ladda ned Lissabonfördraget – Protokoll mm (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 as well as books and resources, such as official documents from the member states, popular presentations and scholarly literature, plus information on the ratification processes.
Ralf Grahn
On publishing the Lisbon Treaty
I expect fair play from European governments, at home and when they work jointly through the Council of the European Union. I accept that our political system is based on representative democracy entailing accountability of the elected, and the right of the voters to change government.
Actually, I am more worried when I see political parties, potential holders of office, at election times or otherwise, giving in to populist pressures, be they substantial or procedural: cutting taxes needed for ongoing programmes, or new benefits without corresponding financing, or rash promises of referendums, to name a few.
With representative democracy comes responsibility towards the electorate, what I call fair play: openness and transparency giving the tools for democratic debate, more or less enlightened, but perhaps a bit more sane if the facts and reasons are out in the open.
These are reasons why I have such problems stomaching the conduct of the intergovernmental conference (IGC 2007), which gave us the much needed reform treaty, the Treaty of Lisbon. Modest as it was, the end result meant breaking the deadlock and giving the European project a push forward. But the IGC 2007, and the intergovernmental Council in general, are sores in our democratic system.
Since the European Union, at its present stage of development, is like a house of cards, based on international treaties between states, not a real Constitution founded on the citizens of the EU, unanimity between 27 member state governments plus ratification by all 27 members are hurdles high enough, in my opinion.
Nothing wrong in parliamentary ratification, then, but I understand the frustration of people who have waited for a promised referendum on the Lisbon Treaty in order to wreck the process, and the squirming of politicians who abdicated their responsibility when they promised a dose of ‘direct democracy’ and now have seen where purely domestic referendum debates lead.
***
If the men and women who signed the Treaty of Lisbon are hard-headed enough to pursue the route of parliamentary ratification (wherever possible), they should at least be proud enough to communicate their achievement openly and fully to all the citizens of the European Union.
By producing gibberish, and by refusing to publish consolidated versions of the Treaty of Lisbon, they sent the subliminal message that something was rotten in the contents of what they had agreed on, that it could not withstand the light of day.
Their decision and refusal not only sent the wrong message to the citizens, it was ultimately futile:
Parliamentary ratification would proceed anyway, regardless of what the public could read and debate. Even the minimum published was enough for dedicated think-tanks and individual to reconstruct the treaties as they would stand after entry into force.
But the ill-judged stonewalling of our leaders has had clear negative consequences:
There are, as far as I know, consolidated versions of the Lisbon Treaty out in the open only in a minority of the official languages of the European Union. The Council, if it deigned to discuss openly, might contend that offering no consolidated version entails equal treatment of EU citizens, since all are equally disserved. But what about openness, transparency, accountability, citizenship and decisions taken as closely as possible to the citizens?
The lack of readable texts is filled by myth and rumour. Since debate is inevitable, wouldn’t it be better if it was more closely based on facts, or at least that the ones who read the most preposterous arguments can check the real contents and judge the alleged catastrophic effects themselves?
Consolidating the treaties or deciphering their contents has lead to unnecessary duplication of work. The treaties are the fundamental documents of the European Union. Not only are they the basis for democratic debate, they are tools in daily use all over Europe.
Students who want to know the EU they are going to work in, teachers preparing lectures, researchers who could confront the questions directly, journalists checking their facts, public and private organisations operating in an EU environment and politicians at every level, all of them need accessible and readable versions of the single most important piece of legislation to emanate from the European Union since 2004.
My modest blog sees the demand for consolidated versions of the Lisbon Treaty daily, by the number of visitors who arrive from every corner of as a result of web searches for a readable text and end up here as a result of my numerous postings on the subject. Many of those who lack a readable treaty in their own language, are forced to look for a version in another idiom.
***
My message to the European Council is: Relent. Publish.
***
Not much less sad are the acquiescence of the other EU institutions and the negligible publishing efforts of most of the member states.
Is the general interest subservient to the machinations of governments and is the representation of the citizens of the Union subordinate to the underhand dealings of our national leaders?
The Constitutional Committee of the European Parliament was content to “look forward to” consolidated versions of the Lisbon Treaty they well know aren’t forthcoming presently.
To my knowledge Jens-Peter Bonde is the only member of the European Parliament who actually has done something to publish the contents of the Lisbon Treaty in a readable format.
Even the European parties seem to be part of this conspiracy of silence, at least the four I contacted by e-mail well before Christmas asking why there are no consolidated versions of the Lisbon Treaty. Do they actively want to discourage any illusion that they have the citizens’ interests at heart?
***
As long as the Council refuses to publish readable versions of the Treaty of Lisbon, I rejoice every time I find that some think-tank or individual has assumed the burden of producing and publishing a consolidated version.
If the United Kingdom and the Netherlands were most vocally opposed to publishing consolidated versions of the Lisbon Treaty (as reported by the DJ Nozem blog), it is almost hilarious to know that of at least four consolidations in English, one has been produced by Her Majesty’s government. As far as I know it is the only version published directly by a government.
And as Nanne (DJ Nozem) reported on his blog, René Barents has produced a consolidated Dutch language version of the Treaty of Lisbon, which fills a gap for about 20 million Dutch speaking EU citizens.
***
If an English and a Dutch consolidated version of the Treaty of Lisbon were deemed especially subversive by the governments in question, I find it extremely satisfying that parliamentary pressure (presumably) and private initiative, respectively, has perforated the premeditated policies of ignorance.
Now there is even less reason to uphold the counter-productive ban on publishing the rest of the language versions.
Ralf Grahn
P.S. The Dutch consolidated Treaty of Lisbon has not been mentioned on this blog before. Here are the details:
René Barents: Geconsolideerde teksten van het Verdrag betreffende de Europese Unie en het Verdrag betreffende de werking van de Europese Unie zoals gewijzigd door het Verdrag van Lissabon
http://www.nrc.nl/redactie/Europa/verdraglissabon_barents.doc
DJ Nozem Blog (Nanne)
http://djnozem.blogspot.com
Dear Reader,
Please tell me if you know about a new consolidated version of the Lisbon Treaty, or about official documents, books, research papers and other secondary literature, both popular and scholarly. The web offers us possibilities to share information.
News on the ratification processes is welcome, too.
Help me to help others. Thank you.
Actually, I am more worried when I see political parties, potential holders of office, at election times or otherwise, giving in to populist pressures, be they substantial or procedural: cutting taxes needed for ongoing programmes, or new benefits without corresponding financing, or rash promises of referendums, to name a few.
With representative democracy comes responsibility towards the electorate, what I call fair play: openness and transparency giving the tools for democratic debate, more or less enlightened, but perhaps a bit more sane if the facts and reasons are out in the open.
These are reasons why I have such problems stomaching the conduct of the intergovernmental conference (IGC 2007), which gave us the much needed reform treaty, the Treaty of Lisbon. Modest as it was, the end result meant breaking the deadlock and giving the European project a push forward. But the IGC 2007, and the intergovernmental Council in general, are sores in our democratic system.
Since the European Union, at its present stage of development, is like a house of cards, based on international treaties between states, not a real Constitution founded on the citizens of the EU, unanimity between 27 member state governments plus ratification by all 27 members are hurdles high enough, in my opinion.
Nothing wrong in parliamentary ratification, then, but I understand the frustration of people who have waited for a promised referendum on the Lisbon Treaty in order to wreck the process, and the squirming of politicians who abdicated their responsibility when they promised a dose of ‘direct democracy’ and now have seen where purely domestic referendum debates lead.
***
If the men and women who signed the Treaty of Lisbon are hard-headed enough to pursue the route of parliamentary ratification (wherever possible), they should at least be proud enough to communicate their achievement openly and fully to all the citizens of the European Union.
By producing gibberish, and by refusing to publish consolidated versions of the Treaty of Lisbon, they sent the subliminal message that something was rotten in the contents of what they had agreed on, that it could not withstand the light of day.
Their decision and refusal not only sent the wrong message to the citizens, it was ultimately futile:
Parliamentary ratification would proceed anyway, regardless of what the public could read and debate. Even the minimum published was enough for dedicated think-tanks and individual to reconstruct the treaties as they would stand after entry into force.
But the ill-judged stonewalling of our leaders has had clear negative consequences:
There are, as far as I know, consolidated versions of the Lisbon Treaty out in the open only in a minority of the official languages of the European Union. The Council, if it deigned to discuss openly, might contend that offering no consolidated version entails equal treatment of EU citizens, since all are equally disserved. But what about openness, transparency, accountability, citizenship and decisions taken as closely as possible to the citizens?
The lack of readable texts is filled by myth and rumour. Since debate is inevitable, wouldn’t it be better if it was more closely based on facts, or at least that the ones who read the most preposterous arguments can check the real contents and judge the alleged catastrophic effects themselves?
Consolidating the treaties or deciphering their contents has lead to unnecessary duplication of work. The treaties are the fundamental documents of the European Union. Not only are they the basis for democratic debate, they are tools in daily use all over Europe.
Students who want to know the EU they are going to work in, teachers preparing lectures, researchers who could confront the questions directly, journalists checking their facts, public and private organisations operating in an EU environment and politicians at every level, all of them need accessible and readable versions of the single most important piece of legislation to emanate from the European Union since 2004.
My modest blog sees the demand for consolidated versions of the Lisbon Treaty daily, by the number of visitors who arrive from every corner of as a result of web searches for a readable text and end up here as a result of my numerous postings on the subject. Many of those who lack a readable treaty in their own language, are forced to look for a version in another idiom.
***
My message to the European Council is: Relent. Publish.
***
Not much less sad are the acquiescence of the other EU institutions and the negligible publishing efforts of most of the member states.
Is the general interest subservient to the machinations of governments and is the representation of the citizens of the Union subordinate to the underhand dealings of our national leaders?
The Constitutional Committee of the European Parliament was content to “look forward to” consolidated versions of the Lisbon Treaty they well know aren’t forthcoming presently.
To my knowledge Jens-Peter Bonde is the only member of the European Parliament who actually has done something to publish the contents of the Lisbon Treaty in a readable format.
Even the European parties seem to be part of this conspiracy of silence, at least the four I contacted by e-mail well before Christmas asking why there are no consolidated versions of the Lisbon Treaty. Do they actively want to discourage any illusion that they have the citizens’ interests at heart?
***
As long as the Council refuses to publish readable versions of the Treaty of Lisbon, I rejoice every time I find that some think-tank or individual has assumed the burden of producing and publishing a consolidated version.
If the United Kingdom and the Netherlands were most vocally opposed to publishing consolidated versions of the Lisbon Treaty (as reported by the DJ Nozem blog), it is almost hilarious to know that of at least four consolidations in English, one has been produced by Her Majesty’s government. As far as I know it is the only version published directly by a government.
And as Nanne (DJ Nozem) reported on his blog, René Barents has produced a consolidated Dutch language version of the Treaty of Lisbon, which fills a gap for about 20 million Dutch speaking EU citizens.
***
If an English and a Dutch consolidated version of the Treaty of Lisbon were deemed especially subversive by the governments in question, I find it extremely satisfying that parliamentary pressure (presumably) and private initiative, respectively, has perforated the premeditated policies of ignorance.
Now there is even less reason to uphold the counter-productive ban on publishing the rest of the language versions.
Ralf Grahn
P.S. The Dutch consolidated Treaty of Lisbon has not been mentioned on this blog before. Here are the details:
René Barents: Geconsolideerde teksten van het Verdrag betreffende de Europese Unie en het Verdrag betreffende de werking van de Europese Unie zoals gewijzigd door het Verdrag van Lissabon
http://www.nrc.nl/redactie/Europa/verdraglissabon_barents.doc
DJ Nozem Blog (Nanne)
http://djnozem.blogspot.com
Dear Reader,
Please tell me if you know about a new consolidated version of the Lisbon Treaty, or about official documents, books, research papers and other secondary literature, both popular and scholarly. The web offers us possibilities to share information.
News on the ratification processes is welcome, too.
Help me to help others. Thank you.
Thursday, 7 February 2008
EU Treaty of Lisbon: Geographical scope I
Where are the Treaties of the European Union (EU) applicable? If a citizen of the EU manages to answer “In the member states”, it is a good answer. If he is able to name the member states, his response would be excellent for everyday purposes.
But we, as students of European integration, want to dig a little deeper. Therefore, we turn to the fresh accord between European governments, the Treaty of Lisbon. For comparison, we present the main provision in the current Treaty establishing the European Community (TEC) and mention the intermediary stages for those who want to follow the modifications step by step.
Since the territorial or geographical applicability of the EU Treaties is tied up with the membership of the Union, we recapitulate the different enlargement stages of the European Communities and the European Union.
Then, we add a few comments about the scope of the Reform Treaty. This is how far we go in part I.
After the proposed main provision in the Lisbon Treaty, we advance to the detailed provisions in a second part of this article, to be published later.
***
The intergovernmental conference (IGC 2007) agreed to insert the following Article 49c into the Lisbon Treaty version of the Treaty on European Union (TEU) (OJ 17.12.2007 C 306/40):
An Article 49 C shall be inserted:
Article 49c
1. The Treaties shall apply to the Kingdom of Belgium, Republic of Bulgaria, the Czech Republic, the Kingdom of Denmark, the Federal Republic of Germany, the Republic of Estonia, Ireland, the Hellenic Republic, the Kingdom of Spain, the French Republic, the Italian Republic, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Grand Duchy of Luxembourg, the Republic of Hungary, the Republic of Malta, the Kingdom of the Netherlands, the Republic of Austria, the Republic of Poland, the Portuguese Republic, Romania, the Republic of Slovenia, the Slovak Republic, the Republic of Finland, the Kingdom of Sweden and the United Kingdom of Great Britain and Northern Ireland.
2. The territorial scope of the Treaties is specified in Article 311a of the Treaty on the Functioning of the European Union.
***
The current corresponding Article is found in Article 299 of the Treaty establishing the European Community (TEC) (latest consolidated version of the TEU and TEC in OJ C 321 E/174 and 175, but amended by the 2003 Act of Accession regarding the latest entrants Bulgaria and Romania):
Article 299 TEC
1. This Treaty shall apply to the Kingdom of Belgium, the Czech Republic, the Kingdom of Denmark, the Federal Republic of Germany, the Republic of Estonia, the Hellenic Republic, the Kingdom of Spain, the French Republic, Ireland, the Italian Republic, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Grand Duchy of Luxembourg, the Republic of Hungary, the Republic of Malta, the Kingdom of the Netherlands, the Republic of Austria, the Republic of Poland, the Portuguese Republic, the Republic of Slovenia, the Slovak Republic, the Republic of Finland, the Kingdom of Sweden and the United Kingdom of Great Britain and Northern Ireland.
2. The provisions of this Treaty shall apply to the French overseas departments, the Azores, Madeira and the Canary Islands.
However, taking account of the structural social and economic situation of the French overseas departments, the Azores, Madeira and the Canary Islands, which is compounded by their remoteness, insularity, small size, difficult topography and climate, economic dependence on a few products, the permanence and combination of which severely restrain their development, the Council, acting by a qualified majority on a proposal from the Commission and after consulting the European Parliament, shall adopt specific measures aimed, in particular, at laying down the conditions of application of the present Treaty to those regions, including common policies.
The Council shall, when adopting the relevant measures referred to in the second subparagraph, take into account areas such as customs and trade policies, fiscal policy, free zones, agriculture and fisheries policies, conditions for supply of raw materials and essential consumer goods, State aids and conditions of access to structural funds and to horizontal Community programmes.
The Council shall adopt the measures referred to in the second subparagraph taking into account the special characteristics and constraints of the outermost regions without undermining the integrity and the coherence of the Community legal order, including the internal market and common policies.
3. The special arrangements for association set out in Part Four of this Treaty shall apply to the overseas countries and territories listed in Annex II to this Treaty.
This Treaty shall not apply to those overseas countries and territories having special relations with the United Kingdom of Great Britain and Northern Ireland which are not included in the aforementioned list.
4. The provisions of this Treaty shall apply to the European territories for whose external relations a Member State is responsible.
5. The provisions of this Treaty shall apply to the Åland Islands in accordance with the provisions set out in Protocol 2 to the Act concerning the conditions of accession of the Republic of Austria, the Republic of Finland and the Kingdom of Sweden.
6. Notwithstanding the preceding paragraphs:
(a) this Treaty shall not apply to the Faeroe Islands;
(b) this Treaty shall not apply to the United Kingdom Sovereign Base Areas of Akrotiri and Dhekelia in Cyprus except to the extent necessary to ensure the implementation of the arrangements set out in the Protocol on the Sovereign Base Areas of the United Kingdom of Great Britain and Northern Ireland in Cyprus annexed to the Act concerning the conditions of accession of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic to the European Union and in accordance with the terms of that Protocol;
(c) this Treaty shall apply to the Channel Islands and the Isle of Man only to the extent necessary to ensure the implementation of the arrangements for those islands set out in the Treaty concerning the accession of new Member States to the European Economic Community and to the European Atomic Energy Community signed on 22 January 1972.
***
I refer the reader who wants to compare the evolvement of the scope of the Treaties to the main provisions of the following intermediary stages:
The European Convention proposed an Article IV-4 Scope, under Part IV General and final provisions, with three dots at the end of paragraph 1 in anticipation of the ten entrants of May 2004. See draft Treaty establishing a Constitution for Europe, OJ 18.7.2003 C 169/91 and 92.
The IGC 2004 signed up to Article IV-440 Scope, under Part IV General and final provisions, with modifications in the Treaty establishing a Constitution for Europe. See OJ 16.12.2004 C 310/188 and 189.
***
The IGC 2007 was a tidying-up exercise in at least two respects, as far as Article 49c(1) TEU of the Treaty of Lisbon is concerned. The Article introduces a complete list of the member states of the European Union, all 27 of them, by including the latest accession countries Bulgaria and Romania.
