Not only goods, services and capital, but humans looking for work are meant to be able to move freely within the European Community (European Union).
We take a brief look at what the freedom of movement of workers looks like at treaty level, when the Treaty of Lisbon has entered into force.
***
We continue our study of Part Three ‘Policies and internal actions of the Union’ in the light of the Lisbon Treaty.
Title III ‘Free movement of persons, services and capital’ of the Treaty establishing the European Community (TEC), first becomes Title III with the same name of the Treaty of Lisbon (ToL) version of the Treaty on the Functioning of the European Union (TFEU), later to be renumbered Title IV.
Chapter 1 ‘Workers’ retains its name and number throughout. (See OJ 17.12.2007 C 306/207-208.)
***
Arriving at Article 39 TEC the intergovernmental conference (IGC 2007) was far from loquacious (OJ 17.12.2007 C 306/54):
FREE MOVEMENT OF WORKERS
50) In Article 39(3)(d), the word ‘implementing’ shall be deleted.
***
With one word to delete, we have a certain need to find the precious rest of the provision. The latest consolidated version of the current TEU and TEC is found in OJ 29.12.2006 C 321 E/57-58:
TITLE III
FREE MOVEMENT OF PERSONS, SERVICES AND CAPITAL
CHAPTER 1
WORKERS
Article 39 TEC
1. Freedom of movement for workers shall be secured within the Community.
2. Such freedom of movement shall entail the abolition of any discrimination based on nationality between workers of the Member States as regards employment, remuneration and other conditions of work and employment.
3. It shall entail the right, subject to limitations justified on grounds of public policy, public security or public health:
(a) to accept offers of employment actually made;
(b) to move freely within the territory of Member States for this purpose;
(c) to stay in a Member State for the purpose of employment in accordance with the provisions governing the employment of nationals of that State laid down by law, regulation or administrative action;
(d) to remain in the territory of a Member State after having been employed in that State, subject to conditions which shall be embodied in implementing regulations to be drawn up by the Commission.
4. The provisions of this Article shall not apply to employment in the public service.
***
A consolidated Lisbon Treaty version of an Article builds upon the express amendments (here only one), possible horizontal amendments and the future renumbering. Indicating the setting of the provision, we should end up with the following result:
Part Three ‘Policies and internal actions of the Union’
Title III (renumbered Title IV) ‘Free movement of persons, services and capital’
Chapter 1 ‘Workers’
Article 39 TFEU (ToL), renumbered Article 45 TFEU
1. Freedom of movement for workers shall be secured within the Union.
2. Such freedom of movement shall entail the abolition of any discrimination based on nationality between workers of the Member States as regards employment, remuneration and other conditions of work and employment.
3. It shall entail the right, subject to limitations justified on grounds of public policy, public security or public health:
(a) to accept offers of employment actually made;
(b) to move freely within the territory of Member States for this purpose;
(c) to stay in a Member State for the purpose of employment in accordance with the provisions governing the employment of nationals of that State laid down by law, regulation or administrative action;
(d) to remain in the territory of a Member State after having been employed in that State, subject to conditions which shall be embodied in regulations to be drawn up by the Commission.
4. The provisions of this Article shall not apply to employment in the public service.
***
In Article III-18 of the draft Treaty establishing a Constitution for Europe nothing changed the substance of the provision, but some readers may prefer the plain language of the European Convention in a few details while others may miss the formula ‘freedom of movement for workers’ (OJ 18.7.2003 C 169/31):
SECTION 2
Free movement of persons and services
Subsection 1
Workers
Article III-18 Draft Constitution
1. Workers shall have the right to move freely within the Union.
2. Any discrimination based on nationality between workers of the Member States as regards employment, remuneration and other conditions of work and employment shall be prohibited.
3. Workers shall have the right, subject to limitations justified on grounds of public policy, public security or public health:
(a) to accept offers of employment actually made;
(b) to move freely within the territory of Member States for this purpose;
(c) to stay in a Member State for the purpose of employment in accordance with the provisions governing the employment of nationals of that State laid down by law, regulation or administrative action;
(d) to remain in the territory of a Member State after having been employed in that State, subject to conditions which shall be embodied in European regulations adopted by the Commission.
4. This Article shall not apply to employment in the public service.
***
The corresponding Article III-133 of the Treaty establishing a Constitution for Europe repeated the text of the draft word for word, so the Lisbon Treaty can be said to have reverted to the TEC text, as far as there are any differences, and none of them material.
***
The reader who wants to begin exploring the right to move freely can start from the Commission’s pages on Employment and Social Affairs, Free Movement of Workers ‘Free Movement of Workers and the Principle of Equal Treatment’ and the links offered:
http://ec.europa.eu/employment_social/free_movement/index_en.htm
Ralf Grahn
Monday, 31 March 2008
Sunday, 30 March 2008
EU TFEU: Agricultural countervailing import and export charges
If EU agriculutural products are outside a common market organisation and the internal market is disrupted by national measures, the Commission can decide on countervailing charges to offset the imbalance.
***
Article 38 of the Treaty establishing the European Community (TEC) is one of those provisions, where the intergovernmental conference (IGC 2007) had nothing specific to say in the Treaty of Lisbon (ToL). Cf. OJ 17.12.2007 C 306/54.
We fetch the current Article 38 TEC from the latest consolidated version of the treaties (OJ 29.12.2006 C 321 E/57), add the numbering of the Tables of equivalences as well as the headings indicating the context of the provision (OJ 17.12.2007 C 306/207-208) and watch out for possible horizontal amendments (none, as far as I see). Here is what the Article should look like, before we check against a few earlier consolidations (IIEA, FCO, Statewatch and Fischer):
Part Three Policies and internal actions of the Union
Title II (renumbered Title III) Agriculture and fisheries
Article 38 TFEU (ToL), renumbered Article 44 TFEU
Where in a Member State a product is subject to a national market organisation or to internal rules having equivalent effect which affect the competitive position of similar production in another Member State, a countervailing charge shall be applied by Member States to imports of this product coming from the Member State where such organisation or rules exist, unless that State applies a countervailing charge on export.
The Commission shall fix the amount of these charges at the level required to redress the balance; it may also authorise other measures, the conditions and details of which it shall determine.
***
If we look at the draft Treaty establishing a Constitution for Europe, we notice only the more developed terminology for statutory instruments proposed by the European Convention and abandoned by the Lisbon Treaty as part of the ‘constitutional concept’ (OJ 18.7.2003 C 169/52):
Article III-128 Draft Constitution
Where in a Member State a product is subject to a national market organisation or to internal rules having equivalent effect which affect the competitive position of similar production in another Member State, a countervailing charge shall be applied by Member States to imports of this product coming from the Member State where such organisation or rules exist, unless that State applies a countervailing charge on export.
The Commission shall adopt European regulations or decisions fixing the amount of these charges at the level required to redress the balance; it may also authorise other measures, the conditions and details of which it shall determine.
***
The corresponding Article III-232 of the Treaty establishing a Constitution for Europe divided the last sentence into two (instead of using a semicolon), but otherwise adopted the draft text wholesale (OJ 16.12.2004 C 310/102).
***
Countervailing duties (counterbalancing or offsetting) are perhaps more generally known in international trade, but ‘duties’ and ‘charges’ are used interchangeably, and no customs duties were supposed to exist within the then common market (wholly replaced by the term ‘internal market’ by the Lisbon Treaty). And the common agricultural policy (CAP) aims at instituting a common market for agricultural goods, too.
The provision concerns only a small part of agricultural products, namely those outside a common market organisation.
Ralf Grahn
***
Article 38 of the Treaty establishing the European Community (TEC) is one of those provisions, where the intergovernmental conference (IGC 2007) had nothing specific to say in the Treaty of Lisbon (ToL). Cf. OJ 17.12.2007 C 306/54.
We fetch the current Article 38 TEC from the latest consolidated version of the treaties (OJ 29.12.2006 C 321 E/57), add the numbering of the Tables of equivalences as well as the headings indicating the context of the provision (OJ 17.12.2007 C 306/207-208) and watch out for possible horizontal amendments (none, as far as I see). Here is what the Article should look like, before we check against a few earlier consolidations (IIEA, FCO, Statewatch and Fischer):
Part Three Policies and internal actions of the Union
Title II (renumbered Title III) Agriculture and fisheries
Article 38 TFEU (ToL), renumbered Article 44 TFEU
Where in a Member State a product is subject to a national market organisation or to internal rules having equivalent effect which affect the competitive position of similar production in another Member State, a countervailing charge shall be applied by Member States to imports of this product coming from the Member State where such organisation or rules exist, unless that State applies a countervailing charge on export.
The Commission shall fix the amount of these charges at the level required to redress the balance; it may also authorise other measures, the conditions and details of which it shall determine.
***
If we look at the draft Treaty establishing a Constitution for Europe, we notice only the more developed terminology for statutory instruments proposed by the European Convention and abandoned by the Lisbon Treaty as part of the ‘constitutional concept’ (OJ 18.7.2003 C 169/52):
Article III-128 Draft Constitution
Where in a Member State a product is subject to a national market organisation or to internal rules having equivalent effect which affect the competitive position of similar production in another Member State, a countervailing charge shall be applied by Member States to imports of this product coming from the Member State where such organisation or rules exist, unless that State applies a countervailing charge on export.
The Commission shall adopt European regulations or decisions fixing the amount of these charges at the level required to redress the balance; it may also authorise other measures, the conditions and details of which it shall determine.
***
The corresponding Article III-232 of the Treaty establishing a Constitution for Europe divided the last sentence into two (instead of using a semicolon), but otherwise adopted the draft text wholesale (OJ 16.12.2004 C 310/102).
***
Countervailing duties (counterbalancing or offsetting) are perhaps more generally known in international trade, but ‘duties’ and ‘charges’ are used interchangeably, and no customs duties were supposed to exist within the then common market (wholly replaced by the term ‘internal market’ by the Lisbon Treaty). And the common agricultural policy (CAP) aims at instituting a common market for agricultural goods, too.
The provision concerns only a small part of agricultural products, namely those outside a common market organisation.
Ralf Grahn
Saturday, 29 March 2008
EU TFEU: Agricultural legislation and decisions
The Treaty of Lisbon enhances the powers of the European Parliament to co-legislate on the fundamental aspects of the common agricultural policy (CAP) of the European Union, but the Commission proposes and the Council disposes in all concrete matters concerning agriculture and fisheries even when the Lisbon Treaty has entered into force.
Once again we see a provision where the real originator of the amending Lisbon Treaty is the European Convention, chaired by Valéry Giscard d’Estaing.
***
Point 49 of the Treaty of Lisbon (ToL) takes on Article 37 of the Treaty establishing the European Community. Here is what the intergovernmental conference (IGC 20007) had to say about the provision, which becomes part of the renamed Treaty on the Functioning of the European Union (TFEU). See Official Journal (OJ) 17.12.2007 C 306/53-54:
49) Article 37 shall be amended as follows:
(a) paragraph 1 shall be deleted;
(b) paragraph 2 shall be renumbered 1; the words ‘Having taken into account the work of the Conference provided for in paragraph 1, after consulting the Economic and Social Committee and within two years of the entry into force of the Treaty, the Commission shall submit proposals’ shall be replaced by ‘The Commission shall submit proposals’, and the third subparagraph shall be deleted;
(c) the following paragraphs shall be inserted as new paragraphs 2 and 3, and the remaining paragraphs shall be renumbered accordingly:
‘2. The European Parliament and the Council, acting in accordance with the ordinary legislative procedure and after consulting the Economic and Social Committee, shall establish the common organisation of agricultural markets provided for in Article 34(1) and the other provisions necessary for the pursuit of the objectives of the common agricultural policy and the common fisheries policy;
3. The Council, on a proposal from the Commission, shall adopt measures on fixing prices, levies, aid and quantitative limitations and on the fixing and allocation of fishing opportunities.’;
(d) in the introductory words to paragraph 3 renumbered 4, the words ‘The Council may, acting by a qualified majority and in accordance with paragraph 2, replace the national market organisations by the common organisation’ shall be replaced by ‘In accordance with paragraph 2, the national market organisations may be replaced by the common organisation’;
(e) at the beginning of paragraph 4 renumbered 5, a change shall be made to the French which does not concern the English version.
***
Because nobody can be sure that the Lisbon Treaty will survive the ratification gauntlet, the IGC 2007 shows its paternal concern by stimulating our reading of the current treaties. The latest consolidated version of the treaties and, more precisely, the provision is found in OJ 29.12.2006 C 321 E/56, where it fills the whole page:
Article 37 TEC
1. In order to evolve the broad lines of a common agricultural policy, the Commission shall, immediately this Treaty enters into force, convene a conference of the Member States with a view to making a comparison of their agricultural policies, in particular by producing a statement of their resources and needs.
2. Having taken into account the work of the Conference provided for in paragraph 1, after consulting the Economic and Social Committee and within two years of the entry into force of this Treaty, the Commission shall submit proposals for working out and implementing the common agricultural policy, including the replacement of the national organisations by one of the forms of common organisation provided for in Article 34(1), and for implementing the measures specified in this title.
These proposals shall take account of the interdependence of the agricultural matters mentioned in this title.
The Council shall, on a proposal from the Commission and after consulting the European Parliament, acting by a qualified majority, make regulations, issue directives, or take decisions, without prejudice to any recommendations it may also make.
3. The Council may, acting by a qualified majority and in accordance with paragraph 2, replace the national market organisations by the common organisation provided for in Article 34(1) if:
(a) the common organisation offers Member States which are opposed to this measure and which have an organisation of their own for the production in question equivalent safeguards for the employment and standard of living of the producers concerned, account being taken of the adjustments that will be possible and the specialisation that will be needed with the passage of time;
(b) such an organisation ensures conditions for trade within the Community similar to those existing in a national market.
4. If a common organisation for certain raw materials is established before a common organisation exists for the corresponding processed products, such raw materials as are used for processed products intended for export to third countries may be imported from outside the Community.
***
Acquainted with the situation ‘de lege lata’ we have to consider the chance that an EU treaty reform could actually enter into force this time around. Express amendments, horizontal amendments and renumbering (including referrals) have to be joined to achieve the wording ‘de lege ferenda’, and we superimpose the context of the Article:
Part Three Policies and internal actions of the Union
Title II (renumbered Title III) Agriculture and fisheries
Article 37 TFEU (ToL), renumbered Article 43 TFEU
1. The Commission shall submit proposals for working out and implementing the common agricultural policy, including the replacement of the national organisations by one of the forms of common organisation provided for in Article 34(1) [ToL, renumbered Article 40(1) TFEU], and for implementing the measures specified in this title.
These proposals shall take account of the interdependence of the agricultural matters mentioned in this title.
2. The European Parliament and the Council, acting in accordance with the ordinary legislative procedure and after consulting the Economic and Social Committee, shall establish the common organisation of agricultural markets provided for in Article 34(1) [ToL, renumbered Article 40(1) TFEU] and the other provisions necessary for the pursuit of the objectives of the common agricultural policy and the common fisheries policy.
3. The Council, on a proposal from the Commission, shall adopt measures on fixing prices, levies, aid and quantitative limitations and on the fixing and allocation of fishing opportunities.
4. In accordance with paragraph 2, the national market organisations may be replaced by the common organisation provided for in Article 34(1) [ToL, renumbered Article 40(1) TFEU] if:
(a) the common organisation offers Member States which are opposed to this measure and which have an organisation of their own for the production in question equivalent safeguards for the employment and standard of living of the producers concerned, account being taken of the adjustments that will be possible and the specialisation that will be needed with the passage of time;
(b) such an organisation ensures conditions for trade within the Union similar to those existing in a national market.
5. If a common organisation for certain raw materials is established before a common organisation exists for the corresponding processed products, such raw materials as are used for processed products intended for export to third countries may be imported from outside the Union.
***
Even a short consolidation exercise easily leads to error, so I use the opportunity to check my result against some of those who have gone before me, namely the IIEA, FCO, Statewatch and Fischer consolidations.
More exact references to these and other existing as well as coming consolidated language versions are to be found in today’s earlier post ‘Consolidated EU Lisbon Treaty Update 29 March 2008’, including the Post Scriptum:
http://grahnlaw.blogspot.com/2008/03/consolidated-eu-lisbon-treaty-update-29.html
***
You are now offered the following piece in the jigsaw puzzle. The European Convention proposed the following Article III-127 of the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/52):
Article III-127 Draft Constitution
1. The Commission shall submit proposals for working out and implementing the common agricultural policy, including the replacement of the national organisations by one of the forms of common organisation provided for in Article III- 124(1), and for implementing the measures referred to in this Section.
These proposals shall take account of the interdependence of the agricultural matters mentioned in this Section.
2. European laws or framework laws shall establish the common organisation of the market provided for in Article III- 124(1) and the other provisions necessary for the achievement of the objectives of the common agricultural policy and the common fisheries policy. They shall be adopted after consultation of the Economic and Social Committee.
3. The Council of Ministers, on a proposal from the Commission, shall adopt the European regulations or decisions on fixing prices, levies, aid and quantitative limitations and on the fixing and allocation of fishing opportunities.
4. In accordance with paragraph 2, the national market organisations may be replaced by the common organisation provided for in Article III-124(1) if:
(a) the common organisation offers Member States which are opposed to this measure and which have an organisation of their own for the production in question equivalent safeguards for the employment and standard of living of the producers concerned, account being taken of the adjustments that will be possible and the specialisation that will be needed with the passage of time;
(b) such an organisation ensures conditions for trade within the Union similar to those existing in a national market.
5. If a common organisation for certain raw materials is established before a common organisation exists for the corresponding processed products, such raw materials as are used for processed products intended for export to third countries may be imported from outside the Union.
***
You can draw your own conclusions, but I would say that once more what little change there is between the current TEC and the ToL can essentially be credited to the European Convention.
Terminology and referrals apart, the structure of draft Constitution and the ToL provision is identical and the wording almost so. The visible or substantial amendments were the following:
Article 37(1) and the beginning of paragraph 2 had become obsolete by the Conference of Stresa (1958) and the subsequent decisions, at the beginning of the 1960’s, to launch the common agricultural policy (CAP). Deleting these references was a tidying up exercise.
The European Parliament was strengthened by giving it co-decision powers concerning the upper level of secondary norms, instead of mere consultative powers.
Although acting on proposals by the Commission, the Council retained its extensive powers to make the concrete CAP decisions.
***
There is not that much to add about the corresponding Article III-231 of the Treaty establishing a Constitution for Europe (OJ 16.12.2004 C 310/101-102). I counted four instances of different wording, but without material effect.
***
Curiosity has been a noteworthy human trait, at least from the Garden of Eden, so let us take a look at one change of no concern to us, as the IGC 2007 told us in point 49(e).
What happens to the French version without touching upon the English one?
Point 49(e) offers us the beginning of an answer (JO 17.12.2007 C 306/55):
e) dans le premier membre de phrase du paragraphe 4 renuméroté 5, le mot «existe» est remplacé par «n'existe».
Perhaps the rest will be evident if we look at the French version of Article 37 TEC (JO 29.12.2006 C 321 E/56):
4. S’il est créé une organisation commune pour certaines matières premières, sans qu’il existe encore une organisation commune pour les produits de transformation correspondants, les matières premières en cause utilisées pour les produits de transformation destinés à l’exportation vers les pays tiers peuvent être importées de l’extérieur de la Communauté.
So, we have been confronted with one of the wonders of French grammar; by the way, an error uncorrected in the draft Constitution but remedied in the Constitutional Treaty. The IGC 2004 did some good, after all. Now the ungrateful French have to wait at least until the beginning of 2009 to enjoy the fruits of its labours.
Ralf Grahn
Once again we see a provision where the real originator of the amending Lisbon Treaty is the European Convention, chaired by Valéry Giscard d’Estaing.