The second clarification is the choice to mention only the member states in the more basic of the basic treaties, the TEU. The TEU and the Treaty on the Functioning of the European Union (TFEU) are equally binding, but the TEU could be described as being more equal than the other.
The general reader finds the needed information, the names of the member states, in the future TEU. The gritty detail is shifted to the TFEU for those want to delve deeper. This is done by the referral in Article 49c(2) to Article 311a TFEU.
***
Let us start with the main point, the spectacular enlargement of the European Communities. First there was the European Coal and Steel Community (ECSC), established by the Treaty of Paris 1951, which expired in 2002 after 50 years in force.
When only five of the six original members showed maturity enough to launch the European Defence Community and the European (Political) Community and the effort failed, the relaunch of European construction was achieved by the six founding members on a more modest scale by the Treaties of Rome 1957, establishing the European Economic Community (EEC) and the European Atomic Energy Community (EAEC or Euratom).
The six founding members of the ECSC, the EEC and Euratom were Belgium, France, (West) Germany, Italy, Luxembourg and the Netherlands.
Denmark, Ireland and the United Kingdom joined in 1973, bringing the membership to nine.
The Mediterranean enlargement followed in two phases, first Greece in 1981 and then Portugal and Spain in 1986. A Europe of twelve was born.
The first Eastern enlargement was not technically an accession, since the Federal Republic of Germany absorbed the German Democratic Republic in 1990.
A flavour of neutrality and non-alignment was added in 1995 with the accession of Austria, Finland and Sweden to what had become the European Union (EU) and the European Community (EC).
The abbreviation EU-15 started to make its appearance with increasing frequency as the EU headed towards the big bang of Eastern (and Mediterranean) enlargement. In May 2004 ten new states became EU members:
Cyprus, the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Malta, Poland, Slovakia and Slovenia (EU-25).
Bulgaria and Romania completed this enlargement round by joining the EU in 2007, raising the number of members to 27 and the population of the EU to around 490 million, some would say ‘an internal market of’, others ‘citizens’. (Of course, the internal market comprising the European Economic Area, EEA, is slightly larger than the EC, if we want to make the distinction.)
***
A few comments by your glossator:
As a treaty based organisation, the European Union has no territory primarily its own. The geographical extent of the EU is derived from its member states, being in principle the sum of its member states’ (European) territories.
Three things seem worth mentioning:
First, according to the wording, the Treaties do not apply “in” but primarily “to” the member states mentioned. Applicability “in” their territories could be said to be incidental.
Second, from the applicability of primary law (the Treaties) follows that the secondary legislation – regulations, directives and decisions – is applicable, too.
Third, international treaties concluded by the European Community (in the future the European Union) within its powers, are applied in the same territory.
Thus far, the scope of EU law looks pretty clear. We are ready to answer most of the questions most of the time, but we have yet to face the small print, which will be the subject of instalment II.
Ralf Grahn
But we, as students of European integration, want to dig a little deeper. Therefore, we turn to the fresh accord between European governments, the Treaty of Lisbon. For comparison, we present the main provision in the current Treaty establishing the European Community (TEC) and mention the intermediary stages for those who want to follow the modifications step by step.
Since the territorial or geographical applicability of the EU Treaties is tied up with the membership of the Union, we recapitulate the different enlargement stages of the European Communities and the European Union.
Then, we add a few comments about the scope of the Reform Treaty. This is how far we go in part I.
After the proposed main provision in the Lisbon Treaty, we advance to the detailed provisions in a second part of this article, to be published later.
***
The intergovernmental conference (IGC 2007) agreed to insert the following Article 49c into the Lisbon Treaty version of the Treaty on European Union (TEU) (OJ 17.12.2007 C 306/40):
An Article 49 C shall be inserted:
Article 49c
1. The Treaties shall apply to the Kingdom of Belgium, Republic of Bulgaria, the Czech Republic, the Kingdom of Denmark, the Federal Republic of Germany, the Republic of Estonia, Ireland, the Hellenic Republic, the Kingdom of Spain, the French Republic, the Italian Republic, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Grand Duchy of Luxembourg, the Republic of Hungary, the Republic of Malta, the Kingdom of the Netherlands, the Republic of Austria, the Republic of Poland, the Portuguese Republic, Romania, the Republic of Slovenia, the Slovak Republic, the Republic of Finland, the Kingdom of Sweden and the United Kingdom of Great Britain and Northern Ireland.
2. The territorial scope of the Treaties is specified in Article 311a of the Treaty on the Functioning of the European Union.
***
The current corresponding Article is found in Article 299 of the Treaty establishing the European Community (TEC) (latest consolidated version of the TEU and TEC in OJ C 321 E/174 and 175, but amended by the 2003 Act of Accession regarding the latest entrants Bulgaria and Romania):
Article 299 TEC
1. This Treaty shall apply to the Kingdom of Belgium, the Czech Republic, the Kingdom of Denmark, the Federal Republic of Germany, the Republic of Estonia, the Hellenic Republic, the Kingdom of Spain, the French Republic, Ireland, the Italian Republic, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Grand Duchy of Luxembourg, the Republic of Hungary, the Republic of Malta, the Kingdom of the Netherlands, the Republic of Austria, the Republic of Poland, the Portuguese Republic, the Republic of Slovenia, the Slovak Republic, the Republic of Finland, the Kingdom of Sweden and the United Kingdom of Great Britain and Northern Ireland.
2. The provisions of this Treaty shall apply to the French overseas departments, the Azores, Madeira and the Canary Islands.
However, taking account of the structural social and economic situation of the French overseas departments, the Azores, Madeira and the Canary Islands, which is compounded by their remoteness, insularity, small size, difficult topography and climate, economic dependence on a few products, the permanence and combination of which severely restrain their development, the Council, acting by a qualified majority on a proposal from the Commission and after consulting the European Parliament, shall adopt specific measures aimed, in particular, at laying down the conditions of application of the present Treaty to those regions, including common policies.
The Council shall, when adopting the relevant measures referred to in the second subparagraph, take into account areas such as customs and trade policies, fiscal policy, free zones, agriculture and fisheries policies, conditions for supply of raw materials and essential consumer goods, State aids and conditions of access to structural funds and to horizontal Community programmes.
The Council shall adopt the measures referred to in the second subparagraph taking into account the special characteristics and constraints of the outermost regions without undermining the integrity and the coherence of the Community legal order, including the internal market and common policies.
3. The special arrangements for association set out in Part Four of this Treaty shall apply to the overseas countries and territories listed in Annex II to this Treaty.
This Treaty shall not apply to those overseas countries and territories having special relations with the United Kingdom of Great Britain and Northern Ireland which are not included in the aforementioned list.
4. The provisions of this Treaty shall apply to the European territories for whose external relations a Member State is responsible.
5. The provisions of this Treaty shall apply to the Åland Islands in accordance with the provisions set out in Protocol 2 to the Act concerning the conditions of accession of the Republic of Austria, the Republic of Finland and the Kingdom of Sweden.
6. Notwithstanding the preceding paragraphs:
(a) this Treaty shall not apply to the Faeroe Islands;
(b) this Treaty shall not apply to the United Kingdom Sovereign Base Areas of Akrotiri and Dhekelia in Cyprus except to the extent necessary to ensure the implementation of the arrangements set out in the Protocol on the Sovereign Base Areas of the United Kingdom of Great Britain and Northern Ireland in Cyprus annexed to the Act concerning the conditions of accession of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic to the European Union and in accordance with the terms of that Protocol;
(c) this Treaty shall apply to the Channel Islands and the Isle of Man only to the extent necessary to ensure the implementation of the arrangements for those islands set out in the Treaty concerning the accession of new Member States to the European Economic Community and to the European Atomic Energy Community signed on 22 January 1972.
***
I refer the reader who wants to compare the evolvement of the scope of the Treaties to the main provisions of the following intermediary stages:
The European Convention proposed an Article IV-4 Scope, under Part IV General and final provisions, with three dots at the end of paragraph 1 in anticipation of the ten entrants of May 2004. See draft Treaty establishing a Constitution for Europe, OJ 18.7.2003 C 169/91 and 92.
The IGC 2004 signed up to Article IV-440 Scope, under Part IV General and final provisions, with modifications in the Treaty establishing a Constitution for Europe. See OJ 16.12.2004 C 310/188 and 189.
***
The IGC 2007 was a tidying-up exercise in at least two respects, as far as Article 49c(1) TEU of the Treaty of Lisbon is concerned. The Article introduces a complete list of the member states of the European Union, all 27 of them, by including the latest accession countries Bulgaria and Romania.
The second clarification is the choice to mention only the member states in the more basic of the basic treaties, the TEU. The TEU and the Treaty on the Functioning of the European Union (TFEU) are equally binding, but the TEU could be described as being more equal than the other.
The general reader finds the needed information, the names of the member states, in the future TEU. The gritty detail is shifted to the TFEU for those want to delve deeper. This is done by the referral in Article 49c(2) to Article 311a TFEU.
***
Let us start with the main point, the spectacular enlargement of the European Communities. First there was the European Coal and Steel Community (ECSC), established by the Treaty of Paris 1951, which expired in 2002 after 50 years in force.
When only five of the six original members showed maturity enough to launch the European Defence Community and the European (Political) Community and the effort failed, the relaunch of European construction was achieved by the six founding members on a more modest scale by the Treaties of Rome 1957, establishing the European Economic Community (EEC) and the European Atomic Energy Community (EAEC or Euratom).
The six founding members of the ECSC, the EEC and Euratom were Belgium, France, (West) Germany, Italy, Luxembourg and the Netherlands.
Denmark, Ireland and the United Kingdom joined in 1973, bringing the membership to nine.
The Mediterranean enlargement followed in two phases, first Greece in 1981 and then Portugal and Spain in 1986. A Europe of twelve was born.
The first Eastern enlargement was not technically an accession, since the Federal Republic of Germany absorbed the German Democratic Republic in 1990.
A flavour of neutrality and non-alignment was added in 1995 with the accession of Austria, Finland and Sweden to what had become the European Union (EU) and the European Community (EC).
The abbreviation EU-15 started to make its appearance with increasing frequency as the EU headed towards the big bang of Eastern (and Mediterranean) enlargement. In May 2004 ten new states became EU members:
Cyprus, the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Malta, Poland, Slovakia and Slovenia (EU-25).
Bulgaria and Romania completed this enlargement round by joining the EU in 2007, raising the number of members to 27 and the population of the EU to around 490 million, some would say ‘an internal market of’, others ‘citizens’. (Of course, the internal market comprising the European Economic Area, EEA, is slightly larger than the EC, if we want to make the distinction.)
***
A few comments by your glossator:
As a treaty based organisation, the European Union has no territory primarily its own. The geographical extent of the EU is derived from its member states, being in principle the sum of its member states’ (European) territories.
Three things seem worth mentioning:
First, according to the wording, the Treaties do not apply “in” but primarily “to” the member states mentioned. Applicability “in” their territories could be said to be incidental.
Second, from the applicability of primary law (the Treaties) follows that the secondary legislation – regulations, directives and decisions – is applicable, too.
Third, international treaties concluded by the European Community (in the future the European Union) within its powers, are applied in the same territory.
Thus far, the scope of EU law looks pretty clear. We are ready to answer most of the questions most of the time, but we have yet to face the small print, which will be the subject of instalment II.
Ralf Grahn
Wednesday, 6 February 2008
EU Treaty of Lisbon: Protocols and Annexes
In the Treaty of Lisbon version of the Treaty on European Union (TEU), among the Final provisions, we find the new Article 49b (OJ 17.12.2007 C 306/40), slim as the lid of Pandora’s box:
59) The following Article 49 B shall be inserted:
Article 49 B
The Protocols and Annexes to the Treaties shall form an integral part thereof.
***
There is no corresponding Article in the existing TEU, but Article 311 of the Treaty establishing the European Community (TEC) has the following wording (for the latest consolidated version of the TEU and TEC go to OJ 29.12.2006 C 321 E):
Article 311
The protocols annexed to this Treaty by common accord of the Member States shall form an integral part thereof.
According to the Lisbon Treaty, Article 311 TEC is repealed (OJ 17.12.2007 C 306/132, point 293).
***
Since the European Convention’s draft Treaty establishing a Constitution for Europe was unified, the corresponding Article IV-6 referred to the whole Treaty (OJ 18.7.2003 C 169/92):
Article IV-6
Protocols
The protocols annexed to this Treaty shall form an integral part thereof.
***
The same unified structure applied to the Treaty establishing a Constitution for Europe (OJ 16.12.2004 C 310/189):
Article IV-442
Protocols and Annexes
The Protocols and Annexes to this Treaty shall form an integral part thereof.
***
In the law of the European Union, a new legal order, the Treaties are primary legislation. Currently the Treaties are the Treaty on European Union (TEU) and the Treaty establishing the European Community (TEC). If the Treaty of Lisbon enters into force, there would be the amended Treaty on European Union (TEU) and the amended and renamed Treaty on the Functioning of the European Union (TFEU).
The current TEC speaks of the protocols as an integral part of the Treaty, as did the draft Constitution. The Constitution added the Annexes to the Protocols (annexed to the Treaty by common accord), as does the Lisbon Treaty. The scope of the provision widens from the EC to the EU.
The Protocols form an integral part of the Treaties, and they are ratified as such. They have legal force, and they can contain detailed provisions meant not to burden the Treaty texts themselves.
The Declarations have political force, but are not to be legally binding. There have been joint Declarations, based on common accord, and unilateral Declarations made by one or more member states, but not politically binding on the whole.
The new wording ‘and Annexes’ merits attention. The UK House of Commons new Research Paper (page 75) a bit hastily says that Article 49b “like the present Article 311 TEC, states that the Protocols and Annexes will form an integral part of the Treaties”.
As we have seen, the words “and Annexes” have been added, although Article 311 TEC uses the phrase “(t)he protocols annexed to this Treaty by common accord of the Member States”. But the conclusion of the Research Paper seems sound:
“This is a new clause in the TEU, extending the application of current Article 311 TEC, which is repealed. It means the Protocols and Annexes will have the full legal effect of the Treaty articles themselves. This is not the case for Declarations attached to the Treaties.”
***
We can now take a look at how the intergovernmental conference (IGC 2007) has structured its Final Act (OJ 2007/C 306/02).
As far as I understand, the legally binding parts are:
I the TEU and the TFEU
II the Protocols, namely:
A. Protocols annexed to the Treaty on European Union, to the Treaty establishing the European Community, and/or the Treaty establishing the European Atomic Energy Community
B. Protocols annexed to the Treaty of Lisbon
III. Annex to the Treaty of Lisbon (tables of equivalences)
They form an integral part of the Treaties.
FINAL ACT (OJ 17.12.2007 C 306/229)
THE CONFERENCE OF THE REPRESENTATIVES OF THE GOVERNMENTS OF THE MEMBER STATES,
convened in Brussels on 23 July 2007 to adopt by common accord the amendments to be made to theTreaty on European Union, the Treaty establishing the European Community, and to the Treaty establishing the European Atomic Energy Community, has adopted the following texts:
I. The Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community
II. Protocols
A. Protocols annexed to the Treaty on European Union, to the Treaty establishing the European Community, and/or the Treaty establishing the European Atomic Energy Community:
— Protocol on the role of national Parliaments in the European Union
— Protocol on the application of the principles of subsidiarity and proportionality
— Protocol on the Euro Group
— Protocol on permanent structured cooperation established by Article 28 A of the Treaty on European Union
— Protocol relating to Article 6(2) of the Treaty on European Union on the accession of the Union to the European Convention on the Protection of Human Rights and Fundamental Freedoms
— Protocol on the internal market and competition
— Protocol on the application of the Charter of Fundamental Rights of the European Union to Poland and to the United Kingdom
— Protocol on the exercise of shared competence
— Protocol on services of general interest
— Protocol on the Decision of the Council relating to the implementation of Article 9 C(4) of the Treaty on European Union and Article 205(2) of the Treaty on the Functioning of the European Union between 1 November 2014 and 31 March 2017 on the one hand, and as from 1 April 2017 on the other
— Protocol on transitional provisions
These are mainly new Protocols, some of them derived from the Constitutional Treaty and some the result of the IGC 2007 negotiations.
***
B. Protocols annexed to the Treaty of Lisbon
— Protocol No 1 amending the Protocols annexed to the Treaty on European Union, to the Treaty establishing the European Community and/or to the Treaty establishing the European Atomic Energy Community
— Tables of equivalences referred to in Article 2 of Protocol No 1 amending the protocols annexed to the Treaty on European Union, to the Treaty establishing the European Community and/or the Treaty establishing the European Atomic Energy Community
— Protocol No 2 amending the Treaty establishing the European Atomic Energy Community
Behind Protocol 1 of this group we find adaptations to 26 existing Protocols, including rules for the Court of Justice and the European Central Bank, as well as traditional opt-outs from areas of Community (EU) law for the United Kingdom, Ireland and Denmark.
Ten redundant Protocols are repealed according to the count of the Swedish government (page 398).
Protocol number 2 is an adaptation of the Treaty establishing the European Atomic Energy Community (EAEC). – In Declaration 54 the Federal Republic of Germany, Ireland, the
Republic of Hungary, the Republic of Austria and the Kingdom of Sweden note that the core provisions of the Treaty establishing the European Atomic Energy Community have not been substantially amended since its entry into force and need to be brought up to date. They therefore support the idea of a Conference of the Representatives of the Governments of the Member States, which should be convened as soon as possible.
***
III. Annex to the Treaty of Lisbon:
— Tables of equivalences referred to in Article 5 of the Treaty of Lisbon
This binding Annex contains the tables with the numbering of the current TEU, the original numbering of the Treaty of Lisbon and the numbering for the future consolidated TEU. The same goes for the TEC, the Treaty of Lisbon and the consolidated TFEU.
In addition to the current, Lisbon and future numbers of Articles, we have the Lisbon Treaty itself, divided into seven Articles. “Article 5 of the Treaty of Lisbon” refers to this numbering, under the Final Provisions in the Official Journal, page 133, where the renumbering is ordered:
Article 5(1) ToL
1. The articles, sections, chapters, titles and parts of the Treaty on European Union and of the
Treaty establishing the European Community, as amended by this Treaty, shall be renumbered in accordance with the tables of equivalences set out in the Annex to this Treaty, and which form an integral part of this Treaty.
The reader who feels slightly bewildered is excused.
***
The Declarations adopted by the IGC 2007 are annexed to the Final Act, but not to the Treaty. The joint Declarations would still be politically but not legally binding on the member states as a whole. There are two groups of joint Declarations:
A. Declarations concerning provisions of the Treaties
B. Declarations concerning Protocols annexed to the Treaties
The Conference has adopted the following declarations annexed to this Final Act.
A. Declarations concerning provisions of the Treaties
1. Declaration concerning the Charter of Fundamental Rights of the European Union
2. Declaration on Article 6(2) of the Treaty on European Union
3. Declaration on Article 7a of the Treaty on European Union
4. Declaration on the composition of the European Parliament
5. Declaration on the political agreement by the European Council concerning the draft Decision on the composition of the European Parliament
6. Declaration on Articles 9 B(5) and (6), Articles 9 D(6) and (7), and Article 9 E of the Treaty on European Union
7. Declaration on Article 9 C(4) of the Treaty on European Union and Article 205(2) of the Treaty on the Functioning of the European Union
8. Declaration 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 of the Foreign Affairs Council
9. Declaration on Article 9 C(9) of the Treaty on European Union concerning the European Council decision on the exercise of the Presidency of the Council
10. Declaration on Article 9 D of the Treaty on European Union
11. Declaration on Article 9 D(6) and (7) of the Treaty on European Union
12. Declaration on Article 9 E of the Treaty on European Union
13. Declaration concerning the common foreign and security policy
14. Declaration concerning the common foreign and security policy
15. Declaration on Article 13a of the Treaty on European Union
16. Declaration on Article 53(2) of the Treaty on European Union
17. Declaration concerning primacy
18. Declaration in relation to the delimitation of competences
19. Declaration on Article 3 of the Treaty on the Functioning of the European Union
20. Declaration on Article 16 B of the Treaty on the Functioning of the European Union
21. Declaration on the protection of personal data in the fields of judicial cooperation in criminal matters and police cooperation
22. Declaration on Articles 42 and 63a of the Treaty on the Functioning of the European Union
23. Declaration on the second paragraph of Article 42 of the Treaty on the Functioning of the European Union
24. Declaration concerning the legal personality of the European Union
25. Declaration on Articles 61 H and 188 K of the Treaty on the Functioning of the European Union
26. Declaration on non-participation by a Member State in a measure based on Title IV of Part Three of the Treaty on the Functioning of the European Union
27. Declaration on Article 69 D(1), second subparagraph, of the Treaty on the Functioning of the European Union
28. Declaration on Article 78 of the Treaty on the Functioning of the European Union
29. Declaration on Article 87(2)(c) of the Treaty on the Functioning of the European Union
30. Declaration on Article 104 of the Treaty on the Functioning of the European Union
31. Declaration on Article 140 of the Treaty on the Functioning of the European Union
32. Declaration on Article 152(4)(c) of the Treaty on the Functioning of the European Union
33. Declaration on Article 158 of the Treaty on the Functioning of the European Union
34. Declaration on Article 163 of the Treaty on the Functioning of the European Union
35. Declaration on Article 176 A of the Treaty on the Functioning of the European Union
36. Declaration on Article 188 N of the Treaty on the Functioning of the European Union concerning the negotiation and conclusion of international agreements by Member States relating to the area of freedom, security and justice
37. Declaration on Article 188 R of the Treaty on the Functioning of the European Union
38. Declaration on Article 222 of the Treaty on the Functioning of the European Union regarding the number of Advocates-General in the Court of Justice
39. Declaration on Article 249 B of the Treaty on the Functioning of the European Union
40. Declaration on Article 280 D of the Treaty on the Functioning of the European Union
41. Declaration on Article 308 of the Treaty on the Functioning of the European Union
42. Declaration on Article 308 of the Treaty on the Functioning of the European Union
43. Declaration on Article 311a(6) of the Treaty on the Functioning of the European Union
B. Declarations concerning Protocols annexed to the Treaties
44. Declaration on Article 5 of the Protocol on the Schengen acquis integrated into the framework of the European Union
45. Declaration on Article 5(2) of the Protocol on the Schengen acquis integrated into the framework of the European Union
46. Declaration on Article 5(3) of the Protocol on the Schengen acquis integrated into the framework of the European Union
47. Declaration on Article 5(3), (4) and (5) of the Protocol on the Schengen acquis integrated into the framework of the European Union
48. Declaration concerning the Protocol on the position of Denmark
49. Declaration concerning Italy
50. Declaration concerning Article 10 of the Protocol on transitional provisions
***
Then there are the unilateral Declarations, by one or more member states, without legal force for the whole, but expressing the political intent of the declarants.
Furthermore, the Conference has noted the declarations listed hereafter and annexed to this Final Act:
51. Declaration by the Kingdom of Belgium on national Parliaments
52. Declaration by the Kingdom of Belgium, the Republic of Bulgaria, the Federal Republic of Germany, the Hellenic Republic, the Kingdom of Spain, the Italian Republic, the Republic of Cyprus, the Republic of Lithuania, the Grand-Duchy of Luxembourg, the Republic of Hungary, the Republic of Malta, the Republic of Austria, the Portuguese Republic, Romania, the Republic of Slovenia, and the Slovak Republic on the symbols of the European Union
53. Declaration by the Czech Republic on the Charter of Fundamental Rights of the European Union
54. Declaration by the Federal Republic of Germany, Ireland, the Republic of Hungary, the Republic of Austria and the Kingdom of Sweden
55. Declaration by the Kingdom of Spain and the United Kingdom of Great Britain and Northern Ireland
56. Declaration by Ireland on Article 3 of the Protocol on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice
57. Declaration by the Italian Republic on the composition of the European Parliament
58. Declaration by the Republic of Latvia, the Republic of Hungary and the Republic of Malta on the spelling of the name of the single currency in the Treaties
59. Declaration by the Kingdom of the Netherlands on Article 270a of the Treaty on the Functioning of the European Union
60. Declaration by the Kingdom of the Netherlands on Article 311a of the Treaty on the Functioning of the European Union
61. Declaration by the Republic of Poland on the Charter of Fundamental Rights of the European Union
62. Declaration by the Republic of Poland concerning the Protocol on the application of the Charter of Fundamental Rights of the European Union in relation to Poland and the United Kingdom
63. Declaration by the United Kingdom of Great Britain and Northern Ireland on the definition of the term ‘nationals’
64. Declaration by the United Kingdom of Great Britain and Northern Ireland on the franchise for elections to the European Parliament
65. Declaration by the United Kingdom of Great Britain and Northern Ireland on Article 61 H of the Treaty on the Functioning of the European Union
***
If my understanding is correct, the only legally binding addition to the Treaties themselves and the Protocols is the Annex containing the tables of equivalences. Thus, there is no change concerning the political nature of the Declarations annexed to the Final Act, but not to the Treaties.
Ralf Grahn
Sources:
UK House of Commons Library Research Paper 08/09, 24 January 2008: The Treaty of Lisbon: amendments to the Treaty on European Union
http://www.parliament.uk/commons/lib/research/rp2008/rp08-009.pdf
Government of Sweden, Regeringskansliet: Lissabonfördraget, Statsrådsberedningen, Departementsserien (Ds) Ds 2007:48, 20 december 2007
http://www.regeringen.se/sb/d/108/a/94981
Government of Denmark: Lov om aendring af lov om Danmarks tiltraedelse af De Europaeiske Faelleskaber og Den Europaeiske Union (Danmarks ratification af Lissabon-traktaten); Lovforslag nr. L 53, Fremsat den 9. januar 2008 af udenrigsministeren (Per Stig Møller); Bind III
http://www.eu-oplysningen.dk/upload/application/pdf/c510022c/BindIII.pdf
59) The following Article 49 B shall be inserted:
Article 49 B
The Protocols and Annexes to the Treaties shall form an integral part thereof.
***
There is no corresponding Article in the existing TEU, but Article 311 of the Treaty establishing the European Community (TEC) has the following wording (for the latest consolidated version of the TEU and TEC go to OJ 29.12.2006 C 321 E):
Article 311
The protocols annexed to this Treaty by common accord of the Member States shall form an integral part thereof.
According to the Lisbon Treaty, Article 311 TEC is repealed (OJ 17.12.2007 C 306/132, point 293).
***
Since the European Convention’s draft Treaty establishing a Constitution for Europe was unified, the corresponding Article IV-6 referred to the whole Treaty (OJ 18.7.2003 C 169/92):
Article IV-6
Protocols
The protocols annexed to this Treaty shall form an integral part thereof.
***
The same unified structure applied to the Treaty establishing a Constitution for Europe (OJ 16.12.2004 C 310/189):
Article IV-442
Protocols and Annexes
The Protocols and Annexes to this Treaty shall form an integral part thereof.
***
In the law of the European Union, a new legal order, the Treaties are primary legislation. Currently the Treaties are the Treaty on European Union (TEU) and the Treaty establishing the European Community (TEC). If the Treaty of Lisbon enters into force, there would be the amended Treaty on European Union (TEU) and the amended and renamed Treaty on the Functioning of the European Union (TFEU).
The current TEC speaks of the protocols as an integral part of the Treaty, as did the draft Constitution. The Constitution added the Annexes to the Protocols (annexed to the Treaty by common accord), as does the Lisbon Treaty. The scope of the provision widens from the EC to the EU.
The Protocols form an integral part of the Treaties, and they are ratified as such. They have legal force, and they can contain detailed provisions meant not to burden the Treaty texts themselves.
The Declarations have political force, but are not to be legally binding. There have been joint Declarations, based on common accord, and unilateral Declarations made by one or more member states, but not politically binding on the whole.
The new wording ‘and Annexes’ merits attention. The UK House of Commons new Research Paper (page 75) a bit hastily says that Article 49b “like the present Article 311 TEC, states that the Protocols and Annexes will form an integral part of the Treaties”.
As we have seen, the words “and Annexes” have been added, although Article 311 TEC uses the phrase “(t)he protocols annexed to this Treaty by common accord of the Member States”. But the conclusion of the Research Paper seems sound:
“This is a new clause in the TEU, extending the application of current Article 311 TEC, which is repealed. It means the Protocols and Annexes will have the full legal effect of the Treaty articles themselves. This is not the case for Declarations attached to the Treaties.”
***
We can now take a look at how the intergovernmental conference (IGC 2007) has structured its Final Act (OJ 2007/C 306/02).
As far as I understand, the legally binding parts are:
I the TEU and the TFEU
II the Protocols, namely:
A. Protocols annexed to the Treaty on European Union, to the Treaty establishing the European Community, and/or the Treaty establishing the European Atomic Energy Community
B. Protocols annexed to the Treaty of Lisbon
III. Annex to the Treaty of Lisbon (tables of equivalences)
They form an integral part of the Treaties.
FINAL ACT (OJ 17.12.2007 C 306/229)
THE CONFERENCE OF THE REPRESENTATIVES OF THE GOVERNMENTS OF THE MEMBER STATES,
convened in Brussels on 23 July 2007 to adopt by common accord the amendments to be made to theTreaty on European Union, the Treaty establishing the European Community, and to the Treaty establishing the European Atomic Energy Community, has adopted the following texts:
I. The Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community
II. Protocols
A. Protocols annexed to the Treaty on European Union, to the Treaty establishing the European Community, and/or the Treaty establishing the European Atomic Energy Community:
— Protocol on the role of national Parliaments in the European Union
— Protocol on the application of the principles of subsidiarity and proportionality
— Protocol on the Euro Group
— Protocol on permanent structured cooperation established by Article 28 A of the Treaty on European Union
— Protocol relating to Article 6(2) of the Treaty on European Union on the accession of the Union to the European Convention on the Protection of Human Rights and Fundamental Freedoms
— Protocol on the internal market and competition
— Protocol on the application of the Charter of Fundamental Rights of the European Union to Poland and to the United Kingdom
— Protocol on the exercise of shared competence
— Protocol on services of general interest
— Protocol on the Decision of the Council relating to the implementation of Article 9 C(4) of the Treaty on European Union and Article 205(2) of the Treaty on the Functioning of the European Union between 1 November 2014 and 31 March 2017 on the one hand, and as from 1 April 2017 on the other
— Protocol on transitional provisions
These are mainly new Protocols, some of them derived from the Constitutional Treaty and some the result of the IGC 2007 negotiations.
***
B. Protocols annexed to the Treaty of Lisbon
— Protocol No 1 amending the Protocols annexed to the Treaty on European Union, to the Treaty establishing the European Community and/or to the Treaty establishing the European Atomic Energy Community
— Tables of equivalences referred to in Article 2 of Protocol No 1 amending the protocols annexed to the Treaty on European Union, to the Treaty establishing the European Community and/or the Treaty establishing the European Atomic Energy Community
— Protocol No 2 amending the Treaty establishing the European Atomic Energy Community
Behind Protocol 1 of this group we find adaptations to 26 existing Protocols, including rules for the Court of Justice and the European Central Bank, as well as traditional opt-outs from areas of Community (EU) law for the United Kingdom, Ireland and Denmark.
Ten redundant Protocols are repealed according to the count of the Swedish government (page 398).
Protocol number 2 is an adaptation of the Treaty establishing the European Atomic Energy Community (EAEC). – In Declaration 54 the Federal Republic of Germany, Ireland, the
Republic of Hungary, the Republic of Austria and the Kingdom of Sweden note that the core provisions of the Treaty establishing the European Atomic Energy Community have not been substantially amended since its entry into force and need to be brought up to date. They therefore support the idea of a Conference of the Representatives of the Governments of the Member States, which should be convened as soon as possible.
***
III. Annex to the Treaty of Lisbon:
— Tables of equivalences referred to in Article 5 of the Treaty of Lisbon
This binding Annex contains the tables with the numbering of the current TEU, the original numbering of the Treaty of Lisbon and the numbering for the future consolidated TEU. The same goes for the TEC, the Treaty of Lisbon and the consolidated TFEU.
In addition to the current, Lisbon and future numbers of Articles, we have the Lisbon Treaty itself, divided into seven Articles. “Article 5 of the Treaty of Lisbon” refers to this numbering, under the Final Provisions in the Official Journal, page 133, where the renumbering is ordered:
Article 5(1) ToL
1. The articles, sections, chapters, titles and parts of the Treaty on European Union and of the
Treaty establishing the European Community, as amended by this Treaty, shall be renumbered in accordance with the tables of equivalences set out in the Annex to this Treaty, and which form an integral part of this Treaty.
The reader who feels slightly bewildered is excused.
***
The Declarations adopted by the IGC 2007 are annexed to the Final Act, but not to the Treaty. The joint Declarations would still be politically but not legally binding on the member states as a whole. There are two groups of joint Declarations:
A. Declarations concerning provisions of the Treaties
B. Declarations concerning Protocols annexed to the Treaties
The Conference has adopted the following declarations annexed to this Final Act.
A. Declarations concerning provisions of the Treaties
1. Declaration concerning the Charter of Fundamental Rights of the European Union
2. Declaration on Article 6(2) of the Treaty on European Union
3. Declaration on Article 7a of the Treaty on European Union
4. Declaration on the composition of the European Parliament
5. Declaration on the political agreement by the European Council concerning the draft Decision on the composition of the European Parliament
6. Declaration on Articles 9 B(5) and (6), Articles 9 D(6) and (7), and Article 9 E of the Treaty on European Union
7. Declaration on Article 9 C(4) of the Treaty on European Union and Article 205(2) of the Treaty on the Functioning of the European Union
8. Declaration 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 of the Foreign Affairs Council
9. Declaration on Article 9 C(9) of the Treaty on European Union concerning the European Council decision on the exercise of the Presidency of the Council
10. Declaration on Article 9 D of the Treaty on European Union
11. Declaration on Article 9 D(6) and (7) of the Treaty on European Union
12. Declaration on Article 9 E of the Treaty on European Union
13. Declaration concerning the common foreign and security policy
14. Declaration concerning the common foreign and security policy
15. Declaration on Article 13a of the Treaty on European Union
16. Declaration on Article 53(2) of the Treaty on European Union
17. Declaration concerning primacy
18. Declaration in relation to the delimitation of competences
19. Declaration on Article 3 of the Treaty on the Functioning of the European Union
20. Declaration on Article 16 B of the Treaty on the Functioning of the European Union
21. Declaration on the protection of personal data in the fields of judicial cooperation in criminal matters and police cooperation
22. Declaration on Articles 42 and 63a of the Treaty on the Functioning of the European Union
23. Declaration on the second paragraph of Article 42 of the Treaty on the Functioning of the European Union
24. Declaration concerning the legal personality of the European Union
25. Declaration on Articles 61 H and 188 K of the Treaty on the Functioning of the European Union
26. Declaration on non-participation by a Member State in a measure based on Title IV of Part Three of the Treaty on the Functioning of the European Union
27. Declaration on Article 69 D(1), second subparagraph, of the Treaty on the Functioning of the European Union
28. Declaration on Article 78 of the Treaty on the Functioning of the European Union
29. Declaration on Article 87(2)(c) of the Treaty on the Functioning of the European Union
30. Declaration on Article 104 of the Treaty on the Functioning of the European Union
31. Declaration on Article 140 of the Treaty on the Functioning of the European Union
32. Declaration on Article 152(4)(c) of the Treaty on the Functioning of the European Union
33. Declaration on Article 158 of the Treaty on the Functioning of the European Union
34. Declaration on Article 163 of the Treaty on the Functioning of the European Union
35. Declaration on Article 176 A of the Treaty on the Functioning of the European Union
36. Declaration on Article 188 N of the Treaty on the Functioning of the European Union concerning the negotiation and conclusion of international agreements by Member States relating to the area of freedom, security and justice
37. Declaration on Article 188 R of the Treaty on the Functioning of the European Union
38. Declaration on Article 222 of the Treaty on the Functioning of the European Union regarding the number of Advocates-General in the Court of Justice
39. Declaration on Article 249 B of the Treaty on the Functioning of the European Union
40. Declaration on Article 280 D of the Treaty on the Functioning of the European Union
41. Declaration on Article 308 of the Treaty on the Functioning of the European Union
42. Declaration on Article 308 of the Treaty on the Functioning of the European Union
43. Declaration on Article 311a(6) of the Treaty on the Functioning of the European Union
B. Declarations concerning Protocols annexed to the Treaties
44. Declaration on Article 5 of the Protocol on the Schengen acquis integrated into the framework of the European Union
45. Declaration on Article 5(2) of the Protocol on the Schengen acquis integrated into the framework of the European Union
46. Declaration on Article 5(3) of the Protocol on the Schengen acquis integrated into the framework of the European Union
47. Declaration on Article 5(3), (4) and (5) of the Protocol on the Schengen acquis integrated into the framework of the European Union
48. Declaration concerning the Protocol on the position of Denmark
49. Declaration concerning Italy
50. Declaration concerning Article 10 of the Protocol on transitional provisions
***
Then there are the unilateral Declarations, by one or more member states, without legal force for the whole, but expressing the political intent of the declarants.