***
Point 49 of the Treaty of Lisbon (ToL) takes on Article 37 of the Treaty establishing the European Community. Here is what the intergovernmental conference (IGC 20007) had to say about the provision, which becomes part of the renamed Treaty on the Functioning of the European Union (TFEU). See Official Journal (OJ) 17.12.2007 C 306/53-54:
49) Article 37 shall be amended as follows:
(a) paragraph 1 shall be deleted;
(b) paragraph 2 shall be renumbered 1; the words ‘Having taken into account the work of the Conference provided for in paragraph 1, after consulting the Economic and Social Committee and within two years of the entry into force of the Treaty, the Commission shall submit proposals’ shall be replaced by ‘The Commission shall submit proposals’, and the third subparagraph shall be deleted;
(c) the following paragraphs shall be inserted as new paragraphs 2 and 3, and the remaining paragraphs shall be renumbered accordingly:
‘2. The European Parliament and the Council, acting in accordance with the ordinary legislative procedure and after consulting the Economic and Social Committee, shall establish the common organisation of agricultural markets provided for in Article 34(1) and the other provisions necessary for the pursuit of the objectives of the common agricultural policy and the common fisheries policy;
3. The Council, on a proposal from the Commission, shall adopt measures on fixing prices, levies, aid and quantitative limitations and on the fixing and allocation of fishing opportunities.’;
(d) in the introductory words to paragraph 3 renumbered 4, the words ‘The Council may, acting by a qualified majority and in accordance with paragraph 2, replace the national market organisations by the common organisation’ shall be replaced by ‘In accordance with paragraph 2, the national market organisations may be replaced by the common organisation’;
(e) at the beginning of paragraph 4 renumbered 5, a change shall be made to the French which does not concern the English version.
***
Because nobody can be sure that the Lisbon Treaty will survive the ratification gauntlet, the IGC 2007 shows its paternal concern by stimulating our reading of the current treaties. The latest consolidated version of the treaties and, more precisely, the provision is found in OJ 29.12.2006 C 321 E/56, where it fills the whole page:
Article 37 TEC
1. In order to evolve the broad lines of a common agricultural policy, the Commission shall, immediately this Treaty enters into force, convene a conference of the Member States with a view to making a comparison of their agricultural policies, in particular by producing a statement of their resources and needs.
2. Having taken into account the work of the Conference provided for in paragraph 1, after consulting the Economic and Social Committee and within two years of the entry into force of this Treaty, the Commission shall submit proposals for working out and implementing the common agricultural policy, including the replacement of the national organisations by one of the forms of common organisation provided for in Article 34(1), and for implementing the measures specified in this title.
These proposals shall take account of the interdependence of the agricultural matters mentioned in this title.
The Council shall, on a proposal from the Commission and after consulting the European Parliament, acting by a qualified majority, make regulations, issue directives, or take decisions, without prejudice to any recommendations it may also make.
3. The Council may, acting by a qualified majority and in accordance with paragraph 2, replace the national market organisations by the common organisation provided for in Article 34(1) if:
(a) the common organisation offers Member States which are opposed to this measure and which have an organisation of their own for the production in question equivalent safeguards for the employment and standard of living of the producers concerned, account being taken of the adjustments that will be possible and the specialisation that will be needed with the passage of time;
(b) such an organisation ensures conditions for trade within the Community similar to those existing in a national market.
4. If a common organisation for certain raw materials is established before a common organisation exists for the corresponding processed products, such raw materials as are used for processed products intended for export to third countries may be imported from outside the Community.
***
Acquainted with the situation ‘de lege lata’ we have to consider the chance that an EU treaty reform could actually enter into force this time around. Express amendments, horizontal amendments and renumbering (including referrals) have to be joined to achieve the wording ‘de lege ferenda’, and we superimpose the context of the Article:
Part Three Policies and internal actions of the Union
Title II (renumbered Title III) Agriculture and fisheries
Article 37 TFEU (ToL), renumbered Article 43 TFEU
1. The Commission shall submit proposals for working out and implementing the common agricultural policy, including the replacement of the national organisations by one of the forms of common organisation provided for in Article 34(1) [ToL, renumbered Article 40(1) TFEU], and for implementing the measures specified in this title.
These proposals shall take account of the interdependence of the agricultural matters mentioned in this title.
2. The European Parliament and the Council, acting in accordance with the ordinary legislative procedure and after consulting the Economic and Social Committee, shall establish the common organisation of agricultural markets provided for in Article 34(1) [ToL, renumbered Article 40(1) TFEU] and the other provisions necessary for the pursuit of the objectives of the common agricultural policy and the common fisheries policy.
3. The Council, on a proposal from the Commission, shall adopt measures on fixing prices, levies, aid and quantitative limitations and on the fixing and allocation of fishing opportunities.
4. In accordance with paragraph 2, the national market organisations may be replaced by the common organisation provided for in Article 34(1) [ToL, renumbered Article 40(1) TFEU] if:
(a) the common organisation offers Member States which are opposed to this measure and which have an organisation of their own for the production in question equivalent safeguards for the employment and standard of living of the producers concerned, account being taken of the adjustments that will be possible and the specialisation that will be needed with the passage of time;
(b) such an organisation ensures conditions for trade within the Union similar to those existing in a national market.
5. If a common organisation for certain raw materials is established before a common organisation exists for the corresponding processed products, such raw materials as are used for processed products intended for export to third countries may be imported from outside the Union.
***
Even a short consolidation exercise easily leads to error, so I use the opportunity to check my result against some of those who have gone before me, namely the IIEA, FCO, Statewatch and Fischer consolidations.
More exact references to these and other existing as well as coming consolidated language versions are to be found in today’s earlier post ‘Consolidated EU Lisbon Treaty Update 29 March 2008’, including the Post Scriptum:
http://grahnlaw.blogspot.com/2008/03/consolidated-eu-lisbon-treaty-update-29.html
***
You are now offered the following piece in the jigsaw puzzle. The European Convention proposed the following Article III-127 of the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/52):
Article III-127 Draft Constitution
1. The Commission shall submit proposals for working out and implementing the common agricultural policy, including the replacement of the national organisations by one of the forms of common organisation provided for in Article III- 124(1), and for implementing the measures referred to in this Section.
These proposals shall take account of the interdependence of the agricultural matters mentioned in this Section.
2. European laws or framework laws shall establish the common organisation of the market provided for in Article III- 124(1) and the other provisions necessary for the achievement of the objectives of the common agricultural policy and the common fisheries policy. They shall be adopted after consultation of the Economic and Social Committee.
3. The Council of Ministers, on a proposal from the Commission, shall adopt the European regulations or decisions on fixing prices, levies, aid and quantitative limitations and on the fixing and allocation of fishing opportunities.
4. In accordance with paragraph 2, the national market organisations may be replaced by the common organisation provided for in Article III-124(1) if:
(a) the common organisation offers Member States which are opposed to this measure and which have an organisation of their own for the production in question equivalent safeguards for the employment and standard of living of the producers concerned, account being taken of the adjustments that will be possible and the specialisation that will be needed with the passage of time;
(b) such an organisation ensures conditions for trade within the Union similar to those existing in a national market.
5. If a common organisation for certain raw materials is established before a common organisation exists for the corresponding processed products, such raw materials as are used for processed products intended for export to third countries may be imported from outside the Union.
***
You can draw your own conclusions, but I would say that once more what little change there is between the current TEC and the ToL can essentially be credited to the European Convention.
Terminology and referrals apart, the structure of draft Constitution and the ToL provision is identical and the wording almost so. The visible or substantial amendments were the following:
Article 37(1) and the beginning of paragraph 2 had become obsolete by the Conference of Stresa (1958) and the subsequent decisions, at the beginning of the 1960’s, to launch the common agricultural policy (CAP). Deleting these references was a tidying up exercise.
The European Parliament was strengthened by giving it co-decision powers concerning the upper level of secondary norms, instead of mere consultative powers.
Although acting on proposals by the Commission, the Council retained its extensive powers to make the concrete CAP decisions.
***
There is not that much to add about the corresponding Article III-231 of the Treaty establishing a Constitution for Europe (OJ 16.12.2004 C 310/101-102). I counted four instances of different wording, but without material effect.
***
Curiosity has been a noteworthy human trait, at least from the Garden of Eden, so let us take a look at one change of no concern to us, as the IGC 2007 told us in point 49(e).
What happens to the French version without touching upon the English one?
Point 49(e) offers us the beginning of an answer (JO 17.12.2007 C 306/55):
e) dans le premier membre de phrase du paragraphe 4 renuméroté 5, le mot «existe» est remplacé par «n'existe».
Perhaps the rest will be evident if we look at the French version of Article 37 TEC (JO 29.12.2006 C 321 E/56):
4. S’il est créé une organisation commune pour certaines matières premières, sans qu’il existe encore une organisation commune pour les produits de transformation correspondants, les matières premières en cause utilisées pour les produits de transformation destinés à l’exportation vers les pays tiers peuvent être importées de l’extérieur de la Communauté.
So, we have been confronted with one of the wonders of French grammar; by the way, an error uncorrected in the draft Constitution but remedied in the Constitutional Treaty. The IGC 2004 did some good, after all. Now the ungrateful French have to wait at least until the beginning of 2009 to enjoy the fruits of its labours.
Ralf Grahn
Consolidated EU Lisbon Treaty Update 29 March 2008
My search for readable, consolidated versions of the coming EU Reform Treaty, the Treaty of Lisbon, started in October 2007 and continues until the Council has published consolidated versions of the Lisbon Treaty in every official language of the European Union.
The goal is in sight, but we are not yet there. Therefore I want to present a short update, which builds on the latest relevant posts.
***
The latest overview of existing consolidated language versions is to be found in the 5 March 2008 post ‘EU UE: Lisbon Lissabon Lisboa Lisbonne Lisbona Lisboa’:
http://grahnlaw.blogspot.com/2008/03/eu-ue-lisbon-lissabon-lisboa-lisbonne.html
***
Then there is the 25 March 2008 addendum ‘Complete French Consolidated Lisbon Treaty’ about two language versions. The Swedish pocket version has now been published, and since the post I have received my own copy. It was a positive surprise that it contains the Charter of Fundamental Rights, Protocols, a Table of equivalences and a five page Register in addition to the consolidated treaty texts.
The post spread the announcement of a new French consolidated version by Christine Kaddous and Fabrice Picod:
http://grahnlaw.blogspot.com/2008/03/complete-french-consolidated-lisbon.html
***
The latest addition was the confirmation in the press release of the government of Finland that the Council is actually going to publish consolidated versions of the Treaty of Lisbon in every official language of the European Union, in April. See the 27 March 2008 post ‘Finland: EU Lisbon Treaty ratification bill’
http://grahnlaw.blogspot.com/2008/03/finland-eu-lisbon-treaty-ratification.html
***
Naturally, it is a great step forward when there are consolidated versions of the Lisbon Treaty available to all EU citizens, but experience has shown that both printed and other web versions are still in demand.
In order to keep the readers of this blog informed, I appreciate if you tell me about new consolidations and secondary literature on the Treaty of Lisbon (and the European Union in general), such as official documents, brochures, commentaries, scholarly assessments and textbooks in different languages.
Ralf Grahn
P.S. Updated update: The Commission has quietly updated its Questions and Answers section about the Lisbon Treaty in the following way:
“A consolidated version of the Treaty will be published on 15 April on the web and on 9 May on paper version.”
http://europa.eu/lisbon_treaty/faq/index_en.htm#20
The goal is in sight, but we are not yet there. Therefore I want to present a short update, which builds on the latest relevant posts.
***
The latest overview of existing consolidated language versions is to be found in the 5 March 2008 post ‘EU UE: Lisbon Lissabon Lisboa Lisbonne Lisbona Lisboa’:
http://grahnlaw.blogspot.com/2008/03/eu-ue-lisbon-lissabon-lisboa-lisbonne.html
***
Then there is the 25 March 2008 addendum ‘Complete French Consolidated Lisbon Treaty’ about two language versions. The Swedish pocket version has now been published, and since the post I have received my own copy. It was a positive surprise that it contains the Charter of Fundamental Rights, Protocols, a Table of equivalences and a five page Register in addition to the consolidated treaty texts.
The post spread the announcement of a new French consolidated version by Christine Kaddous and Fabrice Picod:
http://grahnlaw.blogspot.com/2008/03/complete-french-consolidated-lisbon.html
***
The latest addition was the confirmation in the press release of the government of Finland that the Council is actually going to publish consolidated versions of the Treaty of Lisbon in every official language of the European Union, in April. See the 27 March 2008 post ‘Finland: EU Lisbon Treaty ratification bill’
http://grahnlaw.blogspot.com/2008/03/finland-eu-lisbon-treaty-ratification.html
***
Naturally, it is a great step forward when there are consolidated versions of the Lisbon Treaty available to all EU citizens, but experience has shown that both printed and other web versions are still in demand.
In order to keep the readers of this blog informed, I appreciate if you tell me about new consolidations and secondary literature on the Treaty of Lisbon (and the European Union in general), such as official documents, brochures, commentaries, scholarly assessments and textbooks in different languages.
Ralf Grahn
P.S. Updated update: The Commission has quietly updated its Questions and Answers section about the Lisbon Treaty in the following way:
“A consolidated version of the Treaty will be published on 15 April on the web and on 9 May on paper version.”
http://europa.eu/lisbon_treaty/faq/index_en.htm#20
Friday, 28 March 2008
EU TFEU: CAP competition rules and state aid
In principle, the common agricultural policy (CAP) is exempt from the rules on competition and state aid deemed beneficial for the internal market in general. The European Union’s Treaty of Lisbon extends the European Parliament’s power to co-legislate, but changes nothing in substance at the treaty level.
On the other hand, at the level of secondary legislation a more nuanced picture emerges regarding the role of competition and state aid in production of and trade in agricultural products.
***
We arrive at Article 36 of the Treaty establishing the European Community (TEC). The intergovernmental conference (IGC 2007) actually mentions amendments to be made in what becomes the Treaty on the Functioning of the European Union (TFEU). Here is what the Treaty of Lisbon (ToL) has to say (OJ 17.12.2007 C 306/53):
48) Article 36 shall be amended as follows:
(a) in the first paragraph, the words ‘the European Parliament and’ shall be inserted before ‘the Council’ and the words ‘and (3)’ shall be deleted;
(b) in the second paragraph, the introductory sentence shall be replaced by the following:
‘The Council, on a proposal from the Commission, may authorise the granting of aid:’.
***
Bringing the proposed amendments into context requires a trip to the current Article 36 TEC (found in the latest consolidated version of the existing treaties, OJ 29.12.2006 C 321 E/55):
Article 36 TEC
The provisions of the Chapter relating to rules on competition shall apply to production of and trade in agricultural products only to the extent determined by the Council within the framework of Article 37(2) and (3) and in accordance with the procedure laid down therein, account being taken of the objectives set out in Article 33.
The Council may, in particular, authorise the granting of aid:
(a) for the protection of enterprises handicapped by structural or natural conditions;
(b) within the framework of economic development programmes.
***
The new Lisbon Treaty wording is achieved by inserting the express amendments, adding the context of the provision and taking note of the future renumbering of the Article in question and its referrals (OJ 17.12.2007 C 306/207). No horizontal amendments seem to apply, so the amended Article 36 should look like this:
Part Three Policies and internal actions of the Union
Title II (renumbered Title III) Agriculture and fisheries
Article 36 TFEU (ToL), renumbered Article 42 TFEU
The provisions of the Chapter relating to rules on competition shall apply to production of and trade in agricultural products only to the extent determined by the European Parliament and the Council within the framework of Article 37(2) [ToL, renumbered Article 43(2) TFEU] and in accordance with the procedure laid down therein, account being taken of the objectives set out in Article 33 [ToL, renumbered Article 39 TFEU].
The Council, on a proposal from the Commission, may authorise the granting of aid:
(a) for the protection of enterprises handicapped by structural or natural conditions;
(b) within the framework of economic development programmes.
***
The European Convention presented its view in Article III-126 of the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/52):
Article III-126 Draft Constitution
1. The Section relating to rules on competition shall apply to production of and trade in agricultural products only to the extent determined by European laws or framework laws in accordance with Article III-127(2), having regard to the objectives set out in Article III-123.
2. The Council of Ministers, on a proposal from the Commission, may adopt a European regulation or decision authorising the granting of aid:
(a) for the protection of enterprises handicapped by structural or natural conditions;
(b) within the framework of economic development programmes.
***
European laws or framework laws meant the ordinary legislative procedure, where the Commission makes a proposal and the Council and the European Parliament acts as joint legislators. In the first paragraph the draft Constitution upgraded the European Parliament from being merely consulted.
The second paragraph added the mention that the Council authorises the granting of aid on a proposal from the Commission. But was this a real change, taking Article 37 TEC into account?
***
Article III-230 of the Treaty establishing a Constitution for Europe was practically the same as the draft Constitution (OJ 16.12.2004 C 310/101).
***
In principle, normal EC (EU) competition and state aid rules do not apply to agricultural production and trade within the context of the CAP. On the contrary, examples of state aid which can be authorised are mentioned.
A general search of EC competition policy can start from the Commission’s Competition web page:
http://ec.europa.eu/comm/competition/index_en.html
The reader who desires an introduction to state aid rules could take a look at the Commission’s web page ‘State Aid control – Overview’:
http://ec.europa.eu/comm/competition/state_aid/overview/index_en.cfm
‘Vademecum Community rules on state aid’, with a view to Structural Fund operations and last updated 15 February 2007:
http://ec.europa.eu/comm/competition/state_aid/studies_reports/vademecum_on_rules_2007_en.pdf
***
In practice, the common agricultural policy (CAP) is less averse to the competition and state aid rules of European Community (European Union) than the main principle mentioned above would lead one to believe.
Take note of Council Regulation (EC) No 1184/2006 of 24 July 2006 applying certain rules of competition to the production of, and trade in, agricultural products (OJ 4.8.2006 L 214/7):
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2006:214:0007:0009:EN:PDF
A presentation of state aid rules is found on the Commission’s web page Agriculture and Rural Development ‘State Aid: introduction’:
http://ec.europa.eu/agriculture/stateaid/index_en.htm
The Scadplus pages offer an introduction to ‘State aid in the agricultural sector’:
http://europa.eu/scadplus/leg/en/lvb/l11082.htm
Ralf Grahn
On the other hand, at the level of secondary legislation a more nuanced picture emerges regarding the role of competition and state aid in production of and trade in agricultural products.
***
We arrive at Article 36 of the Treaty establishing the European Community (TEC). The intergovernmental conference (IGC 2007) actually mentions amendments to be made in what becomes the Treaty on the Functioning of the European Union (TFEU). Here is what the Treaty of Lisbon (ToL) has to say (OJ 17.12.2007 C 306/53):
48) Article 36 shall be amended as follows:
(a) in the first paragraph, the words ‘the European Parliament and’ shall be inserted before ‘the Council’ and the words ‘and (3)’ shall be deleted;
(b) in the second paragraph, the introductory sentence shall be replaced by the following:
‘The Council, on a proposal from the Commission, may authorise the granting of aid:’.
***
Bringing the proposed amendments into context requires a trip to the current Article 36 TEC (found in the latest consolidated version of the existing treaties, OJ 29.12.2006 C 321 E/55):
Article 36 TEC
The provisions of the Chapter relating to rules on competition shall apply to production of and trade in agricultural products only to the extent determined by the Council within the framework of Article 37(2) and (3) and in accordance with the procedure laid down therein, account being taken of the objectives set out in Article 33.
The Council may, in particular, authorise the granting of aid:
(a) for the protection of enterprises handicapped by structural or natural conditions;
(b) within the framework of economic development programmes.
***
The new Lisbon Treaty wording is achieved by inserting the express amendments, adding the context of the provision and taking note of the future renumbering of the Article in question and its referrals (OJ 17.12.2007 C 306/207). No horizontal amendments seem to apply, so the amended Article 36 should look like this:
Part Three Policies and internal actions of the Union
Title II (renumbered Title III) Agriculture and fisheries
Article 36 TFEU (ToL), renumbered Article 42 TFEU
The provisions of the Chapter relating to rules on competition shall apply to production of and trade in agricultural products only to the extent determined by the European Parliament and the Council within the framework of Article 37(2) [ToL, renumbered Article 43(2) TFEU] and in accordance with the procedure laid down therein, account being taken of the objectives set out in Article 33 [ToL, renumbered Article 39 TFEU].