Furthermore, the Conference has noted the declarations listed hereafter and annexed to this Final Act:
51. Declaration by the Kingdom of Belgium on national Parliaments
52. Declaration by the Kingdom of Belgium, the Republic of Bulgaria, the Federal Republic of Germany, the Hellenic Republic, the Kingdom of Spain, the Italian Republic, the Republic of Cyprus, the Republic of Lithuania, the Grand-Duchy of Luxembourg, the Republic of Hungary, the Republic of Malta, the Republic of Austria, the Portuguese Republic, Romania, the Republic of Slovenia, and the Slovak Republic on the symbols of the European Union
53. Declaration by the Czech Republic on the Charter of Fundamental Rights of the European Union
54. Declaration by the Federal Republic of Germany, Ireland, the Republic of Hungary, the Republic of Austria and the Kingdom of Sweden
55. Declaration by the Kingdom of Spain and the United Kingdom of Great Britain and Northern Ireland
56. Declaration by Ireland on Article 3 of the Protocol on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice
57. Declaration by the Italian Republic on the composition of the European Parliament
58. Declaration by the Republic of Latvia, the Republic of Hungary and the Republic of Malta on the spelling of the name of the single currency in the Treaties
59. Declaration by the Kingdom of the Netherlands on Article 270a of the Treaty on the Functioning of the European Union
60. Declaration by the Kingdom of the Netherlands on Article 311a of the Treaty on the Functioning of the European Union
61. Declaration by the Republic of Poland on the Charter of Fundamental Rights of the European Union
62. Declaration by the Republic of Poland concerning the Protocol on the application of the Charter of Fundamental Rights of the European Union in relation to Poland and the United Kingdom
63. Declaration by the United Kingdom of Great Britain and Northern Ireland on the definition of the term ‘nationals’
64. Declaration by the United Kingdom of Great Britain and Northern Ireland on the franchise for elections to the European Parliament
65. Declaration by the United Kingdom of Great Britain and Northern Ireland on Article 61 H of the Treaty on the Functioning of the European Union
***
If my understanding is correct, the only legally binding addition to the Treaties themselves and the Protocols is the Annex containing the tables of equivalences. Thus, there is no change concerning the political nature of the Declarations annexed to the Final Act, but not to the Treaties.
Ralf Grahn
Sources:
UK House of Commons Library Research Paper 08/09, 24 January 2008: The Treaty of Lisbon: amendments to the Treaty on European Union
http://www.parliament.uk/commons/lib/research/rp2008/rp08-009.pdf
Government of Sweden, Regeringskansliet: Lissabonfördraget, Statsrådsberedningen, Departementsserien (Ds) Ds 2007:48, 20 december 2007
http://www.regeringen.se/sb/d/108/a/94981
Government of Denmark: Lov om aendring af lov om Danmarks tiltraedelse af De Europaeiske Faelleskaber og Den Europaeiske Union (Danmarks ratification af Lissabon-traktaten); Lovforslag nr. L 53, Fremsat den 9. januar 2008 af udenrigsministeren (Per Stig Møller); Bind III
http://www.eu-oplysningen.dk/upload/application/pdf/c510022c/BindIII.pdf
Tuesday, 5 February 2008
EU Treaty of Lisbon: Better out?
Is the European Union a prison of “We, the People” like the United States of America, where President Abraham Lincoln abolished slavery and secession without express authorisation by the Constitution? Or is the EU a prison of peoples like the former Soviet Union, where both secession and dissent were smothered until the empire imploded?
What if a member state of the European Union wanted to withdraw, and made a democratic decision to stake its future outside the EU?
There is no express provision for the final opt-out in the present Treaties, and they have been concluded for an unlimited period.
International treaties can, of course, be changed by mutual agreement. But failing common accord, could a “Better outside” decision be enforced unilaterally by a member state?
Some campaigners contend, from an internal point of view, that a sovereign nation (at least theirs) can do what it pleases and that a decision by Parliament would suffice (presumably without notification, negotiation or respect for treaty obligations).
Others have studied the matter more closely, taking into account the international community, and have read the law of treaties to find a reasoned response to this vexing question.
***
Let us take a look at what the Vienna Convention on the Law of Treaties, concluded 23 May 1969 and entered into force 27 January 1980, has to say about the existing state of international law (de lege lata), especially the doctrine ‘clausula rebus sic stantibus’ (things thus standing). As I understand it, a treaty may be revoked only under strict conditions: There has to be a fundamental change of circumstances, which constituted an essential basis of the consent, and this change causes a radical transformation of the obligations.
Article 62
Fundamental change of circumstances
1. A fundamental change of circumstances which has occurred with regard to those existing at the time of the conclusion of a treaty, and which was not foreseen by the parties, may not be invoked as a ground for terminating or withdrawing from the treaty unless:
(a) the existence of those circumstances constituted an essential basis of the consent of the parties to be bound by the treaty; and
(b) the effect of the change is radically to transform the extent of obligations still to be performed under the treaty.
2. A fundamental change of circumstances may not be invoked as a ground for terminating or withdrawing from a treaty:
(a) if the treaty establishes a boundary; or
(b) if the fundamental change is the result of a breach by the party invoking it either of an obligation under the treaty or of any other international obligation owed to any other party to the treaty.
3. If, under the foregoing paragraphs, a party may invoke a fundamental change of circumstances as a ground for terminating or withdrawing from a treaty it may also invoke the change as a ground for suspending the operation of the treaty.
***
There will in particular be … an Article on voluntary withdrawal from the Union, said the mandate for the intergovernmental conference (IGC 2007 Mandate, Council document 11218/07, point 16).
***
The IGC 2007 proceeded to fulfil its promise, by inserting the following Article 49a into the Treaty on European Union (TEU) in the Treaty of Lisbon (OJ 17.12.2007 C 306/39 and 40):
58) The following new Article 49 A shall be inserted:
‘Article 49 A
1. Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.
2. A Member State which decides to withdraw shall notify the European Council of its intention. In the light of the guidelines provided by the European Council, the Union shall negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union. That agreement shall be negotiated in accordance with Article 188 N(3) of the Treaty on the Functioning of the European Union. It shall be concluded on behalf of the Union by the Council, acting by a qualified majority, after obtaining the consent of the European Parliament.
3. The Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period.
4. For the purposes of paragraphs 2 and 3, the member of the European Council or of the Council representing the withdrawing Member State shall not participate in the discussions of the European Council or Council or in decisions concerning it.
A qualified majority shall be defined in accordance with Article 205(3)(b) of the Treaty on the Functioning of the European Union.
5. If a State which has withdrawn from the Union asks to rejoin, its request shall be subject to the procedure referred to in Article 49.’.
***
The current TEU is concluded for and unlimited period, Article 51, and so is the Treaty establishing the European Community, Article 312 (latest consolidated version of TEU and TEC in OJ 29.12.2006 C 321 E). There is no provision on leaving the European Union or the European Community (and there has been no concrete need for one, except for the Danish territory Greenland).
***
For the source of inspiration we go to the Convention and its draft Treaty on establishing a Constitution for Europe, Article I-59 (OJ 18.7.2003 C 169/22).
Article 59
Voluntary withdrawal from the Union
1. Any Member State may decide to withdraw from the European Union in accordance with its own constitutional requirements.
2. A Member State which decides to withdraw shall notify the European Council of its intention; the European Council shall examine that notification. In the light of the guidelines provided by the European Council, the Union shall negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union. That agreement shall be concluded on behalf of the Union by the Council of Ministers, acting by a qualified majority, after obtaining the consent of the European Parliament.
The representative of the withdrawing Member State shall not participate in Council of Ministers or European Council discussions or decisions concerning it.
3. The Constitution shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, decides to extend this period.
4. If a State which has withdrawn from the Union asks to rejoin, its request shall be subject to the procedure referred to in Article 57.
***
The IGC 2004 agreed on the following text, which became Article I-60 of the Treaty establishing a Constitution for Europe (OJ 16.12.2004 C 310/40):
Article I-60
Voluntary withdrawal from the Union
1. Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.
2. A Member State which decides to withdraw shall notify the European Council of its intention. In the light of the guidelines provided by the European Council, the Union shall negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union. That agreement shall be negotiated in accordance with Article III-325(3). It shall be concluded by the Council, acting by a qualified majority, after obtaining the consent of the European Parliament.
3. The Constitution shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period.
4. For the purposes of paragraphs 2 and 3, the member of the European Council or of the Council representing the withdrawing Member State shall not participate in the discussions of the European Council or Council or in European decisions concerning it.
A qualified majority shall be defined as at least 72 % of the members of the Council, representing the participating Member States, comprising at least 65 % of the population of these States.
5. If a State which has withdrawn from the Union asks to rejoin, its request shall be subject to the procedure referred to in Article I-58.
***
We can see that between the draft Constitution and the Constitutional Treaty there is a slight reordering of the text and the qualified majority was defined in the Constitution, but there is no substantial difference between the texts.
The differences between the Constitution and the Lisbon Treaty are only technical.
***
Let us take a look at the negotiation procedure referred to in Article 188n(3) of the Treaty on the Functioning of the European Union (TFEU) in the Reform Treaty (OJ 17,12,2007 C 306/96), under Title V International agreements:
Article 188n(3) TFEU
3. The Commission, or the High Representative of the Union for Foreign Affairs and Security Policy where the agreement envisaged relates exclusively or principally to the common foreign and security policy, shall submit recommendations to the Council, which shall adopt a decision authorising the opening of negotiations and, depending on the subject of the agreement envisaged, nominating the Union negotiator or the head of the Union's negotiating team.
***
A few comments by your glossator:
The European Union is founded on principles such as democracy and the rule of law, as well as respect for the competences of the member states and their constitutional systems.
It would, in my view, be inconceivable for the European Union to disregard a democratic decision by a member state to secede. In the context of the EU democratic legitimacy constitutes a basic requirement for accession, and a subsequent clearly expressed withdrawal of consent would entail a fundamental change of circumstances (even if it depended on the party itself).
Thus, legally the essence of the Lisbon Treaty Article 49a TEU on voluntary withdrawal from the EU is redundant, since it adds nothing of substance to the existing state of the law.
The Treaty of Lisbon is, in effect, only a codification of law as it stands.
Outside the strictly legal sphere, the provision clarifies matters making it easy to point at the new Article 49a TEU, where the right to withdraw from the EU voluntarily is expressly stated. At least the more level-headed critics will have to admit that there is no Babylonian captivity within the European Union.
Then, one can ask how much the procedural provisions actually achieve.
Notification of the intention is such a basic requirement as to be almost self-evident in international relations.
In practice, the relations between the seceding member state and the EU are so manifold as to require negotiations. The European Council provides guidelines, the Council makes decisions and a team conducts the negotiations. These would resemble ‘reverse engineering’ of an accession process, where potentially the whole ‘acquis communautaire’ would have to be de-negotiated, Chapter by Chapter.
It is hard to believe that the government of a seceding state would approach these negotiations without a clear own idea of how it wanted to shape its future relations with the EU, even if the basic decision to withdraw were the accidental result of a referendum.
Anyway, the negotiated withdrawal is just an option. Failing negotiations the membership would end two years after the notification (if no extension were to be agreed).
I have seen someone rail against the exclusion of the seceding state from the EU decision making on withdrawal (but I cannot recall the exact posting). I must admit that I find it hard to understand how a voluntary secessionist could form part of both teams, its own with the purpose to transform itself into an outsider and the EU team negotiating the future relations with that state as an element of shaping the Union’s relations with the outside world. Here too, one could think of secession as reverse engineering of accession, with each party on its side of the table.
Should the seceded state come to regret its ‘divorce’, it would have to conclude the same prenuptials and nuptials as other accession states. Since the Lisbon Treaty does not offer a right to accede, only to apply, there would be no guarantee of success, just as in the divorce case.
Ralf Grahn
What if a member state of the European Union wanted to withdraw, and made a democratic decision to stake its future outside the EU?
There is no express provision for the final opt-out in the present Treaties, and they have been concluded for an unlimited period.
International treaties can, of course, be changed by mutual agreement. But failing common accord, could a “Better outside” decision be enforced unilaterally by a member state?
Some campaigners contend, from an internal point of view, that a sovereign nation (at least theirs) can do what it pleases and that a decision by Parliament would suffice (presumably without notification, negotiation or respect for treaty obligations).
Others have studied the matter more closely, taking into account the international community, and have read the law of treaties to find a reasoned response to this vexing question.
***
Let us take a look at what the Vienna Convention on the Law of Treaties, concluded 23 May 1969 and entered into force 27 January 1980, has to say about the existing state of international law (de lege lata), especially the doctrine ‘clausula rebus sic stantibus’ (things thus standing). As I understand it, a treaty may be revoked only under strict conditions: There has to be a fundamental change of circumstances, which constituted an essential basis of the consent, and this change causes a radical transformation of the obligations.
Article 62
Fundamental change of circumstances
1. A fundamental change of circumstances which has occurred with regard to those existing at the time of the conclusion of a treaty, and which was not foreseen by the parties, may not be invoked as a ground for terminating or withdrawing from the treaty unless:
(a) the existence of those circumstances constituted an essential basis of the consent of the parties to be bound by the treaty; and
(b) the effect of the change is radically to transform the extent of obligations still to be performed under the treaty.
2. A fundamental change of circumstances may not be invoked as a ground for terminating or withdrawing from a treaty:
(a) if the treaty establishes a boundary; or
(b) if the fundamental change is the result of a breach by the party invoking it either of an obligation under the treaty or of any other international obligation owed to any other party to the treaty.
3. If, under the foregoing paragraphs, a party may invoke a fundamental change of circumstances as a ground for terminating or withdrawing from a treaty it may also invoke the change as a ground for suspending the operation of the treaty.
***
There will in particular be … an Article on voluntary withdrawal from the Union, said the mandate for the intergovernmental conference (IGC 2007 Mandate, Council document 11218/07, point 16).
***
The IGC 2007 proceeded to fulfil its promise, by inserting the following Article 49a into the Treaty on European Union (TEU) in the Treaty of Lisbon (OJ 17.12.2007 C 306/39 and 40):
58) The following new Article 49 A shall be inserted:
‘Article 49 A
1. Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.
2. A Member State which decides to withdraw shall notify the European Council of its intention. In the light of the guidelines provided by the European Council, the Union shall negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union. That agreement shall be negotiated in accordance with Article 188 N(3) of the Treaty on the Functioning of the European Union. It shall be concluded on behalf of the Union by the Council, acting by a qualified majority, after obtaining the consent of the European Parliament.
3. The Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period.
4. For the purposes of paragraphs 2 and 3, the member of the European Council or of the Council representing the withdrawing Member State shall not participate in the discussions of the European Council or Council or in decisions concerning it.
A qualified majority shall be defined in accordance with Article 205(3)(b) of the Treaty on the Functioning of the European Union.
5. If a State which has withdrawn from the Union asks to rejoin, its request shall be subject to the procedure referred to in Article 49.’.
***
The current TEU is concluded for and unlimited period, Article 51, and so is the Treaty establishing the European Community, Article 312 (latest consolidated version of TEU and TEC in OJ 29.12.2006 C 321 E). There is no provision on leaving the European Union or the European Community (and there has been no concrete need for one, except for the Danish territory Greenland).
***
For the source of inspiration we go to the Convention and its draft Treaty on establishing a Constitution for Europe, Article I-59 (OJ 18.7.2003 C 169/22).
Article 59
Voluntary withdrawal from the Union
1. Any Member State may decide to withdraw from the European Union in accordance with its own constitutional requirements.
2. A Member State which decides to withdraw shall notify the European Council of its intention; the European Council shall examine that notification. In the light of the guidelines provided by the European Council, the Union shall negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union. That agreement shall be concluded on behalf of the Union by the Council of Ministers, acting by a qualified majority, after obtaining the consent of the European Parliament.
The representative of the withdrawing Member State shall not participate in Council of Ministers or European Council discussions or decisions concerning it.
3. The Constitution shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, decides to extend this period.
4. If a State which has withdrawn from the Union asks to rejoin, its request shall be subject to the procedure referred to in Article 57.
***
The IGC 2004 agreed on the following text, which became Article I-60 of the Treaty establishing a Constitution for Europe (OJ 16.12.2004 C 310/40):
Article I-60
Voluntary withdrawal from the Union
1. Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.
2. A Member State which decides to withdraw shall notify the European Council of its intention. In the light of the guidelines provided by the European Council, the Union shall negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union. That agreement shall be negotiated in accordance with Article III-325(3). It shall be concluded by the Council, acting by a qualified majority, after obtaining the consent of the European Parliament.
3. The Constitution shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period.
4. For the purposes of paragraphs 2 and 3, the member of the European Council or of the Council representing the withdrawing Member State shall not participate in the discussions of the European Council or Council or in European decisions concerning it.
A qualified majority shall be defined as at least 72 % of the members of the Council, representing the participating Member States, comprising at least 65 % of the population of these States.
5. If a State which has withdrawn from the Union asks to rejoin, its request shall be subject to the procedure referred to in Article I-58.
***
We can see that between the draft Constitution and the Constitutional Treaty there is a slight reordering of the text and the qualified majority was defined in the Constitution, but there is no substantial difference between the texts.
The differences between the Constitution and the Lisbon Treaty are only technical.
***
Let us take a look at the negotiation procedure referred to in Article 188n(3) of the Treaty on the Functioning of the European Union (TFEU) in the Reform Treaty (OJ 17,12,2007 C 306/96), under Title V International agreements:
Article 188n(3) TFEU
3. The Commission, or the High Representative of the Union for Foreign Affairs and Security Policy where the agreement envisaged relates exclusively or principally to the common foreign and security policy, shall submit recommendations to the Council, which shall adopt a decision authorising the opening of negotiations and, depending on the subject of the agreement envisaged, nominating the Union negotiator or the head of the Union's negotiating team.
***
A few comments by your glossator:
The European Union is founded on principles such as democracy and the rule of law, as well as respect for the competences of the member states and their constitutional systems.
It would, in my view, be inconceivable for the European Union to disregard a democratic decision by a member state to secede. In the context of the EU democratic legitimacy constitutes a basic requirement for accession, and a subsequent clearly expressed withdrawal of consent would entail a fundamental change of circumstances (even if it depended on the party itself).
Thus, legally the essence of the Lisbon Treaty Article 49a TEU on voluntary withdrawal from the EU is redundant, since it adds nothing of substance to the existing state of the law.
The Treaty of Lisbon is, in effect, only a codification of law as it stands.
Outside the strictly legal sphere, the provision clarifies matters making it easy to point at the new Article 49a TEU, where the right to withdraw from the EU voluntarily is expressly stated. At least the more level-headed critics will have to admit that there is no Babylonian captivity within the European Union.
Then, one can ask how much the procedural provisions actually achieve.
Notification of the intention is such a basic requirement as to be almost self-evident in international relations.
In practice, the relations between the seceding member state and the EU are so manifold as to require negotiations. The European Council provides guidelines, the Council makes decisions and a team conducts the negotiations. These would resemble ‘reverse engineering’ of an accession process, where potentially the whole ‘acquis communautaire’ would have to be de-negotiated, Chapter by Chapter.
It is hard to believe that the government of a seceding state would approach these negotiations without a clear own idea of how it wanted to shape its future relations with the EU, even if the basic decision to withdraw were the accidental result of a referendum.
Anyway, the negotiated withdrawal is just an option. Failing negotiations the membership would end two years after the notification (if no extension were to be agreed).
I have seen someone rail against the exclusion of the seceding state from the EU decision making on withdrawal (but I cannot recall the exact posting). I must admit that I find it hard to understand how a voluntary secessionist could form part of both teams, its own with the purpose to transform itself into an outsider and the EU team negotiating the future relations with that state as an element of shaping the Union’s relations with the outside world. Here too, one could think of secession as reverse engineering of accession, with each party on its side of the table.
Should the seceded state come to regret its ‘divorce’, it would have to conclude the same prenuptials and nuptials as other accession states. Since the Lisbon Treaty does not offer a right to accede, only to apply, there would be no guarantee of success, just as in the divorce case.
Ralf Grahn
Monday, 4 February 2008
EU Treaty of Lisbon: New members
The intergovernmental conference (IGC 2007) was mandated to do the following (IGC 2007 Mandate, Council document 11218/07, point 16):
“In Article 49, on conditions of eligibility and the procedure for accession to the Union, the reference to the principles will be replaced by a reference to the Union’s values and the addition of a commitment to promoting such values, an obligation to notify the European Parliament and national parliaments of an application for accession to the Union and a reference to take into account the conditions of eligibility agreed upon by the European Council (see Annex 1, Title VI).”
Annex 1 to the Mandate is called Amendments to the EU Treaty, and under Title VI – Final provisions, point 9), it clarified:
“In Article 49, first subparagraph, insertion of a new last sentence, the second subparagraph remaining unchanged:
Article 49
Conditions of eligibility and procedure for accession to the Union
Any European State which respects the values referred to in Article 2 and is committed to promoting them may apply to become a member of the Union. The European Parliament and national Parliaments shall be notified of this application. The applicant State shall address its application to the Council, which shall act unanimously after consulting the Commission and after receiving the assent of the European Parliament, which shall act by an absolute majority of its component members. The conditions of eligibility agreed upon by the European Council shall be taken into account.”
***
Not much room for creativity there, but we check what the IGC 2007 agreed on (OJ 17.12.2007 C 306/39), in addition to its reader-unfriendly proclivity:
57) The first paragraph of Article 49 shall be amended as follows:
(a) in the first sentence, the words ‘which respects the principles set out in Article 6(1) may
apply’ shall be replaced by ‘which respects the values referred to in Article 1a and is
committed to promoting them may apply’;
(b) in the second sentence, the words ‘It shall address its application to the Council, which
shall act unanimously’ shall be replaced by ‘The European Parliament and national
Parliaments shall be notified of this application. The applicant State shall address its
application to the Council, which shall act unanimously’; the word ‘assent’ shall be
replaced by ‘consent’ and the words ‘an absolute majority’ shall be replaced by ‘a majority’;
(c) the following sentence shall be added at the end of the paragraph: ‘The conditions of
eligibility agreed upon by the European Council shall be taken into account.’.
***
The amended and consolidated Article 49 TEU has to be constructed, starting from the current Article 49 (latest consolidated version of the Treaty on European Union and the Treaty establishing the European Community in OJ 29.12.2006 C 321 E/34 and 35):
Article 49
Any European State which respects the principles set out in Article 6(1) may apply to become
a member of the Union. It shall address its application to the Council, which shall act unanimously after consulting the Commission and after receiving the assent of the European Parliament, which shall act by an absolute majority of its component members.
The conditions of admission and the adjustments to the Treaties on which the Union is founded,
which such admission entails, shall be the subject of an agreement between the Member States and the applicant State. This agreement shall be submitted for ratification by all the contracting States in accordance with their respective constitutional requirements.
***
Having inserted the IGC’s amendments we end up with the following consolidated Lisbon Treaty version of Article 49 TEU:
Article 49
Any European State which respects the values referred to in Article 1a and is committed to promoting them may apply to become a member of the Union. The European Parliament and national Parliaments shall be notified of this application. The applicant State shall address its application to the Council, which shall act unanimously after consulting the Commission and after receiving the consent of the European Parliament, which shall act by a majority of its component members. The conditions of eligibility agreed upon by the European Council shall be taken into account.
The conditions of admission and the adjustments to the Treaties on which the Union is founded,
which such admission entails, shall be the subject of an agreement between the Member States and the applicant State. This agreement shall be submitted for ratification by all the contracting States in accordance with their respective constitutional requirements.
***
The pedantically inclined may have noticed a slight change of terminology compared to the IGC 2007 Mandate (and the present Article 49): EP ‘consent’ has replaced ‘assent’ and a ‘majority’ has taken the place of an ‘absolute majority’.
Otherwise the Heads of State or Government seem to have been true to their word, from start to finish.
***
What did the European Convention have to say on membership in the draft Treaty establishing a Constitution for Europe?
We go to Article I-57, under Title IX Union membership (OJ 18.7.2003 C 169/21):
Article 57
Conditions of eligibility and procedure for accession to
the Union
1. The Union shall be open to all European States which respect the values referred to in Article 2, and are committed to promoting them together.
2. Any European State which wishes to become a member of the Union shall address its application to the Council of Ministers. The European Parliament and the Member States' national Parliaments shall be notified of this application. The Council of Ministers shall act unanimously after consulting the Commission and after obtaining the consent of the European Parliament. The conditions and arrangements for admission shall be the subject of an agreement between the Member States and the candidate State. That agreement shall be subject to ratification by each contracting State, in accordance with its respective constitutional requirements.
***
In the Treaty establishing a Constitution for Europe the member state governments signed up to the following Article I-58, under Title IX Union membership (OJ 16.12.2004 C 310/38):
Article I-58
Conditions of eligibility and procedure for accession to the Union
1. The Union shall be open to all European States which respect the values referred to in Article I-2, and are committed to promoting them together.
2. Any European State which wishes to become a member of the Union shall address its application to the Council. The European Parliament and national Parliaments shall be notified of this application. The Council shall act unanimously after consulting the Commission and after obtaining the consent of the European Parliament, which shall act by a majority of its component members. The conditions and arrangements for admission shall be the subject of an agreement between the Member States and the candidate State. That agreement shall be subject to ratification by each contracting State, in accordance with its respective constitutional requirements.
***
Strictly speaking, Article 49 of the current Treaty on European Union (TEU) only offers any European State which respects the EU’s principles the right to apply for membership. We have to assume that even minute changes of the wording have significance in areas as politically charged as the membership criteria.
The Convention made two changes:
First, it proposed that the EU ‘shall be open to all European States’. This is extremely close to a right of accession, given that the criteria for membership are fulfilled.
Second, the Convention raised the bar for accession.
The existing principles set out in Article 6(1) TEU are: The 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.
The ‘values’ might be construed to have a more profound meaning than the ‘principles’, and the Convention added a few aspects in its Article I-2 The Union's values: The Union is founded on the values of respect for human dignity, liberty, democracy, equality, the rule of law and respect for human rights. These values are common to the Member States in a society of pluralism, tolerance, justice, solidarity and non-discrimination.
Human dignity and equality in the first sentence, as well as pluralism, tolerance, justice, solidarity and non-discrimination in the second sentence widened the scope of the values and consequently the criteria for membership.
The second innovation was to require active promotion of the Union’s values together with the other member states.
***
Going from the draft Constitutional Treaty to the Constitution we see that the IGC 2004 added about the European Parliament ‘which shall act by a majority of its component members’. The rest of the differences are technical.
***
In part, the IGC 2007 went back to square one. Values and (active) promotion are retained, but there is no right to accede, only to apply for membership. The values referred to have expanded to take into account the rights of persons belonging to minorities (and the present connotations of ‘liberty’ may have led to the adoption of ‘freedom’).
In addition, the Reform Treaty brings the conditions of eligibility agreed upon by the European Council into the Treaty.
At the present time, these conditions of eligibility are the ones known as the Copenhagen criteria, adopted by the European Council 21-22 June 1993. According to the Conclusions of the Presidency (SN 180/1/93 REV 1):
“Membership requires that the candidate country has achieved stability of institutions guaranteeing democracy, the rule of law, human rights and respect for and protection of minorities, the existence of a functioning market economy as well as the capacity to cope with competitive pressure and market forces within the Union. Membership presupposes the candidate's ability to take on the obligations of membership including adherence to the aims of political, economic and monetary union.
The Union's capacity to absorb new members, while maintaining the momentum of European integration, is also an important consideration in the general interest of both the Union and the candidate countries.”
***
To broach a topical issue: The expansion of membership criteria is not going to make Turkey’s or the other applicant states’ quest any easier, since many difficult questions like human dignity, equality and minority rights have entered the picture in the shape of values to be promoted, as well as the binding nature of the Copenhagen criteria.
On the other hand, the definition ‘European State’ has not changed one iota from the existing TEU, via the Convention and the Constitution to the Lisbon Treaty.
It would be absurd to contend that Turkey is geographically less European now than when it was accepted as an applicant country.
***
An innovation retained from the Convention is the mandatory notification of the European Parliament and national parliaments of an application. In principle, the national parliaments have been officially seized of the matter only at the end of the process, when the accession Treaty has come up for ratification.
Ralf Grahn
“In Article 49, on conditions of eligibility and the procedure for accession to the Union, the reference to the principles will be replaced by a reference to the Union’s values and the addition of a commitment to promoting such values, an obligation to notify the European Parliament and national parliaments of an application for accession to the Union and a reference to take into account the conditions of eligibility agreed upon by the European Council (see Annex 1, Title VI).”
Annex 1 to the Mandate is called Amendments to the EU Treaty, and under Title VI – Final provisions, point 9), it clarified:
“In Article 49, first subparagraph, insertion of a new last sentence, the second subparagraph remaining unchanged:
Article 49
Conditions of eligibility and procedure for accession to the Union
Any European State which respects the values referred to in Article 2 and is committed to promoting them may apply to become a member of the Union. The European Parliament and national Parliaments shall be notified of this application. The applicant State shall address its application to the Council, which shall act unanimously after consulting the Commission and after receiving the assent of the European Parliament, which shall act by an absolute majority of its component members. The conditions of eligibility agreed upon by the European Council shall be taken into account.”
***
Not much room for creativity there, but we check what the IGC 2007 agreed on (OJ 17.12.2007 C 306/39), in addition to its reader-unfriendly proclivity:
57) The first paragraph of Article 49 shall be amended as follows:
(a) in the first sentence, the words ‘which respects the principles set out in Article 6(1) may
apply’ shall be replaced by ‘which respects the values referred to in Article 1a and is
committed to promoting them may apply’;
(b) in the second sentence, the words ‘It shall address its application to the Council, which
shall act unanimously’ shall be replaced by ‘The European Parliament and national
Parliaments shall be notified of this application. The applicant State shall address its
application to the Council, which shall act unanimously’; the word ‘assent’ shall be
replaced by ‘consent’ and the words ‘an absolute majority’ shall be replaced by ‘a majority’;
(c) the following sentence shall be added at the end of the paragraph: ‘The conditions of
eligibility agreed upon by the European Council shall be taken into account.’.
***
The amended and consolidated Article 49 TEU has to be constructed, starting from the current Article 49 (latest consolidated version of the Treaty on European Union and the Treaty establishing the European Community in OJ 29.12.2006 C 321 E/34 and 35):
Article 49
Any European State which respects the principles set out in Article 6(1) may apply to become
a member of the Union. It shall address its application to the Council, which shall act unanimously after consulting the Commission and after receiving the assent of the European Parliament, which shall act by an absolute majority of its component members.
The conditions of admission and the adjustments to the Treaties on which the Union is founded,
which such admission entails, shall be the subject of an agreement between the Member States and the applicant State. This agreement shall be submitted for ratification by all the contracting States in accordance with their respective constitutional requirements.
***
Having inserted the IGC’s amendments we end up with the following consolidated Lisbon Treaty version of Article 49 TEU:
Article 49
Any European State which respects the values referred to in Article 1a and is committed to promoting them may apply to become a member of the Union. The European Parliament and national Parliaments shall be notified of this application. The applicant State shall address its application to the Council, which shall act unanimously after consulting the Commission and after receiving the consent of the European Parliament, which shall act by a majority of its component members. The conditions of eligibility agreed upon by the European Council shall be taken into account.
The conditions of admission and the adjustments to the Treaties on which the Union is founded,
which such admission entails, shall be the subject of an agreement between the Member States and the applicant State. This agreement shall be submitted for ratification by all the contracting States in accordance with their respective constitutional requirements.
***
The pedantically inclined may have noticed a slight change of terminology compared to the IGC 2007 Mandate (and the present Article 49): EP ‘consent’ has replaced ‘assent’ and a ‘majority’ has taken the place of an ‘absolute majority’.
Otherwise the Heads of State or Government seem to have been true to their word, from start to finish.
***
What did the European Convention have to say on membership in the draft Treaty establishing a Constitution for Europe?
We go to Article I-57, under Title IX Union membership (OJ 18.7.2003 C 169/21):
Article 57
Conditions of eligibility and procedure for accession to
the Union
1. The Union shall be open to all European States which respect the values referred to in Article 2, and are committed to promoting them together.
2. Any European State which wishes to become a member of the Union shall address its application to the Council of Ministers. The European Parliament and the Member States' national Parliaments shall be notified of this application. The Council of Ministers shall act unanimously after consulting the Commission and after obtaining the consent of the European Parliament. The conditions and arrangements for admission shall be the subject of an agreement between the Member States and the candidate State. That agreement shall be subject to ratification by each contracting State, in accordance with its respective constitutional requirements.
***
In the Treaty establishing a Constitution for Europe the member state governments signed up to the following Article I-58, under Title IX Union membership (OJ 16.12.2004 C 310/38):
Article I-58
Conditions of eligibility and procedure for accession to the Union
1. The Union shall be open to all European States which respect the values referred to in Article I-2, and are committed to promoting them together.
2. Any European State which wishes to become a member of the Union shall address its application to the Council. The European Parliament and national Parliaments shall be notified of this application. The Council shall act unanimously after consulting the Commission and after obtaining the consent of the European Parliament, which shall act by a majority of its component members. The conditions and arrangements for admission shall be the subject of an agreement between the Member States and the candidate State. That agreement shall be subject to ratification by each contracting State, in accordance with its respective constitutional requirements.
***
Strictly speaking, Article 49 of the current Treaty on European Union (TEU) only offers any European State which respects the EU’s principles the right to apply for membership. We have to assume that even minute changes of the wording have significance in areas as politically charged as the membership criteria.