The Council, on a proposal from the Commission, may authorise the granting of aid:
(a) for the protection of enterprises handicapped by structural or natural conditions;
(b) within the framework of economic development programmes.
***
The European Convention presented its view in Article III-126 of the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/52):
Article III-126 Draft Constitution
1. The Section relating to rules on competition shall apply to production of and trade in agricultural products only to the extent determined by European laws or framework laws in accordance with Article III-127(2), having regard to the objectives set out in Article III-123.
2. The Council of Ministers, on a proposal from the Commission, may adopt a European regulation or decision authorising the granting of aid:
(a) for the protection of enterprises handicapped by structural or natural conditions;
(b) within the framework of economic development programmes.
***
European laws or framework laws meant the ordinary legislative procedure, where the Commission makes a proposal and the Council and the European Parliament acts as joint legislators. In the first paragraph the draft Constitution upgraded the European Parliament from being merely consulted.
The second paragraph added the mention that the Council authorises the granting of aid on a proposal from the Commission. But was this a real change, taking Article 37 TEC into account?
***
Article III-230 of the Treaty establishing a Constitution for Europe was practically the same as the draft Constitution (OJ 16.12.2004 C 310/101).
***
In principle, normal EC (EU) competition and state aid rules do not apply to agricultural production and trade within the context of the CAP. On the contrary, examples of state aid which can be authorised are mentioned.
A general search of EC competition policy can start from the Commission’s Competition web page:
http://ec.europa.eu/comm/competition/index_en.html
The reader who desires an introduction to state aid rules could take a look at the Commission’s web page ‘State Aid control – Overview’:
http://ec.europa.eu/comm/competition/state_aid/overview/index_en.cfm
‘Vademecum Community rules on state aid’, with a view to Structural Fund operations and last updated 15 February 2007:
http://ec.europa.eu/comm/competition/state_aid/studies_reports/vademecum_on_rules_2007_en.pdf
***
In practice, the common agricultural policy (CAP) is less averse to the competition and state aid rules of European Community (European Union) than the main principle mentioned above would lead one to believe.
Take note of Council Regulation (EC) No 1184/2006 of 24 July 2006 applying certain rules of competition to the production of, and trade in, agricultural products (OJ 4.8.2006 L 214/7):
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2006:214:0007:0009:EN:PDF
A presentation of state aid rules is found on the Commission’s web page Agriculture and Rural Development ‘State Aid: introduction’:
http://ec.europa.eu/agriculture/stateaid/index_en.htm
The Scadplus pages offer an introduction to ‘State aid in the agricultural sector’:
http://europa.eu/scadplus/leg/en/lvb/l11082.htm
Ralf Grahn
Thursday, 27 March 2008
Finland: EU Lisbon Treaty ratification bill
The government of Finland has approved the bill on ratification of the EU Treaty of Lisbon. Formally the bill is sent to the Parliament by the president tomorrow, 28 March 2008. The government’s press release recapitulates the main points of the Lisbon Treaty, and it misses only the latest of the six ratifying member states, Bulgaria.
Bearing in mind the Council’s reticence to publish consolidated versions of the amending treaty, the Finnish government’s press release confirms one interesting detail of general European interest, long awaited, namely that the Council is relenting, although the press release does not call it that.
It just states that a consolidated version of the treaties is expected to be finalised in April, in every official language of the European Union.
The press release was available in Finnish and Swedish a short while ago, but not (yet?) in English.
Ralf Grahn
Hallituksen esitys Lissabonin sopimuksen hyväksymisestä eduskunnan käsiteltäväksi; Tiedote 99/2008, Ulkoasiainministeriö, 27.3.2008 13:59;
Link in Finnish:
http://www.valtioneuvosto.fi/ajankohtaista/tiedotteet/tiedote/fi.jsp?oid=224386
Regeringens proposition om godkännande av Lissabonfördraget överlämnas till riksdagen; Pressmeddelande 99/2008, Utrikesministeriet, 27.3.2008 14:02;
Link in Swedish:
http://www.valtioneuvosto.fi/ajankohtaista/tiedotteet/tiedote/fi.jsp?oid=224388
Bearing in mind the Council’s reticence to publish consolidated versions of the amending treaty, the Finnish government’s press release confirms one interesting detail of general European interest, long awaited, namely that the Council is relenting, although the press release does not call it that.
It just states that a consolidated version of the treaties is expected to be finalised in April, in every official language of the European Union.
The press release was available in Finnish and Swedish a short while ago, but not (yet?) in English.
Ralf Grahn
Hallituksen esitys Lissabonin sopimuksen hyväksymisestä eduskunnan käsiteltäväksi; Tiedote 99/2008, Ulkoasiainministeriö, 27.3.2008 13:59;
Link in Finnish:
http://www.valtioneuvosto.fi/ajankohtaista/tiedotteet/tiedote/fi.jsp?oid=224386
Regeringens proposition om godkännande av Lissabonfördraget överlämnas till riksdagen; Pressmeddelande 99/2008, Utrikesministeriet, 27.3.2008 14:02;
Link in Swedish:
http://www.valtioneuvosto.fi/ajankohtaista/tiedotteet/tiedote/fi.jsp?oid=224388
EU TFEU: CAP flanking measures
Can the dissemination of knowledge and the promotion of foodstuffs save European agriculture?
Yes or no, the Lisbon Treaty of the European Union preserves the supporting or flanking measures of the common agricultural policy (CAP) at treaty level.
***
Article 35 of the Treaty establishing the European Community (TEC) is one of those basic provisions left without specific mention by the Treaty of Lisbon (ToL). See OJ 17.12.2007 C 306/53. The intergovernmental conference (IGC 2007) only presents the future numbering in the Tables of equivalences annexed to the Lisbon Treaty (OJ 17.12.2007 C 306/207).
We fetch the present text from the latest consolidated version of the current treaties (OJ 29.12.2006 C 321 E/55), add the framework on top and note the future numbering of the referral:
Part Three Policies and internal actions of the Union
Title II (renumbered Title III) Agriculture and fisheries
Article 35 TFEU (ToL), renumbered Article 41 TFEU
To enable the objectives set out in Article 33 [ToL, renumbered Article 39 TFEU] to be attained, provision may be made within the framework of the common agricultural policy for measures such as:
(a) an effective coordination of efforts in the spheres of vocational training, of research and of the dissemination of agricultural knowledge; this may include joint financing of projects or institutions;
(b) joint measures to promote consumption of certain products.
***
The corresponding Article of the draft Treaty establishing a Constitution for Europe was III-125 (OJ 18.7.2003 C 169/52). Naturally, the referral was different, but otherwise the wording was the same as in the current TEC.
Article III-229 was home to the corresponding, unchanged provision of the Treaty establishing a Constitution for Europe.
***
We can see a hierarchy of norms within the Title on agriculture and fisheries if we look back at the provisions we have dealt with until today:
Article 32 TFEU (ToL), renumbered Article 38 TFEU, presents the scope of the common agricultural and fisheries policy (CAP).
Article 33 TFEU (ToL), renumbered Article 39 TFEU, lists the CAP objectives (in all their post-war glory).
Article 34 TFEU (ToL), renumbered Article 40 TFEU, adds the main means to attain the goals, namely the common agricultural markets organisation.
Article 35 TFEU (ToL), renumbered Article 41 TFEU, is rather the poor relation of the preceding strong-arm provision, allowing support or flanking measures supplementing the interventionist means.
Gaining and disseminating knowledge are time-honoured crafts of modernisation.
***
Now for a subjective discussion starter (or stopper):
Joint measures to promote consumption of certain products may raise a few eyebrows. If the Commission (ultimately the member states) finds that there are lakes of fatty milk or intoxicating wine hard to dispose of, they are at liberty to devise measures to ‘force-feed’ populations already obese or intemperate.
Given the framework of CAP decision making we can not rest assured that human health or consumer considerations will top the agenda.
***
Earlier CAP posts have suggested further reading for interested citizens. An additional CAP primer is offered by the Wikipedia article ‘Common Agricultural Policy’. The article has a UK perspective, and despite the latest modification on 25 March 2008 it is in need of editing and updating, but it is still a useful introduction:
http://en.wikipedia.org/wiki/Common_Agricultural_Policy
Ralf Grahn
Yes or no, the Lisbon Treaty of the European Union preserves the supporting or flanking measures of the common agricultural policy (CAP) at treaty level.
***
Article 35 of the Treaty establishing the European Community (TEC) is one of those basic provisions left without specific mention by the Treaty of Lisbon (ToL). See OJ 17.12.2007 C 306/53. The intergovernmental conference (IGC 2007) only presents the future numbering in the Tables of equivalences annexed to the Lisbon Treaty (OJ 17.12.2007 C 306/207).
We fetch the present text from the latest consolidated version of the current treaties (OJ 29.12.2006 C 321 E/55), add the framework on top and note the future numbering of the referral:
Part Three Policies and internal actions of the Union
Title II (renumbered Title III) Agriculture and fisheries
Article 35 TFEU (ToL), renumbered Article 41 TFEU
To enable the objectives set out in Article 33 [ToL, renumbered Article 39 TFEU] to be attained, provision may be made within the framework of the common agricultural policy for measures such as:
(a) an effective coordination of efforts in the spheres of vocational training, of research and of the dissemination of agricultural knowledge; this may include joint financing of projects or institutions;
(b) joint measures to promote consumption of certain products.
***
The corresponding Article of the draft Treaty establishing a Constitution for Europe was III-125 (OJ 18.7.2003 C 169/52). Naturally, the referral was different, but otherwise the wording was the same as in the current TEC.
Article III-229 was home to the corresponding, unchanged provision of the Treaty establishing a Constitution for Europe.
***
We can see a hierarchy of norms within the Title on agriculture and fisheries if we look back at the provisions we have dealt with until today:
Article 32 TFEU (ToL), renumbered Article 38 TFEU, presents the scope of the common agricultural and fisheries policy (CAP).
Article 33 TFEU (ToL), renumbered Article 39 TFEU, lists the CAP objectives (in all their post-war glory).
Article 34 TFEU (ToL), renumbered Article 40 TFEU, adds the main means to attain the goals, namely the common agricultural markets organisation.
Article 35 TFEU (ToL), renumbered Article 41 TFEU, is rather the poor relation of the preceding strong-arm provision, allowing support or flanking measures supplementing the interventionist means.
Gaining and disseminating knowledge are time-honoured crafts of modernisation.
***
Now for a subjective discussion starter (or stopper):
Joint measures to promote consumption of certain products may raise a few eyebrows. If the Commission (ultimately the member states) finds that there are lakes of fatty milk or intoxicating wine hard to dispose of, they are at liberty to devise measures to ‘force-feed’ populations already obese or intemperate.
Given the framework of CAP decision making we can not rest assured that human health or consumer considerations will top the agenda.
***
Earlier CAP posts have suggested further reading for interested citizens. An additional CAP primer is offered by the Wikipedia article ‘Common Agricultural Policy’. The article has a UK perspective, and despite the latest modification on 25 March 2008 it is in need of editing and updating, but it is still a useful introduction:
http://en.wikipedia.org/wiki/Common_Agricultural_Policy
Ralf Grahn
Wednesday, 26 March 2008
EU TFEU: Common organisation of agricultural markets
The common agricultural policy of the European Community (European Union) progresses slowly towards an EU wide internal market in agricultural products instead of national markets, but it basically excludes the rest of the world from the benefits of free trade.
This post offers a look at the regulatory and budgetary ‘tools’ of the CAP in the light of the Lisbon Treaty, and it gives a few hints on further reading.
***
In the Treaty of Lisbon (ToL) the intergovernmental conference (IGC 2007) does not specifically mention Article 34 of the Treaty establishing the European Community (TEC) among the amendments (see OJ 17.12.2007 C 306/53).
The Treaty is renamed the Treaty on the Functioning of the European Union (TFEU). We indicate the new framework, look out for horizontal amendments (replacing ‘Community’ by ‘Union’) and take the coming renumbering into account concerning the provision and its referrals (Tables of equivalences, OJ 17.12.2007 C 306/207). This is how the provision should look according to the Lisbon Treaty, based on the latest consolidated version of the TEC (OJ 29.12.2006 C 321 E/54-55):
Part Three Policies and internal actions of the Union
Title II (renumbered Title III) Agriculture and fisheries
Article 34 TFEU (ToL), renumbered Article 40 TFEU
1. In order to attain the objectives set out in Article 33 [ToL, renumbered Article 39 TFEU] a common organisation of agricultural markets shall be established.
This organisation shall take one of the following forms, depending on the product concerned:
(a) common rules on competition;
(b) compulsory coordination of the various national market organisations;
(c) a European market organisation.
2. The common organisation established in accordance with paragraph 1 may include all measures required to attain the objectives set out in Article 33 [ToL, renumbered Article 39 TFEU], in particular regulation of prices, aids for the production and marketing of the various products, storage and carryover arrangements and common machinery for stabilising imports or exports.
The common organisation shall be limited to pursuit of the objectives set out in Article 33 [ToL, renumbered Article 39 TFEU] and shall exclude any discrimination between producers or consumers within the Union.
Any common price policy shall be based on common criteria and uniform methods of calculation.
3. In order to enable the common organisation referred to in paragraph 1 to attain its objectives, one or more agricultural guidance and guarantee funds may be set up.
***
The European Convention numbered the provision Article III-124 of the draft Treaty establishing a Constitution for Europe. The word ‘Union’ was introduced to take the place of ‘Community’ and the Article referred to was numbered differently, but otherwise not a word was changed (OJ 18.7.2003 C 169/51-52).
The IGC 2004 took over the provision as Article III-228 of the Treaty establishing a Constitution for Europe without changing the wording (OJ 16.12.2004 C 319/100-101).
***
The ‘toolbox’ offered by the provision on common market organisations allows deep cuts in the normal principles of market economy. Here is the description given by the Europa Glossary:
“The common market organisations (CMOs) represent the first pillar of the common agricultural policy (CAP). They are the fundamental market regulation tool governing the production of and trade in agricultural products in all the Member States of the European Union by:
eliminating obstacles to intra-Community trade in agricultural products;
maintaining a common customs barrier with respect to third countries.
Since the reform of the CAP in 2003, most CMOs have been subject to the new system of a single farm payment and decoupling. The Member States which joined the Union on 1 May 2004 participate directly in the new system. Changes have also been made to crisis management arrangements and environmental classification of farms.” See:
http://europa.eu/scadplus/glossary/common_agricultural_markets_en.htm
The Commission’s Scadplus web pages with summaries of legislation offer the basics on ‘Common organisation of the agricultural markets: introduction’, although the page was last updated 27 September 2004. See:
http://europa.eu/scadplus/leg/en/lvb/l11047.htm
A starting point for more up to date information, including latest news, is found on the Commission’s web pages ‘Agriculture and Rural development’:
http://ec.europa.eu/agriculture/index_en.htm
Without outsiders’ views the common agricultural policy (CAP) would be left to government and farming interest insiders. First, a reminder of the sources mentioned in yesterday’s article:
Those who want to understand the present common agricultural policy and its future can turn to the UK House of Lords European Union Committee’s report ‘The Future of the Common Agricultural Policy’, with Volume I: Report (HL Paper 54-I) and Volume II: Evidence (HL Paper 54-II) (7th Report of Session 2007-08, published 6 March 2008):
http://www.publications.parliament.uk/pa/ld200708/ldselect/ldeucom/54/54.pdf
France is known for its addiction to the CAP. The French think tank Notre Europe runs projects which aim at budget reform and CAP reform post 2013. Among a plethora of policy papers there is a fresh one by Eulalia Rubio ‘EUBudget Review: Addressing the Thorny Issues’, published 7 March 2008. The CAP 2013 project is preparing proposals. A presentation including links to preparatory work is offered in English on the following web page (although the French page has been updated later):
http://www.notre-europe.eu/en/axes/competition-cooperation-solidarity/projects/projet/proposals-for-the-cap-post-2013/
Second, I would like to mention three high quality blogs shedding light on the CAP:
CAP Health Check, with Jack Thurston as coordinator and various contributors, describes itself as “Towards better European farming, food and rural policies”:
http://caphealthcheck.eu/
Wyn Grant comments on the Common Agricultural Policy blog:
http://commonagpolicy.blogspot.com/
Jack Thurston manages Farmsubsidy.org dedicated to transparency, with the motto ‘Who gets what from the Common Agricultural Policy’:
http://www.farmsubsidy.org/
Economics, weight in the EU budget, consumer interests, taxpayers, the (developing) world outside the European Union’s customs and quota borders – Clausewitz would have found the CAP too important to be left in the care of vested interests.
Ralf Grahn
This post offers a look at the regulatory and budgetary ‘tools’ of the CAP in the light of the Lisbon Treaty, and it gives a few hints on further reading.
***
In the Treaty of Lisbon (ToL) the intergovernmental conference (IGC 2007) does not specifically mention Article 34 of the Treaty establishing the European Community (TEC) among the amendments (see OJ 17.12.2007 C 306/53).
The Treaty is renamed the Treaty on the Functioning of the European Union (TFEU). We indicate the new framework, look out for horizontal amendments (replacing ‘Community’ by ‘Union’) and take the coming renumbering into account concerning the provision and its referrals (Tables of equivalences, OJ 17.12.2007 C 306/207). This is how the provision should look according to the Lisbon Treaty, based on the latest consolidated version of the TEC (OJ 29.12.2006 C 321 E/54-55):
Part Three Policies and internal actions of the Union
Title II (renumbered Title III) Agriculture and fisheries
Article 34 TFEU (ToL), renumbered Article 40 TFEU
1. In order to attain the objectives set out in Article 33 [ToL, renumbered Article 39 TFEU] a common organisation of agricultural markets shall be established.
This organisation shall take one of the following forms, depending on the product concerned:
(a) common rules on competition;
(b) compulsory coordination of the various national market organisations;
(c) a European market organisation.
2. The common organisation established in accordance with paragraph 1 may include all measures required to attain the objectives set out in Article 33 [ToL, renumbered Article 39 TFEU], in particular regulation of prices, aids for the production and marketing of the various products, storage and carryover arrangements and common machinery for stabilising imports or exports.
The common organisation shall be limited to pursuit of the objectives set out in Article 33 [ToL, renumbered Article 39 TFEU] and shall exclude any discrimination between producers or consumers within the Union.
Any common price policy shall be based on common criteria and uniform methods of calculation.
3. In order to enable the common organisation referred to in paragraph 1 to attain its objectives, one or more agricultural guidance and guarantee funds may be set up.
***
The European Convention numbered the provision Article III-124 of the draft Treaty establishing a Constitution for Europe. The word ‘Union’ was introduced to take the place of ‘Community’ and the Article referred to was numbered differently, but otherwise not a word was changed (OJ 18.7.2003 C 169/51-52).
The IGC 2004 took over the provision as Article III-228 of the Treaty establishing a Constitution for Europe without changing the wording (OJ 16.12.2004 C 319/100-101).
***
The ‘toolbox’ offered by the provision on common market organisations allows deep cuts in the normal principles of market economy. Here is the description given by the Europa Glossary:
“The common market organisations (CMOs) represent the first pillar of the common agricultural policy (CAP). They are the fundamental market regulation tool governing the production of and trade in agricultural products in all the Member States of the European Union by:
eliminating obstacles to intra-Community trade in agricultural products;
maintaining a common customs barrier with respect to third countries.