The Convention made two changes:
First, it proposed that the EU ‘shall be open to all European States’. This is extremely close to a right of accession, given that the criteria for membership are fulfilled.
Second, the Convention raised the bar for accession.
The existing principles set out in Article 6(1) TEU are: The 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.
The ‘values’ might be construed to have a more profound meaning than the ‘principles’, and the Convention added a few aspects in its Article I-2 The Union's values: The Union is founded on the values of respect for human dignity, liberty, democracy, equality, the rule of law and respect for human rights. These values are common to the Member States in a society of pluralism, tolerance, justice, solidarity and non-discrimination.
Human dignity and equality in the first sentence, as well as pluralism, tolerance, justice, solidarity and non-discrimination in the second sentence widened the scope of the values and consequently the criteria for membership.
The second innovation was to require active promotion of the Union’s values together with the other member states.
***
Going from the draft Constitutional Treaty to the Constitution we see that the IGC 2004 added about the European Parliament ‘which shall act by a majority of its component members’. The rest of the differences are technical.
***
In part, the IGC 2007 went back to square one. Values and (active) promotion are retained, but there is no right to accede, only to apply for membership. The values referred to have expanded to take into account the rights of persons belonging to minorities (and the present connotations of ‘liberty’ may have led to the adoption of ‘freedom’).
In addition, the Reform Treaty brings the conditions of eligibility agreed upon by the European Council into the Treaty.
At the present time, these conditions of eligibility are the ones known as the Copenhagen criteria, adopted by the European Council 21-22 June 1993. According to the Conclusions of the Presidency (SN 180/1/93 REV 1):
“Membership requires that the candidate country has achieved stability of institutions guaranteeing democracy, the rule of law, human rights and respect for and protection of minorities, the existence of a functioning market economy as well as the capacity to cope with competitive pressure and market forces within the Union. Membership presupposes the candidate's ability to take on the obligations of membership including adherence to the aims of political, economic and monetary union.
The Union's capacity to absorb new members, while maintaining the momentum of European integration, is also an important consideration in the general interest of both the Union and the candidate countries.”
***
To broach a topical issue: The expansion of membership criteria is not going to make Turkey’s or the other applicant states’ quest any easier, since many difficult questions like human dignity, equality and minority rights have entered the picture in the shape of values to be promoted, as well as the binding nature of the Copenhagen criteria.
On the other hand, the definition ‘European State’ has not changed one iota from the existing TEU, via the Convention and the Constitution to the Lisbon Treaty.
It would be absurd to contend that Turkey is geographically less European now than when it was accepted as an applicant country.
***
An innovation retained from the Convention is the mandatory notification of the European Parliament and national parliaments of an application. In principle, the national parliaments have been officially seized of the matter only at the end of the process, when the accession Treaty has come up for ratification.
Ralf Grahn
Sunday, 3 February 2008
EU Treaty of Lisbon: Treaty revision procedures
The Treaty of Lisbon marks a stage in the development of the European Union (EU). In spite of evolving internal decision making rules and democratic elements in EU law beyond the scope of ordinary international organisations, the EU remains an international organisation based on treaty law.
The member states are still the “masters of the Treaties”, holding on to the ultimate power of Treaty change (German: Kompetenz-Kompetenz).
Still, the Lisbon Treaty rules for amending the Treaties refine and develop the current Treaty provisions.
***
The Convention method, used twice before, is introduced as the ordinary revision procedure. As a procedural question, the European Council may decide by simple majority on a Convention to be convened, but the Convention’s proposals are decided on by a unanimous intergovernmental conference (IGC), and the resulting Treaty amendments have to be ratified by all member states.
The IGC may be called without a Convention if the extent of the proposed amendments does not justify convening one.
The Treaties can be revised to increase or to reduce the powers of the EU. The express mentioning of the possibility to decrease EU competences is a novelty.
***
The Reform Treaty introduces some elements of flexibility into less sensitive areas of the Treaties. Two simplified revision procedures are introduced:
1) Provisions of Part 3 of the Treaty on the Functioning of the European Union (TFEU), Union policies and internal actions, can be revised without increasing the competences conferred on the EU in the Treaties. Unanimous decision by the European Council and approval by the member states is required. The European Parliament, the Commission (and the European Central Bank) are consulted.
2) ‘Passerelle’ or enabling clauses opening up for more effective or democratic and transparent decision making:
2a) A move from unanimity to qualified majority voting (QMV) in the Council within the TFEU (except in questions excluded by Article 308a TFEU) or the common foreign and security policy (CFSP), except in decisions with military implications or in the area of defence. Absence of opposition from member state parliaments is required for the final unanimous decision by the European Council. The European Parliament needs to give its consent.
2b) A move from special legislative procedure to the ordinary legislative procedure within the TFEU (except in questions excluded by Article 308a TFEU), thereby widening the scope for co-legislation and democratic accountability through the European Parliament. Absence of opposition from member state parliaments is required for the final unanimous decision by the European Council. The European Parliament needs to give its consent.
***
The intergovernmental conference (IGC 2007) agreed on the following hefty Article 48 of the Treaty on European Union (TEU) on Treaty revision procedures (OJ 17.12.2007 C 306/37-39):
56) Article 48 shall be replaced by the following:
1. The Treaties may be amended in accordance with an ordinary revision procedure. They may also be amended in accordance with simplified revision procedures.
Ordinary revision procedure
2. The Government of any Member State, the European Parliament or the Commission may submit to the Council proposals for the amendment of the Treaties. These proposals may, inter alia, serve either to increase or to reduce the competences conferred on the Union in the Treaties. These proposals shall be submitted to the European Council by the Council and the national Parliaments shall be notified.
3. If the European Council, after consulting the European Parliament and the Commission, adopts by a simple majority a decision in favour of examining the proposed amendments, the President of the European Council shall convene a Convention composed of representatives of the national Parliaments, of the Heads of State or Government of the Member States, of the European Parliament and of the Commission. The European Central Bank shall also be consulted in the case of institutional changes in the monetary area. The Convention shall examine the proposals for amendments and shall adopt by consensus a recommendation to a conference of representatives of the governments of the Member States as provided for in paragraph 4.
The European Council may decide by a simple majority, after obtaining the consent of the European Parliament, not to convene a Convention should this not be justified by the extent of the proposed amendments. In the latter case, the European Council shall define the terms of reference for a conference of representatives of the governments of the Member States.
4. A conference of representatives of the governments of the Member States shall be convened by the President of the Council for the purpose of determining by common accord the amendments to be made to the Treaties.
The amendments shall enter into force after being ratified by all the Member States in accordance with their respective constitutional requirements.
5. If, two years after the signature of a treaty amending the Treaties, four fifths of the Member States have ratified it and one or more Member States have encountered difficulties in proceeding with ratification, the matter shall be referred to the European Council.
Simplified revision procedures
The member states are still the “masters of the Treaties”, holding on to the ultimate power of Treaty change (German: Kompetenz-Kompetenz).
Still, the Lisbon Treaty rules for amending the Treaties refine and develop the current Treaty provisions.
***
The Convention method, used twice before, is introduced as the ordinary revision procedure. As a procedural question, the European Council may decide by simple majority on a Convention to be convened, but the Convention’s proposals are decided on by a unanimous intergovernmental conference (IGC), and the resulting Treaty amendments have to be ratified by all member states.
The IGC may be called without a Convention if the extent of the proposed amendments does not justify convening one.
The Treaties can be revised to increase or to reduce the powers of the EU. The express mentioning of the possibility to decrease EU competences is a novelty.
***
The Reform Treaty introduces some elements of flexibility into less sensitive areas of the Treaties. Two simplified revision procedures are introduced:
1) Provisions of Part 3 of the Treaty on the Functioning of the European Union (TFEU), Union policies and internal actions, can be revised without increasing the competences conferred on the EU in the Treaties. Unanimous decision by the European Council and approval by the member states is required. The European Parliament, the Commission (and the European Central Bank) are consulted.
2) ‘Passerelle’ or enabling clauses opening up for more effective or democratic and transparent decision making:
2a) A move from unanimity to qualified majority voting (QMV) in the Council within the TFEU (except in questions excluded by Article 308a TFEU) or the common foreign and security policy (CFSP), except in decisions with military implications or in the area of defence. Absence of opposition from member state parliaments is required for the final unanimous decision by the European Council. The European Parliament needs to give its consent.
2b) A move from special legislative procedure to the ordinary legislative procedure within the TFEU (except in questions excluded by Article 308a TFEU), thereby widening the scope for co-legislation and democratic accountability through the European Parliament. Absence of opposition from member state parliaments is required for the final unanimous decision by the European Council. The European Parliament needs to give its consent.
***
The intergovernmental conference (IGC 2007) agreed on the following hefty Article 48 of the Treaty on European Union (TEU) on Treaty revision procedures (OJ 17.12.2007 C 306/37-39):
56) Article 48 shall be replaced by the following:
1. The Treaties may be amended in accordance with an ordinary revision procedure. They may also be amended in accordance with simplified revision procedures.
Ordinary revision procedure
2. The Government of any Member State, the European Parliament or the Commission may submit to the Council proposals for the amendment of the Treaties. These proposals may, inter alia, serve either to increase or to reduce the competences conferred on the Union in the Treaties. These proposals shall be submitted to the European Council by the Council and the national Parliaments shall be notified.
3. If the European Council, after consulting the European Parliament and the Commission, adopts by a simple majority a decision in favour of examining the proposed amendments, the President of the European Council shall convene a Convention composed of representatives of the national Parliaments, of the Heads of State or Government of the Member States, of the European Parliament and of the Commission. The European Central Bank shall also be consulted in the case of institutional changes in the monetary area. The Convention shall examine the proposals for amendments and shall adopt by consensus a recommendation to a conference of representatives of the governments of the Member States as provided for in paragraph 4.
The European Council may decide by a simple majority, after obtaining the consent of the European Parliament, not to convene a Convention should this not be justified by the extent of the proposed amendments. In the latter case, the European Council shall define the terms of reference for a conference of representatives of the governments of the Member States.
4. A conference of representatives of the governments of the Member States shall be convened by the President of the Council for the purpose of determining by common accord the amendments to be made to the Treaties.
The amendments shall enter into force after being ratified by all the Member States in accordance with their respective constitutional requirements.
5. If, two years after the signature of a treaty amending the Treaties, four fifths of the Member States have ratified it and one or more Member States have encountered difficulties in proceeding with ratification, the matter shall be referred to the European Council.
Simplified revision procedures
6. The Government of any Member State, the European Parliament or the Commission may submit to the European Council proposals for revising all or part of the provisions of Part Three of the Treaty on the Functioning of the European Union relating to the internal policies and action of the Union.
The European Council may adopt a decision amending all or part of the provisions of Part Three of the Treaty on the Functioning of the European Union. The European Council shall act by unanimity after consulting the European Parliament and the Commission, and the European Central Bank in the case of institutional changes in the monetary area. That decision shall not enter into force until it is approved by the Member States in accordance with their respective constitutional requirements.
The decision referred to in the second subparagraph shall not increase the competences conferred on the Union in the Treaties.
7. Where the Treaty on the Functioning of the European Union or Title V of this Treaty provides for the Council to act by unanimity in a given area or case, the European Council may adopt a decision authorising the Council to act by a qualified majority in that area or in that case. This subparagraph shall not apply to decisions with military implications or those in the area of defence.
Where the Treaty on the Functioning of the European Union provides for legislative acts to be adopted by the Council in accordance with a special legislative procedure, the European Council may adopt a decision allowing for the adoption of such acts in accordance with the ordinary legislative procedure.
Any initiative taken by the European Council on the basis of the first or the second subparagraph shall be notified to the national Parliaments. If a national Parliament makes known its opposition within six months of the date of such notification, the decision referred to in the first or the second subparagraph shall not be adopted. In the absence of opposition, the European Council may adopt the decision.
For the adoption of the decisions referred to in the first and second subparagraphs, the European Council shall act by unanimity after obtaining the consent of the European Parliament, which shall be given by a majority of its component members.
***
In order to compare the new Article 48 TEU with existing provisions, we turn to Article 48 TEU to be replaced, under Title VIII Final provisions (latest consolidated version of TEU and TEC in OJ 29.12.2006 C 321 E/34):
Article 48
The government of any Member State or the Commission may submit to the Council proposals for the amendment of the Treaties on which the Union is founded.
If the Council, after consulting the European Parliament and, where appropriate, the Commission, delivers an opinion in favour of calling a conference of representatives of the governments of the Member States, the conference shall be convened by the President of the Council for the purpose of determining by common accord the amendments to be made to those Treaties. The European Central Bank shall also be consulted in the case of institutional changes in the monetary area.
The amendments shall enter into force after being ratified by all the Member States in accordance with their respective constitutional requirements.
***
A glance at the old and the new Article 48 TEU is enough to tell us that there are differences between the two versions.
We proceed to what the Convention proposed in the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/ 92):
Article IV-7
Procedure for revising the Treaty establishing the Constitution
1. The government of any Member State, the European Parliament or the Commission may submit to the Council of Ministers proposals for the amendment of the Treaty establishing the Constitution. The national Parliaments of the Member States shall be notified of these proposals.
2. If the European Council, after consulting the European Parliament and the Commission, adopts by a simple majority a decision in favour of examining the proposed amendments, the President of the European Council shall convene a Convention composed of representatives of the national Parliaments of the Member States, of the Heads of State or Government of the Member States, of the European Parliament and of the Commission. The European Central Bank shall also be consulted in the case of institutional changes in the monetary area. The European Council may decide by a simple majority, after obtaining the consent of the European Parliament, not to convene the Convention should this not be justified by the extent of the proposed amendments. In the latter case, the European Council shall define the terms of reference for the conference of representatives of the governments of the Member States.
The Convention shall examine the proposals for amendments and shall adopt by consensus a recommendation to the conference of representatives of the governments of the Member States provided for in paragraph 3.
3. The conference of representatives of the governments of the Member States shall be convened by the President of the Council of Ministers for the purpose of determining by common accord the amendments to be made to the Treaty establishing the Constitution.
The amendments shall enter into force after being ratified by all the Member States in accordance with their respective constitutional requirements.
4. If, two years after the signature of the treaty amending the Treaty establishing the Constitution, four fifths of the Member States have ratified it and one or more Member States have encountered difficulties in proceeding with ratification, the matter shall be referred to the European Council.
***
The IGC 2004 made its mark on the proposed arrangements for Treaty revision by drafting three Articles on Treaty revision procedures in the Treaty establishing a Constitution for Europe, in Part IV General and final provisions (OJ 16.12.2004 C 310/189-191):
Article IV-443
Ordinary revision procedure
1. The government of any Member State, the European Parliament or the Commission may submit to the Council proposals for the amendment of this Treaty. These proposals shall be submitted to the European Council by the Council and the national Parliaments shall be notified.
2. If the European Council, after consulting the European Parliament and the Commission, adopts by a simple majority a decision in favour of examining the proposed amendments, the President of the European Council shall convene a Convention composed of representatives of the national Parliaments, of the Heads of State or Government of the Member States, of the European Parliament and of the Commission. The European Central Bank shall also be consulted in the case of institutional changes in the monetary area. The Convention shall examine the proposals for amendments and shall adopt by consensus a recommendation to a conference of representatives of the governments of the Member States as provided for in paragraph 3.
The European Council may decide by a simple majority, after obtaining the consent of the European Parliament, not to convene a Convention should this not be justified by the extent of the proposed amendments. In the latter case, the European Council shall define the terms of reference for a conference of representatives of the governments of the Member States.
3. A conference of representatives of the governments of the Member States shall be convened by the President of the Council for the purpose of determining by common accord the amendments to be made to this Treaty.
The amendments shall enter into force after being ratified by all the Member States in accordance with their respective constitutional requirements.
4. If, two years after the signature of the treaty amending this Treaty, four fifths of the Member States have ratified it and one or more Member States have encountered difficulties in proceeding with ratification, the matter shall be referred to the European Council.
Article IV-444
Simplified revision procedure
1. Where Part III provides for the Council to act by unanimity in a given area or case, the European Council may adopt a European decision authorising the Council to act by a qualified majority in that area or in that case.
This paragraph shall not apply to decisions with military implications or those in the area of defence.
2. Where Part III provides for European laws and framework laws to be adopted by the Council in accordance with a special legislative procedure, the European Council may adopt a European decision allowing for the adoption of such European laws or framework laws in accordance with the ordinary legislative procedure.
3. Any initiative taken by the European Council on the basis of paragraphs 1 or 2 shall be notified to the national Parliaments. If a national Parliament makes known its opposition within six months of the date of such notification, the European decision referred to in paragraphs 1 or 2 shall not be adopted. In the absence of opposition, the European Council may adopt the decision.
For the adoption of the European decisions referred to in paragraphs 1 and 2, the European Council shall act by unanimity after obtaining the consent of the European Parliament, which shall be given by a majority of its component members.
Article IV-445
Simplified revision procedure concerning internal Union policies and action
1. The Government of any Member State, the European Parliament or the Commission may submit to the European Council proposals for revising all or part of the provisions of Title III of Part III on the internal policies and action of the Union.
2. The European Council may adopt a European decision amending all or part of the provisions of Title III of Part III. The European Council shall act by unanimity after consulting the European Parliament and the Commission, and the European Central Bank in the case of institutional changes in the monetary area.
Such a European decision shall not come into force until it has been approved by the Member States in accordance with their respective constitutional requirements.
3. The European decision referred to in paragraph 2 shall not increase the competences conferred on the Union in this Treaty.
***
You can study the similarities and differences between the current TEU, the draft Constitution, the Constitution and the Treaty of Lisbon.
Personally, I find that the Constitution text with three separate Articles, was easiest to read and comprehend, but the IGC 2007 Mandate ordered: Article 48 will be amended so as to bring together the procedures for revising the Treaties (the ordinary and the two simplified procedures). (Council document 11218/07, point 16)
A readable overview of the Treaty revision procedures introduced by the Lisbon Treaty and some British positions are given in the relevant UK House of Commons Library Research Paper (page 74 to 76).
The “Green Paper” of the Swedish government, in addition to various presentations of the revision procedures, points out the new Article 308a of the Treaty on the Functioning of the European Union (TFEU), which limits the scope for possible simplified Treaty revisions (page 394 to 395).
Let us take a look at the new Article 308a TFEU (OJ 17.12.2007 C 306/131):
Article 308a TFEU
Article 48(7) of the Treaty on European Union shall not apply to the following Articles:
— Article 269, third and fourth paragraphs,
— Article 270a(2), first subparagraph,
— Article 308, and
— Article 309.’.
This means that the following areas are excluded from the simplified Treaty revision procedure concerning a move from unanimity to qualified majority voting (QMV) in policy areas covered by the TFEU or TEU Title V (external action and the common foreign and security policy; except decisions with military implications or those in the area of defence, which are already expressly excluded), as well as a move from a special legislative procedure to the ordinary legislative procedure, mentioned in Article 48(7) TEU:
- The system of the EU’s own resources and implementing measures for the Union’s system of own resources; Article 269 TFEU
- The Regulation on the multiannual financial framework; Article 270a(2) TFEU
- The flexibility clause; Article 308 TFEU
- The voting rules on suspension of membership rights (in case of a breach of the EU’s values); Article 309 TFEU
The six specific current ‘passerelle’ clauses (page 40) and the new ones (page 41) are explained in the Danish ratification bill, as well as the other provisions to modify the Treaties.
Ralf Grahn
Sources:
UK House of Commons Library Research Paper 07/80, 22 November 2007: The EU Reform Treaty: amendments to the Treaty on European Union
http://www.parliament.uk/commons/lib/research/rp2007/rp07-080.pdf
NB: My references are to the version above, but I just noticed that it has been replaced by a new one:
UK House of Commons Library Research Paper 08/09, 24 January 2008: The Treaty of Lisbon: amendments to the Treaty on European Union
http://www.parliament.uk/commons/lib/research/rp2008/rp08-009.pdf
Government of Sweden, Regeringskansliet: Lissabonfördraget, Statsrådsberedningen, Departementsserien (Ds) Ds 2007:48, 20 december 2007
http://www.regeringen.se/sb/d/108/a/94981
Government of Denmark: Lov om aendring af lov om Danmarks tiltraedelse af De Europaeiske Faelleskaber og Den Europaeiske Union (Danmarks ratification af Lissabon-traktaten); Lovforslag nr. L 53, Fremsat den 9. januar 2008 af udenrigsministeren (Per Stig Møller); Bind III
http://www.eu-oplysningen.dk/upload/application/pdf/c510022c/BindIII.pdf
Saturday, 2 February 2008
EU Treaty of Lisbon: Legal personality
Much virulent criticism of the Treaty of Lisbon seems to be based on misconception, misconstruction or misrepresentation. Legal personality for the European Union (EU) is one example.
The European Community (EC) already has express legal personality, and the EC has concluded hosts of international treaties and agreements within its powers.
The current state of affairs is described in a UK House of Commons Library Research Paper in the following way (p. 72):
“This means that only the Community, represented by the Commission, currently has rights and obligations under international law. The Commission negotiates international agreements, such as trade and commercial agreements, on behalf of the Community with the authorisation of the Council. Member States decide the negotiating mandate by unanimity or QMV, depending on the policy area in question, and approve any final agreement on the same basis. The EU has no express legal personality at present, but Articles 24 and 38 TEU provide a treaty negotiation procedure on the basis of which treaties have been signed in the name of the EU.”
The Lisbon Treaty abolishes the EC and the pillar structure. The EC is succeeded by the EU. Therefore, legal personality is expressly conferred upon the EU. This can be likened to taking down a partitioning wall, creating a wider space.
The exercise of the European Union’s rights and duties under international law is still subject to the competences (powers) conferred upon the EU by the Treaties. The member states have agreed on a declaration to that effect.
***
We arrive at the Final provisions (Title VI) of the Treaty on European Union, as amended by the Treaty of Lisbon. We can take an introductory look at what the intergovernmental conference (IGC 2007) set out to do according to its Mandate (Council document 11218/07):
“Final Provisions (VI)
16. Title VI (former Title VIII of the existing TEU) will be amended as agreed in the 2004 IGC. There will in particular be an Article on the legal personality of the Union (8), an Article on voluntary withdrawal from the Union and Article 48 will be amended so as to bring together the procedures for revising the Treaties (the ordinary and the two simplified procedures). This Article, in its paragraph on the ordinary revision procedure, will make it clear that the Treaties can be revised to increase or reduce the competences conferred upon the Union. In Article 49, on conditions of eligibility and the procedure for accession to the Union, the reference to the principles will be replaced by a reference to the Union's values and the addition of a commitment to promoting such values, an obligation to notify the European Parliament and national parliaments of an application for accession to the Union and a reference to take into account the conditions of eligibility agreed upon by the European Council (see Annex 1, Title VI). The usual final provision will also be adapted (territorial scope, duration, ratification and authentic texts and translations).(9)”
Footnote 8 added: The IGC will agree on the following Declaration: "The Conference confirms that the fact that the European Union has a legal personality will not in any way authorise the Union to legislate or to act beyond the competences conferred upon it by the Member States in the Treaties."
Footnote 9 stated: Articles 41, 42, 46 and 50 of the TEU will be deleted, Article 47 being placed, as amended in the 2004 IGC, in the CFSP Chapter.
***
The intergovernmental conference (IGC 2007) agreed on the following, mercifully short, provision at the beginning of the new Title VI Final provisions (OJ 17.12.2007 C 306/37):
55) The following new Article 46 A shall be inserted:
Article 46a
The Union shall have legal personality.
***
The nearest antecedent in the existing Treaties is Article 281 of the Treaty establishing the European Community (TEC)(latest consolidated version OJ 29.12.2006 C 321 E/170):
Article 281
The Community shall have legal personality.
***
The Convention proposed the following provision in the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/9):
Article I-6
Legal personality
The Union shall have legal personality.
***
The IGC 2004 agreed on the following provision in the Treaty establishing a Constitution for Europe (OJ 16.12.2004 C 310/13):
Article I-7
Legal personality
The Union shall have legal personality.
***
We can see that the European Community (EC) has legal personality.
The Convention, the Constitutional Treaty and the Lisbon Treaty all confer this explicit legal personality on the European Union.
Since the EC becomes history by being merged into the EU, legal personality follows. See Article 1(3) of the Reform Treaty TEU:
“Article 1(3)
The Union shall be founded on the present Treaty and on the Treaty on the Functioning of the European Union (hereinafter referred to as “the Treaties”). Those two Treaties shall have the same legal value. The Union shall replace and succeed the European Community.”
Only lawyers and official documents seem to have upheld the existing distinction between the EC and the EU. Media, politicians and citizens have subsumed everything under the EU heading a long time ago. Thus, the end result with only the EU should be clearer and easier for citizens.
The refounded EU replaces and succeeds the EC. This includes legal personality.
As a legal person the European Union is a subject of international law, with rights and duties. It can bring international claims, make treaties and conclude agreements and enjoy privileges and immunities from national jurisdictions, within the competences (powers) conferred upon it by the member states.
Ralf Grahn
Source:
House of Commons Library Research Paper 07/80, 22 November 2007: The EU Reform Treaty: amendments to the Treaty on European Union;
http://www.parliament.uk/commons/lib/research/rp2007/rp07-080.pdf
The European Community (EC) already has express legal personality, and the EC has concluded hosts of international treaties and agreements within its powers.
The current state of affairs is described in a UK House of Commons Library Research Paper in the following way (p. 72):
“This means that only the Community, represented by the Commission, currently has rights and obligations under international law. The Commission negotiates international agreements, such as trade and commercial agreements, on behalf of the Community with the authorisation of the Council. Member States decide the negotiating mandate by unanimity or QMV, depending on the policy area in question, and approve any final agreement on the same basis. The EU has no express legal personality at present, but Articles 24 and 38 TEU provide a treaty negotiation procedure on the basis of which treaties have been signed in the name of the EU.”
The Lisbon Treaty abolishes the EC and the pillar structure. The EC is succeeded by the EU. Therefore, legal personality is expressly conferred upon the EU. This can be likened to taking down a partitioning wall, creating a wider space.
The exercise of the European Union’s rights and duties under international law is still subject to the competences (powers) conferred upon the EU by the Treaties. The member states have agreed on a declaration to that effect.
***
We arrive at the Final provisions (Title VI) of the Treaty on European Union, as amended by the Treaty of Lisbon. We can take an introductory look at what the intergovernmental conference (IGC 2007) set out to do according to its Mandate (Council document 11218/07):
“Final Provisions (VI)
16. Title VI (former Title VIII of the existing TEU) will be amended as agreed in the 2004 IGC. There will in particular be an Article on the legal personality of the Union (8), an Article on voluntary withdrawal from the Union and Article 48 will be amended so as to bring together the procedures for revising the Treaties (the ordinary and the two simplified procedures). This Article, in its paragraph on the ordinary revision procedure, will make it clear that the Treaties can be revised to increase or reduce the competences conferred upon the Union. In Article 49, on conditions of eligibility and the procedure for accession to the Union, the reference to the principles will be replaced by a reference to the Union's values and the addition of a commitment to promoting such values, an obligation to notify the European Parliament and national parliaments of an application for accession to the Union and a reference to take into account the conditions of eligibility agreed upon by the European Council (see Annex 1, Title VI). The usual final provision will also be adapted (territorial scope, duration, ratification and authentic texts and translations).(9)”
Footnote 8 added: The IGC will agree on the following Declaration: "The Conference confirms that the fact that the European Union has a legal personality will not in any way authorise the Union to legislate or to act beyond the competences conferred upon it by the Member States in the Treaties."
Footnote 9 stated: Articles 41, 42, 46 and 50 of the TEU will be deleted, Article 47 being placed, as amended in the 2004 IGC, in the CFSP Chapter.
***
The intergovernmental conference (IGC 2007) agreed on the following, mercifully short, provision at the beginning of the new Title VI Final provisions (OJ 17.12.2007 C 306/37):
55) The following new Article 46 A shall be inserted:
Article 46a
The Union shall have legal personality.
***
The nearest antecedent in the existing Treaties is Article 281 of the Treaty establishing the European Community (TEC)(latest consolidated version OJ 29.12.2006 C 321 E/170):
Article 281
The Community shall have legal personality.
***
The Convention proposed the following provision in the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/9):
Article I-6
Legal personality
The Union shall have legal personality.
***
The IGC 2004 agreed on the following provision in the Treaty establishing a Constitution for Europe (OJ 16.12.2004 C 310/13):
Article I-7
Legal personality
The Union shall have legal personality.
***
We can see that the European Community (EC) has legal personality.
The Convention, the Constitutional Treaty and the Lisbon Treaty all confer this explicit legal personality on the European Union.
Since the EC becomes history by being merged into the EU, legal personality follows. See Article 1(3) of the Reform Treaty TEU:
“Article 1(3)
The Union shall be founded on the present Treaty and on the Treaty on the Functioning of the European Union (hereinafter referred to as “the Treaties”). Those two Treaties shall have the same legal value. The Union shall replace and succeed the European Community.”
Only lawyers and official documents seem to have upheld the existing distinction between the EC and the EU. Media, politicians and citizens have subsumed everything under the EU heading a long time ago. Thus, the end result with only the EU should be clearer and easier for citizens.
The refounded EU replaces and succeeds the EC. This includes legal personality.
As a legal person the European Union is a subject of international law, with rights and duties. It can bring international claims, make treaties and conclude agreements and enjoy privileges and immunities from national jurisdictions, within the competences (powers) conferred upon it by the member states.
Ralf Grahn
Source:
House of Commons Library Research Paper 07/80, 22 November 2007: The EU Reform Treaty: amendments to the Treaty on European Union;
http://www.parliament.uk/commons/lib/research/rp2007/rp07-080.pdf
Friday, 1 February 2008
EU Treaty of Lisbon: Permanent structured cooperation
Permanent structured cooperation gives a core group of European Union (EU) member states a possibility to cooperate more closely within the common security and defence policy (CSDP).
A main objective of this enhanced defence cooperation is for the EU to be able to assist the United Nations through international peace missions involving military forces.
The member states participating in permanent structured cooperation form a self-governing advance group, meant to shoulder responsibilities from the day the Treaty of Lisbon enters into force. Hence the need for advance preparation. Laggards may be allowed to join later.
Participating member states have to be both willing and able, with the needed capabilities outlined in a Protocol annexed to the Lisbon Treaty.
***
In the Treaty of Lisbon the intergovernmental conference (IGC 2007) agreed on new provisions on the common security and defence policy (CSDP) to form part of the Treaty on European Union (TEU)(OJ 17.12.2007 C 306/36 and 37):
50) The following new Articles 28 B to 28 E shall be inserted:
-----
Article 28e
1. Those Member States which wish to participate in the permanent structured cooperation referred to in Article 28 A(6), which fulfil the criteria and have made the commitments on military capabilities set out in the Protocol on permanent structured cooperation, shall notify their intention to the Council and to the High Representative of the Union for Foreign Affairs and Security Policy.
2. Within three months following the notification referred to in paragraph 1 the Council shall adopt a decision establishing permanent structured cooperation and determining the list of participating Member States. The Council shall act by a qualified majority after consulting the High Representative.
3. Any Member State which, at a later stage, wishes to participate in the permanent structured cooperation shall notify its intention to the Council and to the High Representative.
The Council shall adopt a decision confirming the participation of the Member State concerned which fulfils the criteria and makes the commitments referred to in Articles 1 and 2 of the Protocol on permanent structured cooperation. The Council shall act by a qualified majority after consulting the High Representative. Only members of the Council representing the participating Member States shall take part in the vote.
A qualified majority shall be defined in accordance with Article 205(3)(a) of the Treaty on the Functioning of the European Union.
4. If a participating Member State no longer fulfils the criteria or is no longer able to meet the commitments referred to in Articles 1 and 2 of the Protocol on permanent structured cooperation, the Council may adopt a decision suspending the participation of the Member State concerned.
The Council shall act by a qualified majority. Only members of the Council representing the participating Member States, with the exception of the Member State in question, shall take part in the vote.
A qualified majority shall be defined in accordance with Article 205(3)(a) of the Treaty on the Functioning of the European Union.
5. Any participating Member State which wishes to withdraw from permanent structured cooperation shall notify its intention to the Council, which shall take note that the Member State in question has ceased to participate.
6. The decisions and recommendations of the Council within the framework of permanent structured cooperation, other than those provided for in paragraphs 2 to 5, shall be adopted by unanimity. For the purposes of this paragraph, unanimity shall be constituted by the votes of the representatives of the participating Member States only.
***
Since Article 28e TEU is already consolidated and readable, we go to the Protocol on permanent structured cooperation (OJ 17.12.2007 C 306/151 to 153) :
Protocol on permanent structured cooperation established by Article 28a 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 thesecurity 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.
***
There is no antecedent to the new Article 28e in the existing Treaty on European Union (latest consolidated version OJ 29.12.2006 C 321 E/1), so we turn to the draft Treaty establishing a Constitution for Europe, where Articles III-213 and partly III-214 seem relevant (OJ 18.7.2003 C 169/69 and 70):
Article III-213
1. The Member States listed in the Protocol [title], which fulfil higher military capability criteria and wish to enter into more binding commitments in this matter with a view to the most demanding tasks, hereby establish structured cooperation between themselves within the meaning of Article I-40(6). The military capability criteria and commitments which those Member States have defined are set out in that Protocol.
2. If a Member State wishes to participate in such cooperation at a later stage, and thus subscribe to the obligations it imposes, it shall inform the European Council of its intention. The Council of Ministers shall deliberate at the request of that Member State. Only the members of the Council of Ministers that represent the Member States taking part in structured cooperation shall participate in the vote.
3. When the Council of Ministers adopts European decisions relating to matters covered by structured cooperation, only the members of the Council of Ministers that represent the Member States taking part in structured cooperation shall participate in the deliberations and the adoption of such decisions. The Union Minister for Foreign Affairs shall attend the deliberations. The representatives of the other Member States shall be duly and regularly informed by the Union Minister for Foreign Affairs of developments in structured cooperation.
4. The Council of Ministers may ask the Member States participating in such cooperation to carry out at Union level a task referred to in Article III-210.
5. Notwithstanding the previous paragraphs, the appropriate provisions relating to enhanced cooperation shall apply to the structured cooperation governed by this Article.
Article III-214
1. The closer cooperation on mutual defence provided for in Article I-40(7) shall be open to all Member States of the Union. A list of Member States participating in closer cooperation shall be set out in the declaration [title]. If a Member State wishes to take part in such cooperation at a later stage, and thus accept the obligations it imposes, it shall inform the European Council of its intention and shall subscribe to that declaration.
2. A Member State participating in such cooperation which is the victim of armed aggression on its territory shall inform the other participating States of the situation and may request aid and assistance from them. Participating Member States shall meet at ministerial level, assisted by their representatives on the Political and Security Committee and the Military Committee.
3. The United Nations Security Council shall be informed immediately of any armed aggression and the measures taken as a result.
4. This Article shall not affect the rights and obligations resulting, for the Member States concerned, from the North Atlantic Treaty.
***
The IGC 2004 modified the draft of the Convention in the Treaty establishing a Constitution for Europe, where Article III-312 was drafted like this (OJ 16.12.2004 C 310/140 and 141):
Article III-312
1. Those Member States which wish to participate in the permanent structured cooperation referred to in Article I-41(6), which fulfil the criteria and have made the commitments on military capabilities set out in the Protocol on permanent structured cooperation shall notify their intention to the Council and to the Union Minister for Foreign Affairs.