Since the reform of the CAP in 2003, most CMOs have been subject to the new system of a single farm payment and decoupling. The Member States which joined the Union on 1 May 2004 participate directly in the new system. Changes have also been made to crisis management arrangements and environmental classification of farms.” See:
http://europa.eu/scadplus/glossary/common_agricultural_markets_en.htm
The Commission’s Scadplus web pages with summaries of legislation offer the basics on ‘Common organisation of the agricultural markets: introduction’, although the page was last updated 27 September 2004. See:
http://europa.eu/scadplus/leg/en/lvb/l11047.htm
A starting point for more up to date information, including latest news, is found on the Commission’s web pages ‘Agriculture and Rural development’:
http://ec.europa.eu/agriculture/index_en.htm
Without outsiders’ views the common agricultural policy (CAP) would be left to government and farming interest insiders. First, a reminder of the sources mentioned in yesterday’s article:
Those who want to understand the present common agricultural policy and its future can turn to the UK House of Lords European Union Committee’s report ‘The Future of the Common Agricultural Policy’, with Volume I: Report (HL Paper 54-I) and Volume II: Evidence (HL Paper 54-II) (7th Report of Session 2007-08, published 6 March 2008):
http://www.publications.parliament.uk/pa/ld200708/ldselect/ldeucom/54/54.pdf
France is known for its addiction to the CAP. The French think tank Notre Europe runs projects which aim at budget reform and CAP reform post 2013. Among a plethora of policy papers there is a fresh one by Eulalia Rubio ‘EUBudget Review: Addressing the Thorny Issues’, published 7 March 2008. The CAP 2013 project is preparing proposals. A presentation including links to preparatory work is offered in English on the following web page (although the French page has been updated later):
http://www.notre-europe.eu/en/axes/competition-cooperation-solidarity/projects/projet/proposals-for-the-cap-post-2013/
Second, I would like to mention three high quality blogs shedding light on the CAP:
CAP Health Check, with Jack Thurston as coordinator and various contributors, describes itself as “Towards better European farming, food and rural policies”:
http://caphealthcheck.eu/
Wyn Grant comments on the Common Agricultural Policy blog:
http://commonagpolicy.blogspot.com/
Jack Thurston manages Farmsubsidy.org dedicated to transparency, with the motto ‘Who gets what from the Common Agricultural Policy’:
http://www.farmsubsidy.org/
Economics, weight in the EU budget, consumer interests, taxpayers, the (developing) world outside the European Union’s customs and quota borders – Clausewitz would have found the CAP too important to be left in the care of vested interests.
Ralf Grahn
Tuesday, 25 March 2008
Complete French Consolidated Lisbon Treaty
Every readable version of the EU’s Treaty of Lisbon gives cause for joy to students, teachers, practitioners and active citizens. Since my latest, 22 March 2008 post ‘EU: Consolidated Lisbon Treaty’ I have received publishers’ information about two developments (but I have not yet seen the books myself):
Swedish
It has been announced that the promised pocket version of the Treaty of Lisbon has been published by SNS Förlag.
French
I relay the following information to you, dear readers, about a complete consolidated version of the Lisbon Treaty in French:
Traité sur l’Union européenne / Traité sur le fonctionnement de l’Union européenne
Christine Kaddous / Fabrice Picod
Recueil de textes, paru le 18 février 2008 Staempfli SA (Berne), Bruylant (Bruxelles), L.G.D.J. (Paris) 342 pages, CHF 59.-, 43 euros, ISBN 978-3-7272-9144-9
L’objectif de cet ouvrage est de procurer aux lecteurs un accès aisé aux nouveaux traités sur l’Union européenne et sur le fonctionnement de l’Union européenne, tels qu’ils résultent des modifications apportées par le traité de Lisbonne du 13 décembre 2007.
Il regroupe, dans une version consolidée :
le traité sur l’Union européenne,
le traité sur le fonctionnement de l’Union européenne,
deux tables de concordance,
les protocoles et déclarations,
la Charte des droits fondamentaux de l’Union européenne et les explications y relatives.
Une introduction présente les principaux apports du traité de Lisbonne.
Christine Kaddous, Professeur à l’Université de Genève, Chaire Jean Monnet, dirige le Centre d’études juridiques européennes
Fabrice Picod, Professeur à l’Université Panthéon- Assas (Paris II)
***
I am grateful if you want to share your information on consolidations as well as official documents and secondary literature in different languages on the amending Lisbon Treaty.
Ralf Grahn
Swedish
It has been announced that the promised pocket version of the Treaty of Lisbon has been published by SNS Förlag.
French
I relay the following information to you, dear readers, about a complete consolidated version of the Lisbon Treaty in French:
Traité sur l’Union européenne / Traité sur le fonctionnement de l’Union européenne
Christine Kaddous / Fabrice Picod
Recueil de textes, paru le 18 février 2008 Staempfli SA (Berne), Bruylant (Bruxelles), L.G.D.J. (Paris) 342 pages, CHF 59.-, 43 euros, ISBN 978-3-7272-9144-9
L’objectif de cet ouvrage est de procurer aux lecteurs un accès aisé aux nouveaux traités sur l’Union européenne et sur le fonctionnement de l’Union européenne, tels qu’ils résultent des modifications apportées par le traité de Lisbonne du 13 décembre 2007.
Il regroupe, dans une version consolidée :
le traité sur l’Union européenne,
le traité sur le fonctionnement de l’Union européenne,
deux tables de concordance,
les protocoles et déclarations,
la Charte des droits fondamentaux de l’Union européenne et les explications y relatives.
Une introduction présente les principaux apports du traité de Lisbonne.
Christine Kaddous, Professeur à l’Université de Genève, Chaire Jean Monnet, dirige le Centre d’études juridiques européennes
Fabrice Picod, Professeur à l’Université Panthéon- Assas (Paris II)
***
I am grateful if you want to share your information on consolidations as well as official documents and secondary literature in different languages on the amending Lisbon Treaty.
Ralf Grahn
EU TFEU CAP: Common agricultural policy objectives
The main objectives of common agricultural policy (CAP) of the European Economic Community (EEC) were fixed in the Treaty of Rome in 1957, and the Treaty of Lisbon fifty years later would actually ultimately restore the original Article number, without changing the slightest detail of the contents.
In spite of this immovable background the CAP is a hotly contested policy area and historically the greatest user of Community funds.
The CAP “Helath Check” in 2008, the Budget Review in 2008/09 and the next financial perspective from 2014 are all played out within the framework of the basic treaty provisions.
***
The intergovernmental conference (IGC 2007) had nothing specific to say after Article 32 of the Treaty establishing the European Community (TEC), point 47, until Article 36 TEC, point 48 (OJ 17.12.2007 C 306/33).
The Treaty of Lisbon (ToL) changes the name of the treaty, which becomes the Treaty on the Functioning of the European Union (TFEU), Part Three becomes ‘Policies and internal actions of the Union’ and fisheries are added to Title II (renumbered Title III) which consequently becomes ‘Agriculture and fisheries’ (OJ 17.12.2007 C 306/207).
No horizontal amendments seem to apply to Article 33 TEC, which becomes Article 33 in the Treaty of Lisbon version of the TFEU, but destined for later renumbering to become Article 39 TFEU.
Thus, we present the new setting and retrieve the wording of the provision from the latest consolidated version of the treaties (OJ 29.12.2006 C 321 E/54):
Part Three Policies and internal actions of the Union
Title II (renumbered Title III) Agriculture and fisheries
Article 33 TFEU (ToL), renumbered Article 39 TFEU
1. The objectives of the common agricultural policy shall be:
(a) to increase agricultural productivity by promoting technical progress and by ensuring the rational development of agricultural production and the optimum utilisation of the factors of production, in particular labour;
(b) thus to ensure a fair standard of living for the agricultural community, in particular by increasing the individual earnings of persons engaged in agriculture;
(c) to stabilise markets;
(d) to assure the availability of supplies;
(e) to ensure that supplies reach consumers at reasonable prices.
2. In working out the common agricultural policy and the special methods for its application, account shall be taken of:
(a) the particular nature of agricultural activity, which results from the social structure of agriculture and from structural and natural disparities between the various agricultural regions;
(b) the need to effect the appropriate adjustments by degrees;
(c) the fact that in the Member States agriculture constitutes a sector closely linked with the economy as a whole.
***
The European Convention did not change a comma of corresponding provision of the draft Treaty establishing a Constitution for Europe, Article III-123 (OJ 18.7.2003 C 169/51).
The IGC 2004’s Article III-227 of the Treaty establishing a Constitution for Europe observed the same degree of orthodoxy.
More than that, strict observance is highlighted through the fact that, word for word, the renumbered Article 39 TFEU would be the same as Article 39 of the original Treaty establishing the European Economic Community (Treaty of Rome, 1957).
***
Those who want to understand the present common agricultural policy and its future can turn to the UK House of Lords European Union Committee’s report ‘The Future of the Common Agricultural Policy’, with Volume I: Report (HL Paper 54-I) and Volume II: Evidence (HL Paper 54-II) (7th Report of Session 2007-08, published 6 March 2008):
http://www.publications.parliament.uk/pa/ld200708/ldselect/ldeucom/54/54.pdf
The French think tank Notre Europe runs projects which aim at budget reform and CAP reform post 2013. Among a plethora of policy papers there is a fresh one by Eulalia Rubio ‘EUBudget Review: Addressing the Thorny Issues’, published 7 March 2008. The CAP 2013 project is preparing proposals. A presentation including links to preparatory work is offered in English on the following web page (although the French page has been updated later):
http://www.notre-europe.eu/en/axes/competition-cooperation-solidarity/projects/projet/proposals-for-the-cap-post-2013/
An official tour of CAP legislation and the budget can start from the Commission’s SCADPlus web page Agriculture: General framework:
http://europa.eu/scadplus/leg/en/s04018.htm
Ralf Grahn
In spite of this immovable background the CAP is a hotly contested policy area and historically the greatest user of Community funds.
The CAP “Helath Check” in 2008, the Budget Review in 2008/09 and the next financial perspective from 2014 are all played out within the framework of the basic treaty provisions.
***
The intergovernmental conference (IGC 2007) had nothing specific to say after Article 32 of the Treaty establishing the European Community (TEC), point 47, until Article 36 TEC, point 48 (OJ 17.12.2007 C 306/33).
The Treaty of Lisbon (ToL) changes the name of the treaty, which becomes the Treaty on the Functioning of the European Union (TFEU), Part Three becomes ‘Policies and internal actions of the Union’ and fisheries are added to Title II (renumbered Title III) which consequently becomes ‘Agriculture and fisheries’ (OJ 17.12.2007 C 306/207).
No horizontal amendments seem to apply to Article 33 TEC, which becomes Article 33 in the Treaty of Lisbon version of the TFEU, but destined for later renumbering to become Article 39 TFEU.
Thus, we present the new setting and retrieve the wording of the provision from the latest consolidated version of the treaties (OJ 29.12.2006 C 321 E/54):
Part Three Policies and internal actions of the Union
Title II (renumbered Title III) Agriculture and fisheries
Article 33 TFEU (ToL), renumbered Article 39 TFEU
1. The objectives of the common agricultural policy shall be:
(a) to increase agricultural productivity by promoting technical progress and by ensuring the rational development of agricultural production and the optimum utilisation of the factors of production, in particular labour;
(b) thus to ensure a fair standard of living for the agricultural community, in particular by increasing the individual earnings of persons engaged in agriculture;
(c) to stabilise markets;
(d) to assure the availability of supplies;
(e) to ensure that supplies reach consumers at reasonable prices.
2. In working out the common agricultural policy and the special methods for its application, account shall be taken of:
(a) the particular nature of agricultural activity, which results from the social structure of agriculture and from structural and natural disparities between the various agricultural regions;
(b) the need to effect the appropriate adjustments by degrees;
(c) the fact that in the Member States agriculture constitutes a sector closely linked with the economy as a whole.
***
The European Convention did not change a comma of corresponding provision of the draft Treaty establishing a Constitution for Europe, Article III-123 (OJ 18.7.2003 C 169/51).
The IGC 2004’s Article III-227 of the Treaty establishing a Constitution for Europe observed the same degree of orthodoxy.
More than that, strict observance is highlighted through the fact that, word for word, the renumbered Article 39 TFEU would be the same as Article 39 of the original Treaty establishing the European Economic Community (Treaty of Rome, 1957).
***
Those who want to understand the present common agricultural policy and its future can turn to the UK House of Lords European Union Committee’s report ‘The Future of the Common Agricultural Policy’, with Volume I: Report (HL Paper 54-I) and Volume II: Evidence (HL Paper 54-II) (7th Report of Session 2007-08, published 6 March 2008):
http://www.publications.parliament.uk/pa/ld200708/ldselect/ldeucom/54/54.pdf
The French think tank Notre Europe runs projects which aim at budget reform and CAP reform post 2013. Among a plethora of policy papers there is a fresh one by Eulalia Rubio ‘EUBudget Review: Addressing the Thorny Issues’, published 7 March 2008. The CAP 2013 project is preparing proposals. A presentation including links to preparatory work is offered in English on the following web page (although the French page has been updated later):
http://www.notre-europe.eu/en/axes/competition-cooperation-solidarity/projects/projet/proposals-for-the-cap-post-2013/
An official tour of CAP legislation and the budget can start from the Commission’s SCADPlus web page Agriculture: General framework:
http://europa.eu/scadplus/leg/en/s04018.htm
Ralf Grahn
Monday, 24 March 2008
EU TFEU: Common agriculture and fisheries policy
The common agricultural policy (CAP), including the fisheries policy, of the European Community (European Union) is one of the most conspicuous features of European integration.
Naturally, each farmer and fisherman is a stakeholder, but so is every consumer and taxpayer in the European Union. In short, every citizen of the EU should know the legal and political basics of the CAP.
Here we begin by looking at the fundamental provisions as they stand when the Lisbon Treaty enters into force.
***
Were the European leaders worried enough by the flagging spirits of the so called Eurosceptic anti-EU crowd to devise this supporting action to keep them going and to stimulate recruitment?
Not only was the ‘constitutional concept’ abandoned, but all pretence at plain English (as well as Bulgarian, Czech, Danish, Dutch, Estonian, Finnish, French, German, Greek, Hungarian, Irish, Italian, Latvian, Lithuanian, Maltese, Polish, Portuguese, Romanian, Slovak, Slovenian, Spanish and Swedish).
Anyway, arriving at a new Title we find the intergovernmental conference (IGC 2007) true to its form. Although very little actual change takes place, the master communicators of the IGC 2007 fully used the opportunity to make the reading experience of the amending Treaty of Lisbon (ToL) as unrewarding as possible, requiring the concurrent perusal of the existing treaties to make any sense.
Here is what the Lisbon Treaty has to say at the beginning of the new Title of the Treaty establishing the European Community (TEC), becoming the Treaty on the Functioning of the European Union (TFEU) (OJ 17.12.2007 C 306/53):
AGRICULTURE AND FISHERIES
46) In the heading of Title II, the words ‘AND FISHERIES’ shall be added.
47) Article 32 shall be amended as follows:
(a) in paragraph 1, the following new first subparagraph shall be inserted:
‘1. The Union shall define and implement a common agriculture and fisheries policy.’, the current text of paragraph 1 shall become the second subparagraph.
In the second subparagraph, the word ‘, fisheries’ shall be inserted after ‘agriculture’ in the first sentence and the following sentence shall be added as the last sentence of the subparagraph: ‘References to the common agricultural policy or to agriculture, and the use of the term “agricultural”, shall be understood as also referring to fisheries, having regard to the specific characteristics of this sector.’
(b) in paragraph 2, the words ‘and functioning’ shall be inserted after the word ‘establishment’.
(c) in paragraph 3, the words ‘to this Treaty’ shall be deleted.
***
We have been sent off to fetch the current Article 32 TEC (found in the latest consolidated version of the treaties, OJ 29.12.2006 C 321/53-54):
TITLE II
AGRICULTURE
Article 32 TEC
1. The common market shall extend to agriculture and trade in agricultural products. ‘Agricultural products’ means the products of the soil, of stockfarming and of fisheries and products of first-stage processing directly related to these products.
2. Save as otherwise provided in Articles 33 to 38, the rules laid down for the establishment of the common market shall apply to agricultural products.
3. The products subject to the provisions of Articles 33 to 38 are listed in Annex I to this Treaty.
4. The operation and development of the common market for agricultural products must be accompanied by the establishment of a common agricultural policy.
***
The materials are now at the plant. Assembly can start. This is what appears at the end of the assembly line after joining the numbering of the Tables of equivalences with the express amendments and horizontal amendment 2(g), thrice replacing the ‘common market’ by ‘internal market’:
PART THREE – POLICIES AND INTERNAL ACTIONS OF THE UNION
Title II (renumbered Title III) Agriculture and fisheries
Article 32 TFEU (ToL), renumbered Article 38 TFEU
1. The Union shall define and implement a common agriculture and fisheries policy.
The internal market shall extend to agriculture, fisheries and trade in agricultural products. ‘Agricultural products’ means the products of the soil, of stockfarming and of fisheries and products of first-stage processing directly related to these products. References to the common agricultural policy or to agriculture, and the use of the term “agricultural”, shall be understood as also referring to fisheries, having regard to the specific characteristics of this sector.
2. Save as otherwise provided in Articles 33 to 38 [ToL, new numbering Articles 39 to 44 TFEU], the rules laid down for the establishment and functioning of the internal market shall apply to agricultural products.
3. The products subject to the provisions of Articles 33 to 38 [ToL, new numbering 39 to 44 TFEU] are listed in Annex I.
4. The operation and development of the internal market for agricultural products must be accompanied by the establishment of a common agricultural policy.
***
For easy comparison with the prior phases of the treaty reform process, here are the relevant provisions of the draft Treaty establishing a Constitution for Europe, as proposed by the European Convention. Section 4 Agriculture and fisheries would have been placed away from the Titles on free movement, in Chapter III Policies in other specific areas (after Chapter I Internal market and Chapter II Economic and monetary policy) (OJ 18.7.2003 C 169/51):
SECTION 4
Agriculture and fisheries
Article III-121 Draft Constitution
The Union shall define and implement a common agriculture and fisheries policy.
‘Agricultural products’ means the products of the soil, of stockfarming and of fisheries and products of first-stage processing directly related to these products. References to the common agricultural policy or to agriculture, and the use of the term ‘agricultural’, shall be understood as also referring to fisheries, having regard to the specific characteristics of this sector.
Article III-122 Draft Constitution
1. The internal market shall extend to agriculture and trade in agricultural products.
2. Save as otherwise provided in Articles III-123 to III-128, the rules laid down for the establishment of the internal market shall apply to agricultural products.
3. The products listed in Annex I (*) shall be subject to Articles III-123 to III-128.
4. The operation and development of the internal market for agricultural products must be accompanied by the establishment of a common agricultural policy.
[* The asterisk indicated that Annex I had to be drawn up.]
***
The IGC 2004 took over the draft text in the Treaty establishing a Constitution for Europe (OJ 16.12.2004 C 310/99-100):
SECTION 4
AGRICULTURE AND FISHERIES
Article III-225 Constitution
The Union shall define and implement a common agriculture and fisheries policy.
‘Agricultural products’ means the products of the soil, of stockfarming and of fisheries and products of first-stage processing directly related to these products. References to the common agricultural policy or to agriculture, and the use of the term ‘agricultural’, shall be understood as also referring to fisheries, having regard to the specific characteristics of this sector.
Article III-226 Constitution
1. The internal market shall extend to agriculture and trade in agricultural products.
2. Save as otherwise provided in articles III-227 to III-232, the rules laid down for the establishment and functioning of the internal market shall apply to agricultural products.
3. The products listed in Annex I shall be subject to Articles III-227 to III-232.
4. The operation and development of the internal market for agricultural products must be accompanied by a common agricultural policy.
***
The Constitutional Treaty took over the wording of the draft Constitution with minimal adjustments. The referrals to Articles were adjusted technically, and in the second paragraph ‘and functioning’ was added to the internal market, while ‘the establishment of’ a common agricultural policy was deleted in paragraph 4 of Article III-226.
The Lisbon Treaty merges the Articles of the Constitution and shifts the sentences without altering the contents.
***
Here are the contents of Annex I – the List referred to in Article 32 TEC as presented in the latest consolidated version (OJ 29.12.2006 C 321 E/183-185, where it is presented as an easier to read table). The numbers of chapters and positions refer to the Brussels nomenclature and the following text describes the products:
ANNEX I
LIST
referred to in Article 32 of the Treaty
Chapter 1 Live animals
Chapter 2 Meat and edible meat offal
Chapter 3 Fish, crustaceans and molluscs
Chapter 4 Dairy produce; birds' eggs; natural honey
Chapter 5
05.04 Guts, bladders and stomachs of animals (other than fish), whole and pieces thereof
05.15 Animal products not elsewhere specified or included; dead animals of Chapter 1 or Chapter 3, unfit for human consumption
Chapter 6 Live trees and other plants; bulbs, roots and the like; cut flowers and ornamental foliage
Chapter 7 Edible vegetables and certain roots and tubers
Chapter 8 Edible fruit and nuts; peel of melons or citrus fruit
Chapter 9 Coffee, tea and spices, excluding maté (heading No 0903)
Chapter 10 Cereals
Chapter 11 Products of the milling industry; malt and starches; gluten; inulin
Chapter 12 Oil seeds and oleaginous fruit; miscellaneous grains, seeds and fruit; industrial and medical plants; straw and fodder
Chapter 13
ex 13.03 Pectin
Chapter 15
15.01 Lard and other rendered pig fat; rendered poultry fat
15.02 Unrendered fats of bovine cattle, sheep or goats; tallow (including ‘premier jus’) produced from those fats
15.03 Lard stearin, oleostearin and tallow stearin; lard oil, oleo-oil and tallow oil, not emulsified or mixed or prepared in any way
15.04 Fats and oil, of fish and marine mammals, whether or not refined
15.07 Fixed vegetable oils, fluid or solid, crude, refined or purified
15.12 Animal or vegetable fats and oils, hydrogenated, whether or not refined, but not further prepared
15.13 Margarine, imitation lard and other prepared edible fats
15.17 Residues resulting from the treatment of fatty substances or animal or vegetable waxes
Chapter 16 Preparations of meat, of fish, of crustaceans or molluscs
Chapter 17
17.01 Beet sugar and cane sugar, solid
17.02 Other sugars; sugar syrups; artificial honey (whether or not mixed with natural honey); caramel
17.03 Molasses, whether or not decolourised
17.05 Flavoured or coloured sugars, syrups and molasses, but not including fruit juices containing added sugar in any proportion
Chapter 18
18.01 Cocoa beans, whole or broken, raw or roasted
18.02 Cocoa shells, husks, skins and waste
Chapter 20 Preparations of vegetables, fruit or other parts of plants
Chapter 22
22.04 Grape must, in fermentation or with fermentation arrested otherwise than by the addition of alcohol
22.05 Wine of fresh grapes; grape must with fermentation arrested by the addition of alcohol
22.07 Other fermented beverages (for example, cider, perry and mead)
ex 22.08
ex 22.09
Ethyl alcohol or neutral spirits, whether or not denatured, of any strength, obtained from agricultural products listed in Annex I to the Treaty, excluding liqueurs and other spirituous beverages and compound alcoholic preparations (known as ‘concentrated extracts’) for the manufacture of beverages
ex 22.10 Vinegar and substitutes for vinegar
Chapter 23 Residues and waste from the food industries; prepared animal fodder
Chapter 24
24.01 Unmanufactured tobacco, tobacco refuse
Chapter 45
45.01 Natural cork, unworked, crushed, granulated or ground; waste cork
Chapter 54
54.01 Flax, raw or processed but not spun; flax tow and waste (including pulled or garnetted rags)
Chapter 57
57.01 True hemp (Cannabis sativa), raw or processed but not spun; tow and waste of
true hemp (including pulled or garnetted rags or ropes)
***
Adding fisheries to the Title heading and the text of the Article takes account of existing practice.
Aware of the highly regulated and protectionist nature of the common agriculture and fisheries policy as well as the massive support mechanisms, the reader may be astonished to find out that in principle the rules for the establishment and functioning of the internal market apply to agricultural products.
The concept of first-stage processing is important, as is Annex I listing the products.
Ralf Grahn
Naturally, each farmer and fisherman is a stakeholder, but so is every consumer and taxpayer in the European Union. In short, every citizen of the EU should know the legal and political basics of the CAP.
Here we begin by looking at the fundamental provisions as they stand when the Lisbon Treaty enters into force.
***
Were the European leaders worried enough by the flagging spirits of the so called Eurosceptic anti-EU crowd to devise this supporting action to keep them going and to stimulate recruitment?
Not only was the ‘constitutional concept’ abandoned, but all pretence at plain English (as well as Bulgarian, Czech, Danish, Dutch, Estonian, Finnish, French, German, Greek, Hungarian, Irish, Italian, Latvian, Lithuanian, Maltese, Polish, Portuguese, Romanian, Slovak, Slovenian, Spanish and Swedish).
Anyway, arriving at a new Title we find the intergovernmental conference (IGC 2007) true to its form. Although very little actual change takes place, the master communicators of the IGC 2007 fully used the opportunity to make the reading experience of the amending Treaty of Lisbon (ToL) as unrewarding as possible, requiring the concurrent perusal of the existing treaties to make any sense.
Here is what the Lisbon Treaty has to say at the beginning of the new Title of the Treaty establishing the European Community (TEC), becoming the Treaty on the Functioning of the European Union (TFEU) (OJ 17.12.2007 C 306/53):
AGRICULTURE AND FISHERIES
46) In the heading of Title II, the words ‘AND FISHERIES’ shall be added.
47) Article 32 shall be amended as follows:
(a) in paragraph 1, the following new first subparagraph shall be inserted:
‘1. The Union shall define and implement a common agriculture and fisheries policy.’, the current text of paragraph 1 shall become the second subparagraph.
In the second subparagraph, the word ‘, fisheries’ shall be inserted after ‘agriculture’ in the first sentence and the following sentence shall be added as the last sentence of the subparagraph: ‘References to the common agricultural policy or to agriculture, and the use of the term “agricultural”, shall be understood as also referring to fisheries, having regard to the specific characteristics of this sector.’
(b) in paragraph 2, the words ‘and functioning’ shall be inserted after the word ‘establishment’.
(c) in paragraph 3, the words ‘to this Treaty’ shall be deleted.
***
We have been sent off to fetch the current Article 32 TEC (found in the latest consolidated version of the treaties, OJ 29.12.2006 C 321/53-54):
TITLE II
AGRICULTURE
Article 32 TEC
1. The common market shall extend to agriculture and trade in agricultural products. ‘Agricultural products’ means the products of the soil, of stockfarming and of fisheries and products of first-stage processing directly related to these products.
2. Save as otherwise provided in Articles 33 to 38, the rules laid down for the establishment of the common market shall apply to agricultural products.
3. The products subject to the provisions of Articles 33 to 38 are listed in Annex I to this Treaty.
4. The operation and development of the common market for agricultural products must be accompanied by the establishment of a common agricultural policy.
***
The materials are now at the plant. Assembly can start. This is what appears at the end of the assembly line after joining the numbering of the Tables of equivalences with the express amendments and horizontal amendment 2(g), thrice replacing the ‘common market’ by ‘internal market’:
PART THREE – POLICIES AND INTERNAL ACTIONS OF THE UNION
Title II (renumbered Title III) Agriculture and fisheries
Article 32 TFEU (ToL), renumbered Article 38 TFEU
1. The Union shall define and implement a common agriculture and fisheries policy.
The internal market shall extend to agriculture, fisheries and trade in agricultural products. ‘Agricultural products’ means the products of the soil, of stockfarming and of fisheries and products of first-stage processing directly related to these products. References to the common agricultural policy or to agriculture, and the use of the term “agricultural”, shall be understood as also referring to fisheries, having regard to the specific characteristics of this sector.
2. Save as otherwise provided in Articles 33 to 38 [ToL, new numbering Articles 39 to 44 TFEU], the rules laid down for the establishment and functioning of the internal market shall apply to agricultural products.
3. The products subject to the provisions of Articles 33 to 38 [ToL, new numbering 39 to 44 TFEU] are listed in Annex I.
4. The operation and development of the internal market for agricultural products must be accompanied by the establishment of a common agricultural policy.
***
For easy comparison with the prior phases of the treaty reform process, here are the relevant provisions of the draft Treaty establishing a Constitution for Europe, as proposed by the European Convention. Section 4 Agriculture and fisheries would have been placed away from the Titles on free movement, in Chapter III Policies in other specific areas (after Chapter I Internal market and Chapter II Economic and monetary policy) (OJ 18.7.2003 C 169/51):
SECTION 4
Agriculture and fisheries
Article III-121 Draft Constitution
The Union shall define and implement a common agriculture and fisheries policy.
‘Agricultural products’ means the products of the soil, of stockfarming and of fisheries and products of first-stage processing directly related to these products. References to the common agricultural policy or to agriculture, and the use of the term ‘agricultural’, shall be understood as also referring to fisheries, having regard to the specific characteristics of this sector.
Article III-122 Draft Constitution
1. The internal market shall extend to agriculture and trade in agricultural products.
2. Save as otherwise provided in Articles III-123 to III-128, the rules laid down for the establishment of the internal market shall apply to agricultural products.
3. The products listed in Annex I (*) shall be subject to Articles III-123 to III-128.
4. The operation and development of the internal market for agricultural products must be accompanied by the establishment of a common agricultural policy.
[* The asterisk indicated that Annex I had to be drawn up.]
***
The IGC 2004 took over the draft text in the Treaty establishing a Constitution for Europe (OJ 16.12.2004 C 310/99-100):
SECTION 4
AGRICULTURE AND FISHERIES
Article III-225 Constitution
The Union shall define and implement a common agriculture and fisheries policy.
‘Agricultural products’ means the products of the soil, of stockfarming and of fisheries and products of first-stage processing directly related to these products. References to the common agricultural policy or to agriculture, and the use of the term ‘agricultural’, shall be understood as also referring to fisheries, having regard to the specific characteristics of this sector.
Article III-226 Constitution
1. The internal market shall extend to agriculture and trade in agricultural products.
2. Save as otherwise provided in articles III-227 to III-232, the rules laid down for the establishment and functioning of the internal market shall apply to agricultural products.
3. The products listed in Annex I shall be subject to Articles III-227 to III-232.
4. The operation and development of the internal market for agricultural products must be accompanied by a common agricultural policy.
***
The Constitutional Treaty took over the wording of the draft Constitution with minimal adjustments. The referrals to Articles were adjusted technically, and in the second paragraph ‘and functioning’ was added to the internal market, while ‘the establishment of’ a common agricultural policy was deleted in paragraph 4 of Article III-226.
The Lisbon Treaty merges the Articles of the Constitution and shifts the sentences without altering the contents.
***
Here are the contents of Annex I – the List referred to in Article 32 TEC as presented in the latest consolidated version (OJ 29.12.2006 C 321 E/183-185, where it is presented as an easier to read table). The numbers of chapters and positions refer to the Brussels nomenclature and the following text describes the products:
ANNEX I
LIST
referred to in Article 32 of the Treaty
Chapter 1 Live animals
Chapter 2 Meat and edible meat offal
Chapter 3 Fish, crustaceans and molluscs
Chapter 4 Dairy produce; birds' eggs; natural honey
Chapter 5
05.04 Guts, bladders and stomachs of animals (other than fish), whole and pieces thereof
05.15 Animal products not elsewhere specified or included; dead animals of Chapter 1 or Chapter 3, unfit for human consumption
Chapter 6 Live trees and other plants; bulbs, roots and the like; cut flowers and ornamental foliage
Chapter 7 Edible vegetables and certain roots and tubers
Chapter 8 Edible fruit and nuts; peel of melons or citrus fruit
Chapter 9 Coffee, tea and spices, excluding maté (heading No 0903)
Chapter 10 Cereals
Chapter 11 Products of the milling industry; malt and starches; gluten; inulin
Chapter 12 Oil seeds and oleaginous fruit; miscellaneous grains, seeds and fruit; industrial and medical plants; straw and fodder
Chapter 13
ex 13.03 Pectin
Chapter 15
15.01 Lard and other rendered pig fat; rendered poultry fat
15.02 Unrendered fats of bovine cattle, sheep or goats; tallow (including ‘premier jus’) produced from those fats
15.03 Lard stearin, oleostearin and tallow stearin; lard oil, oleo-oil and tallow oil, not emulsified or mixed or prepared in any way
15.04 Fats and oil, of fish and marine mammals, whether or not refined
15.07 Fixed vegetable oils, fluid or solid, crude, refined or purified
15.12 Animal or vegetable fats and oils, hydrogenated, whether or not refined, but not further prepared
15.13 Margarine, imitation lard and other prepared edible fats
15.17 Residues resulting from the treatment of fatty substances or animal or vegetable waxes
Chapter 16 Preparations of meat, of fish, of crustaceans or molluscs
Chapter 17
17.01 Beet sugar and cane sugar, solid
17.02 Other sugars; sugar syrups; artificial honey (whether or not mixed with natural honey); caramel
17.03 Molasses, whether or not decolourised
17.05 Flavoured or coloured sugars, syrups and molasses, but not including fruit juices containing added sugar in any proportion
Chapter 18
18.01 Cocoa beans, whole or broken, raw or roasted
18.02 Cocoa shells, husks, skins and waste
Chapter 20 Preparations of vegetables, fruit or other parts of plants
Chapter 22
22.04 Grape must, in fermentation or with fermentation arrested otherwise than by the addition of alcohol
22.05 Wine of fresh grapes; grape must with fermentation arrested by the addition of alcohol
22.07 Other fermented beverages (for example, cider, perry and mead)
ex 22.08
ex 22.09
Ethyl alcohol or neutral spirits, whether or not denatured, of any strength, obtained from agricultural products listed in Annex I to the Treaty, excluding liqueurs and other spirituous beverages and compound alcoholic preparations (known as ‘concentrated extracts’) for the manufacture of beverages
ex 22.10 Vinegar and substitutes for vinegar
Chapter 23 Residues and waste from the food industries; prepared animal fodder
Chapter 24
24.01 Unmanufactured tobacco, tobacco refuse
Chapter 45
45.01 Natural cork, unworked, crushed, granulated or ground; waste cork
Chapter 54
54.01 Flax, raw or processed but not spun; flax tow and waste (including pulled or garnetted rags)
Chapter 57
57.01 True hemp (Cannabis sativa), raw or processed but not spun; tow and waste of
true hemp (including pulled or garnetted rags or ropes)
***
Adding fisheries to the Title heading and the text of the Article takes account of existing practice.
Aware of the highly regulated and protectionist nature of the common agriculture and fisheries policy as well as the massive support mechanisms, the reader may be astonished to find out that in principle the rules for the establishment and functioning of the internal market apply to agricultural products.
The concept of first-stage processing is important, as is Annex I listing the products.
Ralf Grahn
Sunday, 23 March 2008
EU TFEU: Commercial state monopolies
’Politics makes strange bedfellows’, but not more than the free movement of goods and state monopolies of a commercial character within the European Community (European Union).
***
Article 31 of the Treaty establishing the European Community (TEC) first becomes Article 31 of the Treaty on the Functioning of the European Union (TFEU) according to the original Treaty of Lisbon (ToL) numbering. When the amending treaty is consolidated, the provision is renumbered Article 37.
The wording for the unaltered provision is found in the latest consolidated version of the current treaties, Official Journal, OJ 29.12.2006 C 321 E/53, to which we add the Lisbon Treaty context (Tables of equivalence, OJ 17.12.2007 C 306/207):
Part Three Policies and internal actions of the Union
Title Ia (renumbered Title II) Free movement of goods
Chapter 2 (renumbered Chapter 3) Prohibition of quantitative restrictions between Member States
Article 31 TFEU (ToL), renumbered Article 37 TFEU
1. Member States shall adjust any State monopolies of a commercial character so as to ensure that no discrimination regarding the conditions under which goods are procured and marketed exists between nationals of Member States.
The provisions of this Article shall apply to any body through which a Member State, in law or in fact, either directly or indirectly supervises, determines or appreciably influences imports or exports between Member States. These provisions shall likewise apply to monopolies delegated by the State to others.
2. Member States shall refrain from introducing any new measure which is contrary to the principles laid down in paragraph 1 or which restricts the scope of the articles dealing with the prohibition of customs duties and quantitative restrictions between Member States.
3. If a State monopoly of a commercial character has rules which are designed to make it easier to dispose of agricultural products or obtain for them the best return, steps should be taken in applying the rules contained in this Article to ensure equivalent safeguards for the employment and standard of living of the producers concerned.
***
Errata
I apologise for my mistake concerning the Title given as ‘Title I The internal market’ in the posts on Articles 27a to 30 according to the Lisbon Treaty numbering (renumbered Articles 33 to 36). The correct version is ‘Title Ia (renumbered Title II) Free movement of goods’.
I have served myself a generous helping of Easter humble pie.
***
The European Convention took over the contents of the provision, with nearly identical wording in Article III-44 of the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/34).
The same applies to Article III-155 of the Treaty establishing a Constitution for Europe.
***
State monopolies of a commercial character and the principle of free movement of goods are rather awkward companions, but the monopolies are not prohibited by Article 31 TFEU (ToL; renumbered Article 37 TFEU), only to be adjusted to ensure the abolition of discrimination.
The provision applies to goods and between member states (internal market), not regarding third countries.
Existing commercial monopolies have to be adjusted, and the introduction of new measures is forbidden (standstill clause).
***
A few examples:
National monopolies on the sale of alcoholic beverages in Sweden and Finland have been adjusted, but the sale of medicinal preparations in Sweden did not ensure non-discrimination.
In a preliminary ruling the Court of Justice found (case C-438/02) that the way in which Apoteket is organised and operates, and more particularly its system of selecting medicinal preparations, is liable to place trade in medicinal preparations from other Member States at a disadvantage as compared with trade in Swedish medicinal preparations. Thus, that State monopoly is not arranged in such a way as to exclude any discrimination against medicinal preparations from other Member States. It thus infringes Article 31(1) EC.
Ralf Grahn
***
Article 31 of the Treaty establishing the European Community (TEC) first becomes Article 31 of the Treaty on the Functioning of the European Union (TFEU) according to the original Treaty of Lisbon (ToL) numbering. When the amending treaty is consolidated, the provision is renumbered Article 37.
The wording for the unaltered provision is found in the latest consolidated version of the current treaties, Official Journal, OJ 29.12.2006 C 321 E/53, to which we add the Lisbon Treaty context (Tables of equivalence, OJ 17.12.2007 C 306/207):
Part Three Policies and internal actions of the Union
Title Ia (renumbered Title II) Free movement of goods
Chapter 2 (renumbered Chapter 3) Prohibition of quantitative restrictions between Member States
Article 31 TFEU (ToL), renumbered Article 37 TFEU
1. Member States shall adjust any State monopolies of a commercial character so as to ensure that no discrimination regarding the conditions under which goods are procured and marketed exists between nationals of Member States.
The provisions of this Article shall apply to any body through which a Member State, in law or in fact, either directly or indirectly supervises, determines or appreciably influences imports or exports between Member States. These provisions shall likewise apply to monopolies delegated by the State to others.
2. Member States shall refrain from introducing any new measure which is contrary to the principles laid down in paragraph 1 or which restricts the scope of the articles dealing with the prohibition of customs duties and quantitative restrictions between Member States.
3. If a State monopoly of a commercial character has rules which are designed to make it easier to dispose of agricultural products or obtain for them the best return, steps should be taken in applying the rules contained in this Article to ensure equivalent safeguards for the employment and standard of living of the producers concerned.
***
Errata
I apologise for my mistake concerning the Title given as ‘Title I The internal market’ in the posts on Articles 27a to 30 according to the Lisbon Treaty numbering (renumbered Articles 33 to 36). The correct version is ‘Title Ia (renumbered Title II) Free movement of goods’.
I have served myself a generous helping of Easter humble pie.
***
The European Convention took over the contents of the provision, with nearly identical wording in Article III-44 of the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/34).
The same applies to Article III-155 of the Treaty establishing a Constitution for Europe.
***
State monopolies of a commercial character and the principle of free movement of goods are rather awkward companions, but the monopolies are not prohibited by Article 31 TFEU (ToL; renumbered Article 37 TFEU), only to be adjusted to ensure the abolition of discrimination.
The provision applies to goods and between member states (internal market), not regarding third countries.
Existing commercial monopolies have to be adjusted, and the introduction of new measures is forbidden (standstill clause).
***
A few examples:
National monopolies on the sale of alcoholic beverages in Sweden and Finland have been adjusted, but the sale of medicinal preparations in Sweden did not ensure non-discrimination.
In a preliminary ruling the Court of Justice found (case C-438/02) that the way in which Apoteket is organised and operates, and more particularly its system of selecting medicinal preparations, is liable to place trade in medicinal preparations from other Member States at a disadvantage as compared with trade in Swedish medicinal preparations. Thus, that State monopoly is not arranged in such a way as to exclude any discrimination against medicinal preparations from other Member States. It thus infringes Article 31(1) EC.
Ralf Grahn
Saturday, 22 March 2008
EU TFEU: Legitimate restrictions on imports and exports
The free movement of goods is a fundamental principle of the internal market of the European Community (European Union). There are, however, other societal values, which call for attention, and they can vary between the member states.
A balance has to be sought between these different values, leaving scope for national sensitivities, but preventing discriminatory use.
***
Since the intergovernmental conference (IGC 2007) had nothing in particular to say about the contents of Article 30 of the Treaty establishing the European Community (TEC), we start by looking up the provision in the latest consolidation of the treaties OJ 29.12.2006 C 321 E/53:
Article 30 TEC
The provisions of Articles 28 and 29 shall not preclude prohibitions or restrictions on imports, exports or goods in transit justified on grounds of public morality, public policy or public security; the protection of health and life of humans, animals or plants; the protection of national treasures possessing artistic, historic or archaeological value; or the protection of industrial and commercial property. Such prohibitions or restrictions shall not, however, constitute a means of arbitrary discrimination or a disguised restriction on trade between Member States.
***
In the Treaty of Lisbon (ToL) Article 30 TEC becomes Article 30 of the Treaty on the Functioning of the European Union (TFEU). In later consolidated versions the provision and the two Articles referred to are renumbered according to the Tables of equivalences referred to in the IGC 2007 Article 5 of the Treaty of Lisbon (OJ 17.12.2007 C 306/207). We indicate the Article numbers and the location of the provision:
Part Three Policies and internal actions of the Union
Title I The internal market
Chapter 2 (renumbered Chapter 3) Prohibition of quantitative restrictions between Member States
Article 30 TFEU (ToL), new numbering Article 36 TFEU
The provisions of Articles 28 [TFEU (ToL), new number Article 34 TFEU] and 29 [TFEU (ToL), renumbered Article 35 TFEU] shall not preclude prohibitions or restrictions on imports, exports or goods in transit justified on grounds of public morality, public policy or public security; the protection of health and life of humans, animals or plants; the protection of national treasures possessing artistic, historic or archaeological value; or the protection of industrial and commercial property. Such prohibitions or restrictions shall not, however, constitute a means of arbitrary discrimination or a disguised restriction on trade between Member States.
***
I routinely check my rendering against Klemens H. Fischer: Der Vertrag von Lissabon, the IIEA: Treaty on the Functioning of the European Union (Consolidated version) and the Statewatch Analysis by Steve Peers. If I find an anomaly, I check again.
***
Because the draft Treaty establishing a Constitution for Europe had only one Article prohibiting quantitative restrictions on both imports and exports, the referral was different, but otherwise the European Convention took over the text of Article 30 TEC word for word in its Article III-43 (OJ 18.7.2003 C 169/34).
The same goes for Article III-154 of the Treaty establishing a Constitution for Europe (OJ 16.12.2004 C 310/66).
***
The grounds for exceptions (derogations) from the free movement of goods may be easier to read if presented in the form of a list:
· Public morality
· Public policy
· Public security
· Protection of health
· Protection of national treasures
· Protection of industrial and commercial property
These are only possible grounds for prohibitions or restrictions on the free movement of goods by the member states.
In order to override the commercial interest of free flow of goods, the exceptions have to be justified on objective grounds. They have to be necessary to achieve the policy aim in question, and they have to be proportional, namely no more disruptive than needed to attain their objective.
The Court of Justice (‘of the European Union’, as it is to be known) is the final arbiter of when restrictive measures are legitimate and when they constitute a means of arbitrary discrimination or a disguised restriction on trade between Member States. Derogations or exceptions are interpreted narrowly.
One example of a national measure on public morality grounds that would fail is a prohibition of imports of pornographic products, if domestic goods of the same kind were allowed.
Ralf Grahn
A balance has to be sought between these different values, leaving scope for national sensitivities, but preventing discriminatory use.
***
Since the intergovernmental conference (IGC 2007) had nothing in particular to say about the contents of Article 30 of the Treaty establishing the European Community (TEC), we start by looking up the provision in the latest consolidation of the treaties OJ 29.12.2006 C 321 E/53:
Article 30 TEC
The provisions of Articles 28 and 29 shall not preclude prohibitions or restrictions on imports, exports or goods in transit justified on grounds of public morality, public policy or public security; the protection of health and life of humans, animals or plants; the protection of national treasures possessing artistic, historic or archaeological value; or the protection of industrial and commercial property. Such prohibitions or restrictions shall not, however, constitute a means of arbitrary discrimination or a disguised restriction on trade between Member States.
***
In the Treaty of Lisbon (ToL) Article 30 TEC becomes Article 30 of the Treaty on the Functioning of the European Union (TFEU). In later consolidated versions the provision and the two Articles referred to are renumbered according to the Tables of equivalences referred to in the IGC 2007 Article 5 of the Treaty of Lisbon (OJ 17.12.2007 C 306/207). We indicate the Article numbers and the location of the provision:
Part Three Policies and internal actions of the Union
Title I The internal market
Chapter 2 (renumbered Chapter 3) Prohibition of quantitative restrictions between Member States
Article 30 TFEU (ToL), new numbering Article 36 TFEU
The provisions of Articles 28 [TFEU (ToL), new number Article 34 TFEU] and 29 [TFEU (ToL), renumbered Article 35 TFEU] shall not preclude prohibitions or restrictions on imports, exports or goods in transit justified on grounds of public morality, public policy or public security; the protection of health and life of humans, animals or plants; the protection of national treasures possessing artistic, historic or archaeological value; or the protection of industrial and commercial property. Such prohibitions or restrictions shall not, however, constitute a means of arbitrary discrimination or a disguised restriction on trade between Member States.
***
I routinely check my rendering against Klemens H. Fischer: Der Vertrag von Lissabon, the IIEA: Treaty on the Functioning of the European Union (Consolidated version) and the Statewatch Analysis by Steve Peers. If I find an anomaly, I check again.
***
Because the draft Treaty establishing a Constitution for Europe had only one Article prohibiting quantitative restrictions on both imports and exports, the referral was different, but otherwise the European Convention took over the text of Article 30 TEC word for word in its Article III-43 (OJ 18.7.2003 C 169/34).
The same goes for Article III-154 of the Treaty establishing a Constitution for Europe (OJ 16.12.2004 C 310/66).
***
The grounds for exceptions (derogations) from the free movement of goods may be easier to read if presented in the form of a list:
· Public morality
· Public policy
· Public security
· Protection of health
· Protection of national treasures
· Protection of industrial and commercial property
These are only possible grounds for prohibitions or restrictions on the free movement of goods by the member states.
In order to override the commercial interest of free flow of goods, the exceptions have to be justified on objective grounds. They have to be necessary to achieve the policy aim in question, and they have to be proportional, namely no more disruptive than needed to attain their objective.
The Court of Justice (‘of the European Union’, as it is to be known) is the final arbiter of when restrictive measures are legitimate and when they constitute a means of arbitrary discrimination or a disguised restriction on trade between Member States. Derogations or exceptions are interpreted narrowly.
One example of a national measure on public morality grounds that would fail is a prohibition of imports of pornographic products, if domestic goods of the same kind were allowed.
Ralf Grahn
EU: Consolidated Lisbon Treaty
Where do I find a consolidated, readable version of the EU’s Treaty of Lisbon?
How is the accuracy of the Article by Article Lisbon Treaty consolidation appearing on this blog checked?
I answer the questions in reverse order:
After arriving at what I think would be the consolidated wording of an Article, I usually compare it with four existing consolidations to see if I got it right (or if they did). They are the following versions: the IIEA, the FCO, Statewatch and Klemens H. Fischer.
The practical and sane quite naturally access these consolidations or other (language) versions directly. My latest compilation of references to existing consolidated versions of the Lisbon Treaty in different languages is found in the post ‘EU UE: Lisbon Lissabon Lisboa Lisbonne Lisbona Lisboa’ of 5 March 2008:
http://grahnlaw.blogspot.com/2008/03/eu-ue-lisbon-lissabon-lisboa-lisbonne.html
I hope that the Council is aware of the fact that there is a continuing daily trickle of visitors to this blog, who are looking for a consolidated version of the Treaty of Lisbon, but the search engines seem to steer them towards earlier versions of the list.
If the Council cared for transparency and sound priorities, it would surely long ago have published consolidated versions of the Lisbon Treaty in every official language of the European Union, because it is arguably the most important document to emanate from the EU since 2004.
Because the Council has referred to practices concerning earlier treaty reforms, it is meet to point out that both the web and conceptions about public communications have evolved greatly since 2001, when the Treaty of Nice was signed, and that the draft Constitution was published immediately and that the Constitution was published about a month and a half after signing, both in the Official Journal in all the treaty languages.
Why revert to worst practices?
Ralf Grahn
How is the accuracy of the Article by Article Lisbon Treaty consolidation appearing on this blog checked?
I answer the questions in reverse order:
After arriving at what I think would be the consolidated wording of an Article, I usually compare it with four existing consolidations to see if I got it right (or if they did). They are the following versions: the IIEA, the FCO, Statewatch and Klemens H. Fischer.
The practical and sane quite naturally access these consolidations or other (language) versions directly. My latest compilation of references to existing consolidated versions of the Lisbon Treaty in different languages is found in the post ‘EU UE: Lisbon Lissabon Lisboa Lisbonne Lisbona Lisboa’ of 5 March 2008:
http://grahnlaw.blogspot.com/2008/03/eu-ue-lisbon-lissabon-lisboa-lisbonne.html
I hope that the Council is aware of the fact that there is a continuing daily trickle of visitors to this blog, who are looking for a consolidated version of the Treaty of Lisbon, but the search engines seem to steer them towards earlier versions of the list.
If the Council cared for transparency and sound priorities, it would surely long ago have published consolidated versions of the Lisbon Treaty in every official language of the European Union, because it is arguably the most important document to emanate from the EU since 2004.
Because the Council has referred to practices concerning earlier treaty reforms, it is meet to point out that both the web and conceptions about public communications have evolved greatly since 2001, when the Treaty of Nice was signed, and that the draft Constitution was published immediately and that the Constitution was published about a month and a half after signing, both in the Official Journal in all the treaty languages.
Why revert to worst practices?
Ralf Grahn
Friday, 21 March 2008
Two from the same country?
The WhoDoICall blog discusses an entry by Richard Corbett on the possible choice of two Rasmussens from Denmark for EU top posts:
http://www.whodoicall.eu/blog/
It is difficult to imagine that two out of three top jobs would land with citizens of the same member state, if the European Council does not merge the two presidencies, as proposed by the ‘Who do I call?’ initiative.
This is what Declaration number 6 on Article 9 B(5) and (6), Article 9 D(6) and (7) and
Article 9 E of the Treaty on European Union says:
In choosing the persons called upon to hold the offices of President of the European Council, President of the Commission and High Representative of the Union for Foreign Affairs and Security Policy, due account is to be taken of the need to respect the geographical and demographic diversity of the Union and its Member States.
***
To date, the European leaders have spoken publicly only of geographical and demographic diversity, leaving out other factors such as gender and democratic legitimacy.
In spite of the popularity of name dropping, I would want to see more discussion on the fundamentals, as proposed again in my post ‘Heavyweight president for European Council?’ two days ago.
Let us hope that the debate turns a bit more serious, and that European leaders show that their thinking can evolve.
Ralf Grahn
http://www.whodoicall.eu/blog/
It is difficult to imagine that two out of three top jobs would land with citizens of the same member state, if the European Council does not merge the two presidencies, as proposed by the ‘Who do I call?’ initiative.
This is what Declaration number 6 on Article 9 B(5) and (6), Article 9 D(6) and (7) and
Article 9 E of the Treaty on European Union says:
In choosing the persons called upon to hold the offices of President of the European Council, President of the Commission and High Representative of the Union for Foreign Affairs and Security Policy, due account is to be taken of the need to respect the geographical and demographic diversity of the Union and its Member States.
***
To date, the European leaders have spoken publicly only of geographical and demographic diversity, leaving out other factors such as gender and democratic legitimacy.
In spite of the popularity of name dropping, I would want to see more discussion on the fundamentals, as proposed again in my post ‘Heavyweight president for European Council?’ two days ago.
Let us hope that the debate turns a bit more serious, and that European leaders show that their thinking can evolve.
Ralf Grahn
EU TFEU: Quantitative export restrictions
The provisions of the European Community (in the future the European Union) banning quantitative restrictions on imports and exports in the single market, and all measures having equivalent effect, look like mirror images (except for two commas).
Still, there is a difference, because barriers against imports inevitably raise the question of protectionist intentions, whereas member states generally look favourably on exports.
***
In the Treaty of Lisbon (ToL) the intergovernmental conference (IGC 2007) observes silence between point 45 on Customs cooperation and point 46 on Agriculture and fisheries (OJ 17.12.2007 C 306/52-53). The annexed Tables of equivalences however give us an indication that there is a whole chapter to look at, brief but of fundamental importance to the internal market (OJ 17.12.2007 C 306/207).
We notice that Article 29 of the Treaty establishing the European Community (TEC) first becomes Article 29 of the Treaty on the Functioning of the European Union (TFEU) in the Lisbon Treaty version (ToL), later to be renumbered Article 35 TFEU in the coming consolidated versions.
We set the provision into its future context (from the Tables of equivalences) and present its contents (taken from the latest consolidated version of the current treaties, OJ 29.12.2006 C 321 E/53):
Part Three Policies and internal actions of the Union
Title I The internal market
Chapter 2 (renumbered Chapter 3) Prohibition of quantitative restrictions between Member States
Article 29 TFEU (ToL), renumbered Article 35 TFEU
Quantitative restrictions on exports, and all measures having equivalent effect, shall be prohibited between Member States.
***
The European Convention proposed the following Article III-42 of the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/34):
Subsection 3
Prohibition of quantitative restrictions
Article III-42 Draft Constitution
Quantitative restrictions on imports and exports and all measures having equivalent effect shall be prohibited between Member States.
***
The IGC 2004 took over the draft text ‘verbatim’ as you see in Article III-153 of the Treaty establishing a Constitution for Europe (OJ 16.12.2004 C 310/65):
Subsection 3
Prohibition of quantitative restrictions
Article III-153 Constitution
Quantitative restrictions on imports and exports and all measures having equivalent effect shall be prohibited between Member States.
***
If we take a look at the following Articles of the current TEC and the proposed TFEU, we are able to see that they have separate provisions concerning quantitative restrictions on imports and on exports, whereas the draft Constitution and the Constitution shortened the text by merging the two.
***
Restrictions on import as well as on exports can hinder the free flow of goods in the internal market. Article 29 TFEU (ToL; 35 TFEU) concerns trade between member states, and it is clear enough to be directly applicable, potentially striking down national provisions or practices with contrary effects. Restrictions in relation to third countries are dealt with under external trade provisions.
Examples of prohibited export restrictions include express export quotas, export bans and systematic controls on export goods.
Whereas restrictions on imports raise the presumption of protectionist motives, domestic practices concerning potential exports are less harshly judged. General national measures putting national potential exporters at a disadvantage (reverse discrimination) are tolerated to a certain extent. Examples include less favourable working hours in bakeries and restrictive opening hours for shops serving a cross-border clientele.
Grounds for justifiable domestic measures are found in the following Article 30 TEC and TFEU (ToL), renumbered Article 36 TFEU.
Article 296(1)(b) TEC and TFEU (ToL), renumbered Article 346 TFEU, contains a specific authorisation, on security grounds, of restrictions pertaining to the trade in arms, munitions and war material (but not to products not intended for specifically military purposes).
Ralf Grahn
Still, there is a difference, because barriers against imports inevitably raise the question of protectionist intentions, whereas member states generally look favourably on exports.
***
In the Treaty of Lisbon (ToL) the intergovernmental conference (IGC 2007) observes silence between point 45 on Customs cooperation and point 46 on Agriculture and fisheries (OJ 17.12.2007 C 306/52-53). The annexed Tables of equivalences however give us an indication that there is a whole chapter to look at, brief but of fundamental importance to the internal market (OJ 17.12.2007 C 306/207).
We notice that Article 29 of the Treaty establishing the European Community (TEC) first becomes Article 29 of the Treaty on the Functioning of the European Union (TFEU) in the Lisbon Treaty version (ToL), later to be renumbered Article 35 TFEU in the coming consolidated versions.
We set the provision into its future context (from the Tables of equivalences) and present its contents (taken from the latest consolidated version of the current treaties, OJ 29.12.2006 C 321 E/53):
Part Three Policies and internal actions of the Union
Title I The internal market
Chapter 2 (renumbered Chapter 3) Prohibition of quantitative restrictions between Member States
Article 29 TFEU (ToL), renumbered Article 35 TFEU
Quantitative restrictions on exports, and all measures having equivalent effect, shall be prohibited between Member States.
***
The European Convention proposed the following Article III-42 of the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/34):
Subsection 3
Prohibition of quantitative restrictions
Article III-42 Draft Constitution
Quantitative restrictions on imports and exports and all measures having equivalent effect shall be prohibited between Member States.
***
The IGC 2004 took over the draft text ‘verbatim’ as you see in Article III-153 of the Treaty establishing a Constitution for Europe (OJ 16.12.2004 C 310/65):
Subsection 3
Prohibition of quantitative restrictions
Article III-153 Constitution
Quantitative restrictions on imports and exports and all measures having equivalent effect shall be prohibited between Member States.
***
If we take a look at the following Articles of the current TEC and the proposed TFEU, we are able to see that they have separate provisions concerning quantitative restrictions on imports and on exports, whereas the draft Constitution and the Constitution shortened the text by merging the two.
***
Restrictions on import as well as on exports can hinder the free flow of goods in the internal market. Article 29 TFEU (ToL; 35 TFEU) concerns trade between member states, and it is clear enough to be directly applicable, potentially striking down national provisions or practices with contrary effects. Restrictions in relation to third countries are dealt with under external trade provisions.
Examples of prohibited export restrictions include express export quotas, export bans and systematic controls on export goods.
Whereas restrictions on imports raise the presumption of protectionist motives, domestic practices concerning potential exports are less harshly judged. General national measures putting national potential exporters at a disadvantage (reverse discrimination) are tolerated to a certain extent. Examples include less favourable working hours in bakeries and restrictive opening hours for shops serving a cross-border clientele.
Grounds for justifiable domestic measures are found in the following Article 30 TEC and TFEU (ToL), renumbered Article 36 TFEU.
Article 296(1)(b) TEC and TFEU (ToL), renumbered Article 346 TFEU, contains a specific authorisation, on security grounds, of restrictions pertaining to the trade in arms, munitions and war material (but not to products not intended for specifically military purposes).
Ralf Grahn
Thursday, 20 March 2008
EU TFEU: Quantitative import restrictions
Besides security, the main objective of European integration is prosperity for the citizens of the European Union.
The prohibition of quantitative restrictions between member states on imports is one of the fundamental principles of the internal market.
The drafters of the earlier treaties have been smart enough to include ‘all measures having equivalent effect’ and the Treaty of Lisbon to leave the single market provisions undisturbed.
***
In the Treaty of Lisbon (ToL) the intergovernmental conference (IGC 2007) is silent between point 45 on Customs cooperation and point 46 on Agriculture and fisheries (OJ 17.12.2007 C 306/52-53). The annexed Tables of equivalences however give us an indication that there is a whole chapter to look at, brief but of fundamental importance to the internal market (OJ 17.12.2007 C 306/207).
We notice that Article 28 of the Treaty establishing the European Community (TEC) first becomes Article 28 of the Treaty on the Functioning of the European Union (TFEU) in the Lisbon Treaty version (ToL), later to be renumbered Article 34 TFEU in the coming consolidated version.
We set the provision into its future context (from the Tables of equivalences) and present its contents (taken from the latest consolidated version of the current treaties, OJ 29.12.2006 C 321 E/52):
Part Three Policies and internal actions of the Union
Title I The internal market
Chapter 2 (renumbered Chapter 3) Prohibition of quantitative restrictions between Member States
Article 28 TFEU (ToL), renumbered Article 34 TFEU
Quantitative restrictions on imports and all measures having equivalent effect shall be prohibited between Member States.
***
The European Convention proposed the following Article III-42 of the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/34):
Subsection 3
Prohibition of quantitative restrictions
Article III-42 Draft Constitution
Quantitative restrictions on imports and exports and all measures having equivalent effect shall be prohibited between Member States.
***
The IGC 2004 took over the draft text ‘verbatim’ as you see in Article III-153 of the Treaty establishing a Constitution for Europe (OJ 16.12.2004 C 310/65):
Subsection 3
Prohibition of quantitative restrictions
Article III-153 Constitution
Quantitative restrictions on imports and exports and all measures having equivalent effect shall be prohibited between Member States.
***
If we take a look at the following Articles of the current TEC and the proposed TFEU, we are able to see that they have separate provisions concerning quantitative restrictions on imports and on exports, whereas the draft Constitution and the Constitution shortened the text by merging the two.
A citizen of the European Union can only dream of the brevity of the Constitution of the United States of America, but shorter, sharper and clearer treaty texts would in general be an improvement.
In this case, however, the provisions under discussion are among the shortest, and despite their brevity they carry a lot of punch. In addition, they are much sinned against. Preserving the distinction between two different Articles makes it easier to track case law back in time and to deal with different measures where in depth study is called for.
It is therefore preferable to let the coin preserve its two sides, considering the fundamental importance of these distinct provisions for the working of the internal market.
***
Clear quantitative restrictions in international trade are usually called quotas, in this case import quotas.
Import quotas are protective or protectionist measures, since they leave part of the demand to be filled by domestic suppliers (leading to a privileged position for them and conversely to higher prices and less choice for enterprises looking for components or raw materials as well as for consumers).
Creating national artificial bottlenecks on imports contradicts the basic ideas behind the internal market.
***
‘What’s in a name? that which we call a rose
By any other name would smell as sweet.’
Or, as nasty, Shakespeare might have said, had he been into trade instead of young love and protectionism instead of flowers.
One of the main contributions of the drafters of the treaties is the appropriate and repeated use of the phrase ‘and all measures having equivalent effect’. Member states’ restrictive legislative acts or administrative practices do not escape (in the long run) despite creative labelling. Their effects count, not the label.
***
Since the basic tenets of the internal market are left unchanged, they are barely noticeable if you read the research papers or the commentaries on the Lisbon Treaty. You just have to go to text books or case law, if you want to study the single market. (My intention is to look at the treaties as a whole, as they would stand when the Treaty of Lisbon has entered into force. At the present time, earlier posts cover most of the TEU and the beginning of the TFEU.)
***
Some of the treaty provisions need clarifying (secondary) legislation to become effective. Others, like Article 28 (new 34) of the Lisbon Treaty TFEU are clear enough to have direct effect, automatic application. Only by having priority over national provisions does European Community law offer redress to EU firms and citizens.
***
There are permissible prohibitions and restrictions on imports (and exports and goods in transit), but these will be dealt with another day, after we have looked at quantitative restrictions on exports.
Ralf Grahn
The prohibition of quantitative restrictions between member states on imports is one of the fundamental principles of the internal market.
The drafters of the earlier treaties have been smart enough to include ‘all measures having equivalent effect’ and the Treaty of Lisbon to leave the single market provisions undisturbed.
***
In the Treaty of Lisbon (ToL) the intergovernmental conference (IGC 2007) is silent between point 45 on Customs cooperation and point 46 on Agriculture and fisheries (OJ 17.12.2007 C 306/52-53). The annexed Tables of equivalences however give us an indication that there is a whole chapter to look at, brief but of fundamental importance to the internal market (OJ 17.12.2007 C 306/207).
We notice that Article 28 of the Treaty establishing the European Community (TEC) first becomes Article 28 of the Treaty on the Functioning of the European Union (TFEU) in the Lisbon Treaty version (ToL), later to be renumbered Article 34 TFEU in the coming consolidated version.
We set the provision into its future context (from the Tables of equivalences) and present its contents (taken from the latest consolidated version of the current treaties, OJ 29.12.2006 C 321 E/52):
Part Three Policies and internal actions of the Union
Title I The internal market
Chapter 2 (renumbered Chapter 3) Prohibition of quantitative restrictions between Member States
Article 28 TFEU (ToL), renumbered Article 34 TFEU
Quantitative restrictions on imports and all measures having equivalent effect shall be prohibited between Member States.
***
The European Convention proposed the following Article III-42 of the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/34):
Subsection 3
Prohibition of quantitative restrictions
Article III-42 Draft Constitution
Quantitative restrictions on imports and exports and all measures having equivalent effect shall be prohibited between Member States.
***
The IGC 2004 took over the draft text ‘verbatim’ as you see in Article III-153 of the Treaty establishing a Constitution for Europe (OJ 16.12.2004 C 310/65):
Subsection 3
Prohibition of quantitative restrictions
Article III-153 Constitution
Quantitative restrictions on imports and exports and all measures having equivalent effect shall be prohibited between Member States.
***
If we take a look at the following Articles of the current TEC and the proposed TFEU, we are able to see that they have separate provisions concerning quantitative restrictions on imports and on exports, whereas the draft Constitution and the Constitution shortened the text by merging the two.
A citizen of the European Union can only dream of the brevity of the Constitution of the United States of America, but shorter, sharper and clearer treaty texts would in general be an improvement.
In this case, however, the provisions under discussion are among the shortest, and despite their brevity they carry a lot of punch. In addition, they are much sinned against. Preserving the distinction between two different Articles makes it easier to track case law back in time and to deal with different measures where in depth study is called for.
It is therefore preferable to let the coin preserve its two sides, considering the fundamental importance of these distinct provisions for the working of the internal market.
***
Clear quantitative restrictions in international trade are usually called quotas, in this case import quotas.
Import quotas are protective or protectionist measures, since they leave part of the demand to be filled by domestic suppliers (leading to a privileged position for them and conversely to higher prices and less choice for enterprises looking for components or raw materials as well as for consumers).
Creating national artificial bottlenecks on imports contradicts the basic ideas behind the internal market.
***
‘What’s in a name? that which we call a rose
By any other name would smell as sweet.’
Or, as nasty, Shakespeare might have said, had he been into trade instead of young love and protectionism instead of flowers.
One of the main contributions of the drafters of the treaties is the appropriate and repeated use of the phrase ‘and all measures having equivalent effect’. Member states’ restrictive legislative acts or administrative practices do not escape (in the long run) despite creative labelling. Their effects count, not the label.
***
Since the basic tenets of the internal market are left unchanged, they are barely noticeable if you read the research papers or the commentaries on the Lisbon Treaty. You just have to go to text books or case law, if you want to study the single market. (My intention is to look at the treaties as a whole, as they would stand when the Treaty of Lisbon has entered into force. At the present time, earlier posts cover most of the TEU and the beginning of the TFEU.)
***
Some of the treaty provisions need clarifying (secondary) legislation to become effective. Others, like Article 28 (new 34) of the Lisbon Treaty TFEU are clear enough to have direct effect, automatic application. Only by having priority over national provisions does European Community law offer redress to EU firms and citizens.
***
There are permissible prohibitions and restrictions on imports (and exports and goods in transit), but these will be dealt with another day, after we have looked at quantitative restrictions on exports.
Ralf Grahn
Wednesday, 19 March 2008
Heavyweight president for the European Council?
People love to talk about people, and read about them, too. So human interest stories sell newspapers, and circulation numbers sell advertising space, and the economy keeps humming, which is all very well.
But some matters deserve more thoughtful discussion and decision making than that. Let us take the coming president of the Commission, the president of the European Council and the high representative cum vice-president as a case in point.
Two aspects require special attention if Europe wants to bridge the current chasm between leaders dealing among themselves and citizens awarded the role of mere spectators:
1) EU as the world’s schoolmaster in democracy needs to start dismantling its own variety of ‘managed democracy’ in favour of real, representative democracy. A long term commitment to democratic reform, covering the whole of EU activities, is needed from the European leaders.
2) Whenever the existing treaties (including the Lisbon Treaty undergoing ratification) allow, these possibilities should be used consistently to improve EU level democracy, in the vein of the ‘Who do I call?’ initiative.
***
Election procedures
Returning to the one old, the one new and the third spiced up top job, it would, in my view, be more important to discuss the election procedures before speculating about the persons.
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 informed about the result, after the fact.
(Even the conclave of cardinals is larger, though the procedures look pretty equal at the present stage of evolution. On the other hand, the Catholic Church makes no claims to democratic accountability.)
The European Council has the powers, if the will is there, to arrange open nominations, public debate and transparent decision making for the top jobs.
Combining the posts of Commission and European Council president would enhance the democratic legitimacy of the new office holder.
‘Objective’ criteria
The second issue is to look at the qualifications needed. Different viewpoints are not only necessary, they are highly desirable.
My own heavily weighted main criteria would look at the candidate’s career and his/her country’s track record with the following in mind:
* Ratification of the Lisbon Treaty and conduct during the reform process since Maastricht
* The Eurozone
* The Schengen area
* The Charter of Fundamental Rights
* Commitment to develop a real CFSP and CSDP based on dual EU and NATO membership
* Commitment to a future democratic European Union
Personal qualifications
Then come the personal qualities of the candidates, when they have been publicly fielded and we get to know who they are and what they stand for.
***
The coming office holders are going to have clout only if the European Union gets its act together. One way to give the EU’s top representatives backing when dealing with world leaders is to give them the moral authority democratic legitimacy bestows on holders of political office. Surely, that is more important then the postal country code.
Therefore, both short term and long term improvements are called for.
Ralf Grahn
But some matters deserve more thoughtful discussion and decision making than that. Let us take the coming president of the Commission, the president of the European Council and the high representative cum vice-president as a case in point.
Two aspects require special attention if Europe wants to bridge the current chasm between leaders dealing among themselves and citizens awarded the role of mere spectators:
1) EU as the world’s schoolmaster in democracy needs to start dismantling its own variety of ‘managed democracy’ in favour of real, representative democracy. A long term commitment to democratic reform, covering the whole of EU activities, is needed from the European leaders.
2) Whenever the existing treaties (including the Lisbon Treaty undergoing ratification) allow, these possibilities should be used consistently to improve EU level democracy, in the vein of the ‘Who do I call?’ initiative.
***
Election procedures
Returning to the one old, the one new and the third spiced up top job, it would, in my view, be more important to discuss the election procedures before speculating about the persons.
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 informed about the result, after the fact.
(Even the conclave of cardinals is larger, though the procedures look pretty equal at the present stage of evolution. On the other hand, the Catholic Church makes no claims to democratic accountability.)
The European Council has the powers, if the will is there, to arrange open nominations, public debate and transparent decision making for the top jobs.
Combining the posts of Commission and European Council president would enhance the democratic legitimacy of the new office holder.
‘Objective’ criteria
The second issue is to look at the qualifications needed. Different viewpoints are not only necessary, they are highly desirable.
My own heavily weighted main criteria would look at the candidate’s career and his/her country’s track record with the following in mind:
* Ratification of the Lisbon Treaty and conduct during the reform process since Maastricht
* The Eurozone
* The Schengen area
* The Charter of Fundamental Rights
* Commitment to develop a real CFSP and CSDP based on dual EU and NATO membership
* Commitment to a future democratic European Union
Personal qualifications
Then come the personal qualities of the candidates, when they have been publicly fielded and we get to know who they are and what they stand for.
***
The coming office holders are going to have clout only if the European Union gets its act together. One way to give the EU’s top representatives backing when dealing with world leaders is to give them the moral authority democratic legitimacy bestows on holders of political office. Surely, that is more important then the postal country code.
Therefore, both short term and long term improvements are called for.
Ralf Grahn
EU TFEU: Customs cooperation
EU customs cooperation plays a key role in the fight against fraud and organised crime. We look at the current provision on customs cooperation and what the Lisbon Treaty brings to these activities within the European Union.
***
The Treaty of Lisbon (ToL) moves the provision on Customs cooperation of the Treaty establishing the European Community (TEC) into the vicinity of the provisions of Chapter 1 The customs union in the Treaty on the Functioning of the European Union (TFEU)(OJ 17.12.2007 C 306/52):
45) A Chapter Ia entitled ‘CUSTOMS COOPERATION’ shall be inserted after Article 27, and an Article 27a shall be inserted with the wording of Article 135, the last sentence of that Article being deleted.
***
The current Article 135 TEC is found in the latest consolidated version of the treaties, OJ 29.12.2006 C 321 E/106:
TITLE X
CUSTOMS COOPERATION
Article 135 TEC
Within the scope of application of this Treaty, the Council, acting in accordance with the procedure referred to in Article 251, shall take measures in order to strengthen customs cooperation between Member States and between the latter and the Commission. These measures shall not concern the application of national criminal law or the national administration of justice.
***
The Lisbon Treaty is like Ikea furniture: It is handy to store and to transport, but some effort is needed before it serves its purpose. We are now ready to start the construction phase. We follow the express instructions, apply the horizontal amendments as needed, in this case 2(b) and 2(c), and take note of the renumbering to take place. The end result should show what was willed by the intergovernmental conference (IGC 2007):
Part Three Policies and internal actions of the Union
Title I The internal market
Chapter 1a Customs cooperation TFEU (ToL) (to be renumbered Chapter 2 TFEU)
Article 27a TFEU (ToL), after renumbering Article 33 TFEU
Within the scope of application of the Treaties, the European Parliament and the Council, acting in accordance with the ordinary legislative procedure, shall take measures in order to strengthen customs cooperation between Member States and between the latter and the Commission.
***
We then look at the intermediate stages of the treaty reform process. First, the European Convention proposed the following Article III-41 of the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/34):
Subsection 2
Customs cooperation
Article III-41 Draft Constitution
Within the scope of application of the Constitution, European laws or framework laws shall establish measures in order to strengthen customs cooperation between Member States and between the latter and the Commission.
***
The IGC was content to replace ‘the latter’ by ‘them’ in the Treaty establishing a Constitution for Europe, where the corresponding provision was Article III-152, under Section 3 Free movement of goods, Subsection 2 Customs cooperation (OJ 16.12.2004 C 310/65).
***
The legislative procedure has undergone some name changes along the way. The present co-decision procedure (officially ‘the procedure referred to in Article 251’), became ‘European laws or framework laws’ in the draft Constitution and the Constitution, but after the constitutional concept was jettisoned the IGC hauled in ‘the ordinary legislative procedure’ of the Lisbon Treaty. Substantially there is no difference.
Materially the draft Constitution entailed one amendment of note. Deleting the sentence ‘These measures shall not concern the application of national criminal law or the national administration of justice’ removes a restriction of the scope of allowed legislation.
Enabling measures concerning national criminal law and administration of criminal justice has the potential to counter for instance product and trademark piracy, drugs and arms trafficking, trafficking in human beings and other cross-border crime more effectively than at present, as well as enforce the financial interests of the EU.
Detailed provisions are found in Title IV (ToL, renumbered V TFEU) Area of freedom, security and justice, especially Chapter 4 Judicial cooperation in criminal matters.
These extended powers should be welcomed by legally operating businesses and EU citizens in general. They are less welcome for shady third country operators and criminal organisations and, perhaps, for member states that possibly will the ends, but not the means of joint crime prevention and enforcement. (Denmark, Ireland and the United Kingdom have secured opt-outs from the area of freedom, security and justice.)
***
The Commission’s pages on Justice and Home Affairs, Freedom, Security and Justice, Customs cooperation, offer a starting point for further reading ‘Customs authorities at the heart of the fight against cross-border crime in the EU’:
http://ec.europa.eu/justice_home/fsj/customs/fsj_customs_intro_en.htm
There are further web pages on the Information system, the Investigation database and on Mutual assistance, but these undated entries seem to be in need of an update (or the willingness of member states to ratify conventions).
The European Parliament offers and introduction to Customs cooperation with more exact references and links (last update 16 December 2005, so still leaves a gap of more than two years) at:
http://www.europarl.europa.eu/comparl/libe/elsj/zoom_in/21_en.htm
The General Report on the Activities of the European Union 2007 (page 167) adds the following titbits to our knowledge about customs cooperation:
“In 2007 work continued within the various institutions on laying down the modernised Community Customs Code (5) and establishing e-customs, which aims to replace all customs procedures with interconnected national computerised procedures.
In the field of international relations, on 11 April the Commission proposed the conclusion of an agreement on customs cooperation and mutual administrative assistance in customs matters between the European Community and the government of Japan.”
In addition to ‘hard law’ measures ‘soft law’ means to improve customs cooperation should be remembered. Yesterday’s article EU TFEU: Customs union aims’ mentioned Decision No 624/2007/EC of the European Parliament and of the Council of 23 May 2007 establishing an action programme for customs in the Community (Customs 2013) (OJ 14.6.2007 L 154/25), which presents how the strategic goals of the European Community are pursued at the operational level of customs administrations through an action programme from the beginning of 2008 until the end of 2013 (in line with the current multiannual financial framework).
The Customs 2013 Programme consists of the following activities, according to Article 1(2):
(a) communication and information-exchange systems;
(b) benchmarking;
(c) seminars and workshops;
(d) project groups and steering groups;
(e) working visits;
(f) training activities;
(g) monitoring actions;
(h) any other activities required for the realisation of the objectives of the programme.
Ralf Grahn
***
The Treaty of Lisbon (ToL) moves the provision on Customs cooperation of the Treaty establishing the European Community (TEC) into the vicinity of the provisions of Chapter 1 The customs union in the Treaty on the Functioning of the European Union (TFEU)(OJ 17.12.2007 C 306/52):
45) A Chapter Ia entitled ‘CUSTOMS COOPERATION’ shall be inserted after Article 27, and an Article 27a shall be inserted with the wording of Article 135, the last sentence of that Article being deleted.
***
The current Article 135 TEC is found in the latest consolidated version of the treaties, OJ 29.12.2006 C 321 E/106:
TITLE X
CUSTOMS COOPERATION
Article 135 TEC
Within the scope of application of this Treaty, the Council, acting in accordance with the procedure referred to in Article 251, shall take measures in order to strengthen customs cooperation between Member States and between the latter and the Commission. These measures shall not concern the application of national criminal law or the national administration of justice.
***
The Lisbon Treaty is like Ikea furniture: It is handy to store and to transport, but some effort is needed before it serves its purpose. We are now ready to start the construction phase. We follow the express instructions, apply the horizontal amendments as needed, in this case 2(b) and 2(c), and take note of the renumbering to take place. The end result should show what was willed by the intergovernmental conference (IGC 2007):
Part Three Policies and internal actions of the Union
Title I The internal market
Chapter 1a Customs cooperation TFEU (ToL) (to be renumbered Chapter 2 TFEU)
Article 27a TFEU (ToL), after renumbering Article 33 TFEU
Within the scope of application of the Treaties, the European Parliament and the Council, acting in accordance with the ordinary legislative procedure, shall take measures in order to strengthen customs cooperation between Member States and between the latter and the Commission.
***
We then look at the intermediate stages of the treaty reform process. First, the European Convention proposed the following Article III-41 of the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/34):
Subsection 2
Customs cooperation
Article III-41 Draft Constitution
Within the scope of application of the Constitution, European laws or framework laws shall establish measures in order to strengthen customs cooperation between Member States and between the latter and the Commission.
***
The IGC was content to replace ‘the latter’ by ‘them’ in the Treaty establishing a Constitution for Europe, where the corresponding provision was Article III-152, under Section 3 Free movement of goods, Subsection 2 Customs cooperation (OJ 16.12.2004 C 310/65).
***
The legislative procedure has undergone some name changes along the way. The present co-decision procedure (officially ‘the procedure referred to in Article 251’), became ‘European laws or framework laws’ in the draft Constitution and the Constitution, but after the constitutional concept was jettisoned the IGC hauled in ‘the ordinary legislative procedure’ of the Lisbon Treaty. Substantially there is no difference.
Materially the draft Constitution entailed one amendment of note. Deleting the sentence ‘These measures shall not concern the application of national criminal law or the national administration of justice’ removes a restriction of the scope of allowed legislation.
Enabling measures concerning national criminal law and administration of criminal justice has the potential to counter for instance product and trademark piracy, drugs and arms trafficking, trafficking in human beings and other cross-border crime more effectively than at present, as well as enforce the financial interests of the EU.
Detailed provisions are found in Title IV (ToL, renumbered V TFEU) Area of freedom, security and justice, especially Chapter 4 Judicial cooperation in criminal matters.
These extended powers should be welcomed by legally operating businesses and EU citizens in general. They are less welcome for shady third country operators and criminal organisations and, perhaps, for member states that possibly will the ends, but not the means of joint crime prevention and enforcement. (Denmark, Ireland and the United Kingdom have secured opt-outs from the area of freedom, security and justice.)
***
The Commission’s pages on Justice and Home Affairs, Freedom, Security and Justice, Customs cooperation, offer a starting point for further reading ‘Customs authorities at the heart of the fight against cross-border crime in the EU’:
http://ec.europa.eu/justice_home/fsj/customs/fsj_customs_intro_en.htm
There are further web pages on the Information system, the Investigation database and on Mutual assistance, but these undated entries seem to be in need of an update (or the willingness of member states to ratify conventions).
The European Parliament offers and introduction to Customs cooperation with more exact references and links (last update 16 December 2005, so still leaves a gap of more than two years) at:
http://www.europarl.europa.eu/comparl/libe/elsj/zoom_in/21_en.htm
The General Report on the Activities of the European Union 2007 (page 167) adds the following titbits to our knowledge about customs cooperation:
“In 2007 work continued within the various institutions on laying down the modernised Community Customs Code (5) and establishing e-customs, which aims to replace all customs procedures with interconnected national computerised procedures.
In the field of international relations, on 11 April the Commission proposed the conclusion of an agreement on customs cooperation and mutual administrative assistance in customs matters between the European Community and the government of Japan.”
In addition to ‘hard law’ measures ‘soft law’ means to improve customs cooperation should be remembered. Yesterday’s article EU TFEU: Customs union aims’ mentioned Decision No 624/2007/EC of the European Parliament and of the Council of 23 May 2007 establishing an action programme for customs in the Community (Customs 2013) (OJ 14.6.2007 L 154/25), which presents how the strategic goals of the European Community are pursued at the operational level of customs administrations through an action programme from the beginning of 2008 until the end of 2013 (in line with the current multiannual financial framework).
The Customs 2013 Programme consists of the following activities, according to Article 1(2):
(a) communication and information-exchange systems;
(b) benchmarking;
(c) seminars and workshops;
(d) project groups and steering groups;
(e) working visits;
(f) training activities;
(g) monitoring actions;
(h) any other activities required for the realisation of the objectives of the programme.
Ralf Grahn
Tuesday, 18 March 2008
EU TFEU: Customs union aims
We look at the strategic objectives of the European Union's customs union in the light of the current Treaty establishing the European Community and the Lisbon Treaty undergoing ratification in the member states.
***
Article 27 of the Treaty establishing the European Community (TEC), in Chapter 1 The customs union, presents the following aims, addressed to the Commission. The latest consolidated version of the current treaties is found in OJ 29.12.2006 C 321 E/52:
Article 27 TEC
In carrying out the tasks entrusted to it under this Chapter the Commission shall be guided by:
(a) the need to promote trade between Member States and third countries;
(b) developments in conditions of competition within the Community in so far as they lead to an improvement in the competitive capacity of undertakings;
(c) the requirements of the Community as regards the supply of raw materials and semi‑finished goods; in this connection the Commission shall take care to avoid distorting conditions of competition between Member States in respect of finished goods;
(d) the need to avoid serious disturbances in the economies of Member States and to ensure rational development of production and an expansion of consumption within the Community.
***
The intergovernmental conference did nothing to disturb these guidelines in the Treaty of Lisbon (ToL), so there are only a few light touches to apply to this provision to be able to read the consolidated version, as it appears in the Treaty on the Functioning of the European Union (TFEU). We bear in mind that ‘Community’ is replaced by ‘Union’, and that the final numbering of the TFEU differs from the Lisbon Treaty version:
Part Three Policies and internal actions of the Union
Title 1a (ToL), later Title II Free movement of goods
Chapter 1 (ToL and TFEU) The customs union
Article 27 TFEU (ToL), after renumbering Article 32 TFEU
In carrying out the tasks entrusted to it under this Chapter the Commission shall be guided by:
(a) the need to promote trade between Member States and third countries;
(b) developments in conditions of competition within the Union in so far as they lead to an improvement in the competitive capacity of undertakings;
(c) the requirements of the Union as regards the supply of raw materials and semi‑finished goods; in this connection the Commission shall take care to avoid distorting conditions of competition between Member States in respect of finished goods;
(d) the need to avoid serious disturbances in the economies of Member States and to ensure rational development of production and an expansion of consumption within the Union.
***
The intermediary stages in the treaty reform process were almost identical to the current and Lisbon Treaty wording:
Article III-40 Draft Constitution (OJ 18.7.2003 C 169/34)
Article 151(6) Constitution (OJ 16.12.2004 C 310/65)
***
The guidelines offered to the Commission are evident in part, with subparagraph (a) targeting external effects and subparagraph (b) aiming at improving competition internally.
The rise in global demand for energy, raw materials, water and food seems to outrun the resource base or the production capacity, which leads to higher prices. Scarcity increases the risk of unfair practices and serious disturbances as well as the possible need for reassessment of consumption patterns.
Like political objectives in general, the aims the Commission is ordered to follow can be contradictory in part. The real test is, as often, which guiding principles are ‘more guiding than others’.
The substantial objectives of the customs union are intrinsically linked to trade policy and internal market aims, but here we take a closer look at questions of more indirect import, focusing administrative developments of customs within the European Community (Union).
***
We assume that the reader is a non-specialist, who wants to get acquainted with the basic aims of the customs union.
The Commission’s ‘Customs strategy’ pages offer an introduction. The Commission proposes legislation, and there is a common customs border, but operations are carried out by 27 national customs administrations (working to fill the EU’s till). Customs and trade policy questions are intertwined. Smooth cooperation between different authorities and a paperless customs environment are present challenges.
The Commission’s customs strategy is from 2001, and there is a joint mission statement from the EU customs administrations (2005) as well as strategic aims and key actions. There are references to key documents for further study:
http://ec.europa.eu/taxation_customs/customs/policy_issues/customs_strategy/index_en.htm
We take note of the page ‘International Customs Day 26 January 2008’ for two reasons. Customs are crucial in the fight against the trafficking of drugs and drugs precursors. In 2007 the European Community was admitted to the World Customs Organisation (WCO), on an ‘interim basis’ akin to the WCO members’ rights and obligations:
http://ec.europa.eu/taxation_customs/article_4709_en.htm
How the objectives in the customs policy area are reflected in customs legislation can be seen by looking at newish legislation in force, with the Community Customs Code and its implementing provisions highlighted as the basic legislation:
http://ec.europa.eu/taxation_customs/common/legislation/legislation/customs/index_en.htm
Proposed legislation is on offer through the page ‘Customs proposals (legislation)’:
http://ec.europa.eu/taxation_customs/common/legislation/proposals/customs/index_en.htm
Given the importance of the Community Customs Code and its implementing decisions, we are offered an explanatory framework ‘101’ by the Commission’s press release ‘Modernised Community Customs Code – Frequently Asked Questions’ (MEMO/08/101, 19 February 2008).
Then there is Decision No 624/2007/EC of the European Parliament and of the Council of 23 May 2007 establishing an action programme for customs in the Community (Customs 2013) (OJ 14.6.2007 L 154/25), which presents how the strategic goals of the European Community are pursued at the operational level of customs administrations through an action programme from the beginning of 2008 until the end of 2013 (in line with the current multiannual financial framework). The general reader is encouraged to read the recitals (‘Whereas’), setting out the priorities of the Customs 2013 Programme.
Ralf Grahn
***
Article 27 of the Treaty establishing the European Community (TEC), in Chapter 1 The customs union, presents the following aims, addressed to the Commission. The latest consolidated version of the current treaties is found in OJ 29.12.2006 C 321 E/52:
Article 27 TEC
In carrying out the tasks entrusted to it under this Chapter the Commission shall be guided by:
(a) the need to promote trade between Member States and third countries;
(b) developments in conditions of competition within the Community in so far as they lead to an improvement in the competitive capacity of undertakings;
(c) the requirements of the Community as regards the supply of raw materials and semi‑finished goods; in this connection the Commission shall take care to avoid distorting conditions of competition between Member States in respect of finished goods;
(d) the need to avoid serious disturbances in the economies of Member States and to ensure rational development of production and an expansion of consumption within the Community.
***
The intergovernmental conference did nothing to disturb these guidelines in the Treaty of Lisbon (ToL), so there are only a few light touches to apply to this provision to be able to read the consolidated version, as it appears in the Treaty on the Functioning of the European Union (TFEU). We bear in mind that ‘Community’ is replaced by ‘Union’, and that the final numbering of the TFEU differs from the Lisbon Treaty version:
Part Three Policies and internal actions of the Union
Title 1a (ToL), later Title II Free movement of goods
Chapter 1 (ToL and TFEU) The customs union
Article 27 TFEU (ToL), after renumbering Article 32 TFEU
In carrying out the tasks entrusted to it under this Chapter the Commission shall be guided by:
(a) the need to promote trade between Member States and third countries;
(b) developments in conditions of competition within the Union in so far as they lead to an improvement in the competitive capacity of undertakings;
(c) the requirements of the Union as regards the supply of raw materials and semi‑finished goods; in this connection the Commission shall take care to avoid distorting conditions of competition between Member States in respect of finished goods;
(d) the need to avoid serious disturbances in the economies of Member States and to ensure rational development of production and an expansion of consumption within the Union.
***
The intermediary stages in the treaty reform process were almost identical to the current and Lisbon Treaty wording:
Article III-40 Draft Constitution (OJ 18.7.2003 C 169/34)
Article 151(6) Constitution (OJ 16.12.2004 C 310/65)
***
The guidelines offered to the Commission are evident in part, with subparagraph (a) targeting external effects and subparagraph (b) aiming at improving competition internally.
The rise in global demand for energy, raw materials, water and food seems to outrun the resource base or the production capacity, which leads to higher prices. Scarcity increases the risk of unfair practices and serious disturbances as well as the possible need for reassessment of consumption patterns.
Like political objectives in general, the aims the Commission is ordered to follow can be contradictory in part. The real test is, as often, which guiding principles are ‘more guiding than others’.
The substantial objectives of the customs union are intrinsically linked to trade policy and internal market aims, but here we take a closer look at questions of more indirect import, focusing administrative developments of customs within the European Community (Union).
***
We assume that the reader is a non-specialist, who wants to get acquainted with the basic aims of the customs union.
The Commission’s ‘Customs strategy’ pages offer an introduction. The Commission proposes legislation, and there is a common customs border, but operations are carried out by 27 national customs administrations (working to fill the EU’s till). Customs and trade policy questions are intertwined. Smooth cooperation between different authorities and a paperless customs environment are present challenges.
The Commission’s customs strategy is from 2001, and there is a joint mission statement from the EU customs administrations (2005) as well as strategic aims and key actions. There are references to key documents for further study:
http://ec.europa.eu/taxation_customs/customs/policy_issues/customs_strategy/index_en.htm
We take note of the page ‘International Customs Day 26 January 2008’ for two reasons. Customs are crucial in the fight against the trafficking of drugs and drugs precursors. In 2007 the European Community was admitted to the World Customs Organisation (WCO), on an ‘interim basis’ akin to the WCO members’ rights and obligations:
http://ec.europa.eu/taxation_customs/article_4709_en.htm
How the objectives in the customs policy area are reflected in customs legislation can be seen by looking at newish legislation in force, with the Community Customs Code and its implementing provisions highlighted as the basic legislation:
http://ec.europa.eu/taxation_customs/common/legislation/legislation/customs/index_en.htm
Proposed legislation is on offer through the page ‘Customs proposals (legislation)’:
http://ec.europa.eu/taxation_customs/common/legislation/proposals/customs/index_en.htm
Given the importance of the Community Customs Code and its implementing decisions, we are offered an explanatory framework ‘101’ by the Commission’s press release ‘Modernised Community Customs Code – Frequently Asked Questions’ (MEMO/08/101, 19 February 2008).
Then there is Decision No 624/2007/EC of the European Parliament and of the Council of 23 May 2007 establishing an action programme for customs in the Community (Customs 2013) (OJ 14.6.2007 L 154/25), which presents how the strategic goals of the European Community are pursued at the operational level of customs administrations through an action programme from the beginning of 2008 until the end of 2013 (in line with the current multiannual financial framework). The general reader is encouraged to read the recitals (‘Whereas’), setting out the priorities of the Customs 2013 Programme.
Ralf Grahn
Monday, 17 March 2008
Fifth freedom? What about the basic ones?
The European Council was up to some grandstanding again at its spring gathering. The presidency conclusions brought us the following visions (Presidency conclusions, document 7652/08):
“In order to become a truly modern and competitive economy, and building on the work carried out on the future of science and technology and on the modernisation of universities, Member States and the EU must remove barriers to the free movement of knowledge by creating a "fifth freedom" based on:
• enhancing the cross-border mobility of researchers, as well as students, scientists, and university teaching staff,
• making the labour market for European researchers more open and competitive,
providing better career structures, transparency and family-friendliness,
• further implementing higher education reforms,
• facilitating and promoting the optimal use of intellectual property created in public research organisations so as to increase knowledge transfer to industry, in particular through an "IP Charter" to be adopted before the end of the year,
• encouraging open access to knowledge and open innovation,
• fostering scientific excellence,
• launching a new generation of world-class research facilities,
• promoting the mutual recognition of qualifications.”
***
Sounds fine, until you start thinking that Europeans are more than worker ants, toiling away to amass resources to be redistributed by politicians.
Four market freedoms of free movement are all right, but we Europeans are citizens, too. And when we pause to think about the European leadership in action, we come to the sad conclusion that they have cared little for our political and citizenship rights of late.
Are they the leaders who have shown no signs to open up the running for the presidency of the European Council or the High Representative for public scrutiny or democratic accountability?
Are they the leaders who profess the value of democracy both internally and externally, but show little signs of relinquishing the ‘managed democracy’ they have instituted at EU level?
Are these the same leaders who for months on end have stonewalled publishing the coming and now signed Lisbon Treaty in readable, consolidated versions, even if the amending treaty is the most important document to be produced within the European Union since 2004?
Are they the Commission and the European Parliament who have been content to let the Council keep the citizens in the dark?
Are they the European Parliament, which as an institution has sided with its ‘culturally diverse’ membership against calls for publishing and rooting out the squandering and misappropriation of public funds?
***
The common denominator for the questions above seems to be that less than free movement of knowledge has been the express desire of the honourable men (and women), who have taken upon themselves the burden to uphold their prerogatives.
By all means, remove barriers to the free movement of knowledge by creating a "fifth freedom", but start by giving EU citizens grown ups’ rights.
Ralf Grahn
“In order to become a truly modern and competitive economy, and building on the work carried out on the future of science and technology and on the modernisation of universities, Member States and the EU must remove barriers to the free movement of knowledge by creating a "fifth freedom" based on:
• enhancing the cross-border mobility of researchers, as well as students, scientists, and university teaching staff,
• making the labour market for European researchers more open and competitive,
providing better career structures, transparency and family-friendliness,
• further implementing higher education reforms,
• facilitating and promoting the optimal use of intellectual property created in public research organisations so as to increase knowledge transfer to industry, in particular through an "IP Charter" to be adopted before the end of the year,
• encouraging open access to knowledge and open innovation,
• fostering scientific excellence,
• launching a new generation of world-class research facilities,
• promoting the mutual recognition of qualifications.”
***
Sounds fine, until you start thinking that Europeans are more than worker ants, toiling away to amass resources to be redistributed by politicians.
Four market freedoms of free movement are all right, but we Europeans are citizens, too. And when we pause to think about the European leadership in action, we come to the sad conclusion that they have cared little for our political and citizenship rights of late.
Are they the leaders who have shown no signs to open up the running for the presidency of the European Council or the High Representative for public scrutiny or democratic accountability?
Are they the leaders who profess the value of democracy both internally and externally, but show little signs of relinquishing the ‘managed democracy’ they have instituted at EU level?
Are these the same leaders who for months on end have stonewalled publishing the coming and now signed Lisbon Treaty in readable, consolidated versions, even if the amending treaty is the most important document to be produced within the European Union since 2004?
Are they the Commission and the European Parliament who have been content to let the Council keep the citizens in the dark?
Are they the European Parliament, which as an institution has sided with its ‘culturally diverse’ membership against calls for publishing and rooting out the squandering and misappropriation of public funds?
***
The common denominator for the questions above seems to be that less than free movement of knowledge has been the express desire of the honourable men (and women), who have taken upon themselves the burden to uphold their prerogatives.
By all means, remove barriers to the free movement of knowledge by creating a "fifth freedom", but start by giving EU citizens grown ups’ rights.
Ralf Grahn
EU TFEU: Common Customs Tariff duties
The member states of the European Union have a common Community Customs Code, about to be replaced by a Modernised Customs Code, which aims to simplify customs operations in an increasingly paperless, electronic environment.
The Customs Code, further implementing acts and detailed decisions on tariffs are based on Article 26 of the Treaty establishing the European Community, preserved in the amending Lisbon Treaty.
***
The current Article 26 of the Treaty establishing the European Community (TEC) forms the legal base for setting customs tariff duties. We locate the provision in the latest consolidated edition of the existing treaties, OJ 29.12.2006 C 321 E/52:
Article 26 TEC
Common Customs Tariff duties shall be fixed by the Council acting by a qualified majority on a proposal from the Commission.
***
In the Treaty of Lisbon (ToL) the intergovernmental conference (IGC 2007) made no express amendments to Article 26 TEC. Still, the treaty is renamed the Treaty on the Functioning of the European Union (TFEU), the words ‘acting by a qualified majority’ are deleted according to horizontal amendment 2(d) and readers of later consolidated versions of the amended treaty are going to see the provision under a new number (as presented in the tables of equivalences, OJ 17.12.2007 C 306/207):
Article 26 TFEU (ToL), renumbered Article 31 TFEU
Common Customs Tariff duties shall be fixed by the Council on a proposal from the Commission.
***
There were minor differences in wording, but the previous stages of treaty reform were substantially the same as the provisions presented above:
Article III-39 Draft Constitution (OJ 18.7.2003 C 169/34).
Article III-151(5) Constitution (OJ 16.12.2004 C 310/65).
***
Two days ago I pointed the interested reader towards additional information including the following: The potential exporter or importer can start on the