2. Within three months following the notification referred to in paragraph 1 the Council shall adopt a European decision establishing permanent structured cooperation and determining the list of participating Member States. The Council shall act by a qualified majority after consulting the Union Minister for Foreign Affairs.
3. Any Member State which, at a later stage, wishes to participate in the permanent structured cooperation shall notify its intention to the Council and to the Union Minister for Foreign Affairs.
The Council shall adopt a European decision confirming the participation of the Member State concerned which fulfils the criteria and makes the commitments referred to in Articles 1 and 2 of the Protocol on permanent structured cooperation. The Council shall act by a qualified majority after consulting the Union Minister for Foreign Affairs. Only members of the Council representing the participating Member States shall take part in the vote.
A qualified majority shall be defined as at least 55 % of the members of the Council representing the participating Member States, comprising at least 65 % of the population of these States.
A blocking minority must include at least the minimum number of Council members representing more than 35 % of the population of the participating Member States, plus one member, failing which the qualified majority shall be deemed attained.
4. If a participating Member State no longer fulfils the criteria or is no longer able to meet the commitments referred to in Articles 1 and 2 of the Protocol on permanent structured cooperation, the Council may adopt a European decision suspending the participation of the Member State concerned.
The Council shall act by a qualified majority. Only members of the Council representing the participating Member States, with the exception of the Member State in question, shall take part in the vote.
A qualified majority shall be defined as at least 55 % of the members of the Council representing the participating Member States, comprising at least 65 % of the population of these States.
A blocking minority must include at least the minimum number of Council members representing more than 35 % of the population of the participating Member States, plus one member, failing which the qualified majority shall be deemed attained.
5. Any participating Member State which wishes to withdraw from permanent structured cooperation shall notify its intention to the Council, which shall take note that the Member State in question has ceased to participate.
6. The European decisions and recommendations of the Council within the framework of permanent structured cooperation, other than those provided for in paragraphs 2 to 5, shall be adopted by unanimity. For the purposes of this paragraph, unanimity shall be constituted by the votes of the representatives of the participating Member States only.
***
The IGC 2004 agreed on a Protocol (number 23) on permanent structured cooperation established by Article I-41(6) and Article III-312 of the Constitution (OJ 16.12.2004 C 310/364):
23. Protocol on permanent structured cooperation established by Article I-41(6) and Article III-312 of the Constitution
THE HIGH CONTRACTING PARTIES,
HAVING REGARD TO Article I‑41(6) and Article III‑312 of the Constitution,
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 III‑309 of the Constitution 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 Minister for Foreign Affairs being fully involved in proceedings relating to permanent structured cooperation,
HAVE AGREED UPON the following provisions, which shall be annexed to the Constitution:
Article 1
The permanent structured cooperation referred to in Article I‑41(6) of the Constitution shall be open to any Member State which undertakes, from the date of entry into force of the Treaty establishing a Constitution for Europe, 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 2007 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 III‑309, 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 establishing a Constitution for Europe, with a iew 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 European decisions adopted in accordance with Article III‑312 of the Constitution.
***
Some remarks on the drafting history:
Permanent structured cooperation was a novelty in the draft Constitution.
The IGC 2004 modified the proposals of the Convention. Originally, the member states outside the permanent structured cooperation were meant only to be ‘duly informed’, but the Constitutional Treaty abolished this restriction concerning the outsiders as to deliberations. Still, only the participating members were to make the decisions.
A weak and non-binding clause on mutual assistance restricted to the participating states was inserted in the Convention’s Article III-214(2), but the Constitution introduceded a general mutual defence clause in Article I-41(7), although with customary references to the ‘specific character of some member states’ policies and NATO membership of others.
The Constitution added the Protocol envisioned by the Convention.
The IGC 2007 adopted the substance of the Constitutional Treaty, with technical adaptations like ‘decision’, the ‘High Representative’ and a referral to the voting rules in the Treaty on the Functioning of the European Union (TFEU) Article 205(a)(3).
The Protocol on permanent structured cooperation in the Lisbon Treaty version undergoes only technical adjustments compared to the Protocol annexed to the Constitution, as you can see for yourself.
***
A few general comments:
Permanent structured cooperation is a form of flexible integration, specific to the common security and defence policy (CSDP).
Jean-Luc Sauron makes the comparison with Schengen: “Cette cooperation structurée, sorte de « Schengen de la défense », sera ouverte aux États qui...” (p. 122).
Each state has to state its wish if it wants to participate. In addition it must fulfil the criteria and must have taken on the commitments set out in the Protocol on permanent structured cooperation.
Permanent structured cooperation is one of many of the institutional arrangements in the Lisbon Treaty requiring implementing decisions. This form of progressive cooperation is instituted by the Reform Treaty and the first decision establishing permanent structured cooperation is to be taken within three months of the Treaty’s entry into force. This decision to determine the original advance group of member states will clearly need advance preparation, since the participating states undertake the obligations from the date of entry into force of the Treaty of Lisbon (Protocol Article 1).
The laggards are being offered the option to join later.
On the other hand, a state unwilling or unable may drop out of the permanent structured cooperation, or its participation can be suspended.
With the exceptions expressly mentioned, the Council decisions and recommendations within the structured cooperation require unanimity (for instance the launch of operations), but this unanimity is constituted by the participants only. In other words, this defence lead group is self-governing and it is able to advance without being hindered by the outsiders.
The Protocol gives general guidance on the membership criteria of this core group: contributing forces to the EU, participation in main equipment programmes and European Defence Agency activities, participation in battle groups, investing in defence equipment, converging defence forces, improving interoperability and enhancing military capabilities.
The Protocol, which respects both the specific nature of the security and defence policy of certain member states (neutral, non-aligned, Denmark) and the obligations of NATO members, expresses the determination that the EU is capable of fully assuming its responsibilities within the international community. United Nations Organisation missions are mentioned especially.
Ralf Grahn
Source:
Jean-Luc Sauron: Comprendre le Traité de Lisbonne, Texte consolidé intégral des traités, Explications et commentaires ; Gualino éditeur, 2008
A main objective of this enhanced defence cooperation is for the EU to be able to assist the United Nations through international peace missions involving military forces.
The member states participating in permanent structured cooperation form a self-governing advance group, meant to shoulder responsibilities from the day the Treaty of Lisbon enters into force. Hence the need for advance preparation. Laggards may be allowed to join later.
Participating member states have to be both willing and able, with the needed capabilities outlined in a Protocol annexed to the Lisbon Treaty.
***
In the Treaty of Lisbon the intergovernmental conference (IGC 2007) agreed on new provisions on the common security and defence policy (CSDP) to form part of the Treaty on European Union (TEU)(OJ 17.12.2007 C 306/36 and 37):
50) The following new Articles 28 B to 28 E shall be inserted:
-----
Article 28e
1. Those Member States which wish to participate in the permanent structured cooperation referred to in Article 28 A(6), which fulfil the criteria and have made the commitments on military capabilities set out in the Protocol on permanent structured cooperation, shall notify their intention to the Council and to the High Representative of the Union for Foreign Affairs and Security Policy.
2. Within three months following the notification referred to in paragraph 1 the Council shall adopt a decision establishing permanent structured cooperation and determining the list of participating Member States. The Council shall act by a qualified majority after consulting the High Representative.
3. Any Member State which, at a later stage, wishes to participate in the permanent structured cooperation shall notify its intention to the Council and to the High Representative.
The Council shall adopt a decision confirming the participation of the Member State concerned which fulfils the criteria and makes the commitments referred to in Articles 1 and 2 of the Protocol on permanent structured cooperation. The Council shall act by a qualified majority after consulting the High Representative. Only members of the Council representing the participating Member States shall take part in the vote.
A qualified majority shall be defined in accordance with Article 205(3)(a) of the Treaty on the Functioning of the European Union.
4. If a participating Member State no longer fulfils the criteria or is no longer able to meet the commitments referred to in Articles 1 and 2 of the Protocol on permanent structured cooperation, the Council may adopt a decision suspending the participation of the Member State concerned.
The Council shall act by a qualified majority. Only members of the Council representing the participating Member States, with the exception of the Member State in question, shall take part in the vote.
A qualified majority shall be defined in accordance with Article 205(3)(a) of the Treaty on the Functioning of the European Union.
5. Any participating Member State which wishes to withdraw from permanent structured cooperation shall notify its intention to the Council, which shall take note that the Member State in question has ceased to participate.
6. The decisions and recommendations of the Council within the framework of permanent structured cooperation, other than those provided for in paragraphs 2 to 5, shall be adopted by unanimity. For the purposes of this paragraph, unanimity shall be constituted by the votes of the representatives of the participating Member States only.
***
Since Article 28e TEU is already consolidated and readable, we go to the Protocol on permanent structured cooperation (OJ 17.12.2007 C 306/151 to 153) :
Protocol on permanent structured cooperation established by Article 28a 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 thesecurity 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.
***
There is no antecedent to the new Article 28e in the existing Treaty on European Union (latest consolidated version OJ 29.12.2006 C 321 E/1), so we turn to the draft Treaty establishing a Constitution for Europe, where Articles III-213 and partly III-214 seem relevant (OJ 18.7.2003 C 169/69 and 70):
Article III-213
1. The Member States listed in the Protocol [title], which fulfil higher military capability criteria and wish to enter into more binding commitments in this matter with a view to the most demanding tasks, hereby establish structured cooperation between themselves within the meaning of Article I-40(6). The military capability criteria and commitments which those Member States have defined are set out in that Protocol.
2. If a Member State wishes to participate in such cooperation at a later stage, and thus subscribe to the obligations it imposes, it shall inform the European Council of its intention. The Council of Ministers shall deliberate at the request of that Member State. Only the members of the Council of Ministers that represent the Member States taking part in structured cooperation shall participate in the vote.
3. When the Council of Ministers adopts European decisions relating to matters covered by structured cooperation, only the members of the Council of Ministers that represent the Member States taking part in structured cooperation shall participate in the deliberations and the adoption of such decisions. The Union Minister for Foreign Affairs shall attend the deliberations. The representatives of the other Member States shall be duly and regularly informed by the Union Minister for Foreign Affairs of developments in structured cooperation.
4. The Council of Ministers may ask the Member States participating in such cooperation to carry out at Union level a task referred to in Article III-210.
5. Notwithstanding the previous paragraphs, the appropriate provisions relating to enhanced cooperation shall apply to the structured cooperation governed by this Article.
Article III-214
1. The closer cooperation on mutual defence provided for in Article I-40(7) shall be open to all Member States of the Union. A list of Member States participating in closer cooperation shall be set out in the declaration [title]. If a Member State wishes to take part in such cooperation at a later stage, and thus accept the obligations it imposes, it shall inform the European Council of its intention and shall subscribe to that declaration.
2. A Member State participating in such cooperation which is the victim of armed aggression on its territory shall inform the other participating States of the situation and may request aid and assistance from them. Participating Member States shall meet at ministerial level, assisted by their representatives on the Political and Security Committee and the Military Committee.
3. The United Nations Security Council shall be informed immediately of any armed aggression and the measures taken as a result.
4. This Article shall not affect the rights and obligations resulting, for the Member States concerned, from the North Atlantic Treaty.
***
The IGC 2004 modified the draft of the Convention in the Treaty establishing a Constitution for Europe, where Article III-312 was drafted like this (OJ 16.12.2004 C 310/140 and 141):
Article III-312
1. Those Member States which wish to participate in the permanent structured cooperation referred to in Article I-41(6), which fulfil the criteria and have made the commitments on military capabilities set out in the Protocol on permanent structured cooperation shall notify their intention to the Council and to the Union Minister for Foreign Affairs.
2. Within three months following the notification referred to in paragraph 1 the Council shall adopt a European decision establishing permanent structured cooperation and determining the list of participating Member States. The Council shall act by a qualified majority after consulting the Union Minister for Foreign Affairs.
3. Any Member State which, at a later stage, wishes to participate in the permanent structured cooperation shall notify its intention to the Council and to the Union Minister for Foreign Affairs.
The Council shall adopt a European decision confirming the participation of the Member State concerned which fulfils the criteria and makes the commitments referred to in Articles 1 and 2 of the Protocol on permanent structured cooperation. The Council shall act by a qualified majority after consulting the Union Minister for Foreign Affairs. Only members of the Council representing the participating Member States shall take part in the vote.
A qualified majority shall be defined as at least 55 % of the members of the Council representing the participating Member States, comprising at least 65 % of the population of these States.
A blocking minority must include at least the minimum number of Council members representing more than 35 % of the population of the participating Member States, plus one member, failing which the qualified majority shall be deemed attained.
4. If a participating Member State no longer fulfils the criteria or is no longer able to meet the commitments referred to in Articles 1 and 2 of the Protocol on permanent structured cooperation, the Council may adopt a European decision suspending the participation of the Member State concerned.
The Council shall act by a qualified majority. Only members of the Council representing the participating Member States, with the exception of the Member State in question, shall take part in the vote.
A qualified majority shall be defined as at least 55 % of the members of the Council representing the participating Member States, comprising at least 65 % of the population of these States.
A blocking minority must include at least the minimum number of Council members representing more than 35 % of the population of the participating Member States, plus one member, failing which the qualified majority shall be deemed attained.
5. Any participating Member State which wishes to withdraw from permanent structured cooperation shall notify its intention to the Council, which shall take note that the Member State in question has ceased to participate.
6. The European decisions and recommendations of the Council within the framework of permanent structured cooperation, other than those provided for in paragraphs 2 to 5, shall be adopted by unanimity. For the purposes of this paragraph, unanimity shall be constituted by the votes of the representatives of the participating Member States only.
***
The IGC 2004 agreed on a Protocol (number 23) on permanent structured cooperation established by Article I-41(6) and Article III-312 of the Constitution (OJ 16.12.2004 C 310/364):
23. Protocol on permanent structured cooperation established by Article I-41(6) and Article III-312 of the Constitution
THE HIGH CONTRACTING PARTIES,
HAVING REGARD TO Article I‑41(6) and Article III‑312 of the Constitution,
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 III‑309 of the Constitution 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 Minister for Foreign Affairs being fully involved in proceedings relating to permanent structured cooperation,
HAVE AGREED UPON the following provisions, which shall be annexed to the Constitution:
Article 1
The permanent structured cooperation referred to in Article I‑41(6) of the Constitution shall be open to any Member State which undertakes, from the date of entry into force of the Treaty establishing a Constitution for Europe, 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 2007 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 III‑309, 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 establishing a Constitution for Europe, with a iew 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 European decisions adopted in accordance with Article III‑312 of the Constitution.
***
Some remarks on the drafting history:
Permanent structured cooperation was a novelty in the draft Constitution.
The IGC 2004 modified the proposals of the Convention. Originally, the member states outside the permanent structured cooperation were meant only to be ‘duly informed’, but the Constitutional Treaty abolished this restriction concerning the outsiders as to deliberations. Still, only the participating members were to make the decisions.
A weak and non-binding clause on mutual assistance restricted to the participating states was inserted in the Convention’s Article III-214(2), but the Constitution introduceded a general mutual defence clause in Article I-41(7), although with customary references to the ‘specific character of some member states’ policies and NATO membership of others.
The Constitution added the Protocol envisioned by the Convention.
The IGC 2007 adopted the substance of the Constitutional Treaty, with technical adaptations like ‘decision’, the ‘High Representative’ and a referral to the voting rules in the Treaty on the Functioning of the European Union (TFEU) Article 205(a)(3).
The Protocol on permanent structured cooperation in the Lisbon Treaty version undergoes only technical adjustments compared to the Protocol annexed to the Constitution, as you can see for yourself.
***
A few general comments:
Permanent structured cooperation is a form of flexible integration, specific to the common security and defence policy (CSDP).
Jean-Luc Sauron makes the comparison with Schengen: “Cette cooperation structurée, sorte de « Schengen de la défense », sera ouverte aux États qui...” (p. 122).
Each state has to state its wish if it wants to participate. In addition it must fulfil the criteria and must have taken on the commitments set out in the Protocol on permanent structured cooperation.
Permanent structured cooperation is one of many of the institutional arrangements in the Lisbon Treaty requiring implementing decisions. This form of progressive cooperation is instituted by the Reform Treaty and the first decision establishing permanent structured cooperation is to be taken within three months of the Treaty’s entry into force. This decision to determine the original advance group of member states will clearly need advance preparation, since the participating states undertake the obligations from the date of entry into force of the Treaty of Lisbon (Protocol Article 1).
The laggards are being offered the option to join later.
On the other hand, a state unwilling or unable may drop out of the permanent structured cooperation, or its participation can be suspended.
With the exceptions expressly mentioned, the Council decisions and recommendations within the structured cooperation require unanimity (for instance the launch of operations), but this unanimity is constituted by the participants only. In other words, this defence lead group is self-governing and it is able to advance without being hindered by the outsiders.
The Protocol gives general guidance on the membership criteria of this core group: contributing forces to the EU, participation in main equipment programmes and European Defence Agency activities, participation in battle groups, investing in defence equipment, converging defence forces, improving interoperability and enhancing military capabilities.
The Protocol, which respects both the specific nature of the security and defence policy of certain member states (neutral, non-aligned, Denmark) and the obligations of NATO members, expresses the determination that the EU is capable of fully assuming its responsibilities within the international community. United Nations Organisation missions are mentioned especially.
Ralf Grahn
Source:
Jean-Luc Sauron: Comprendre le Traité de Lisbonne, Texte consolidé intégral des traités, Explications et commentaires ; Gualino éditeur, 2008
Subscribe to:
Posts (Atom)
Subscribe To Grahnlaw
Posts
All Comments
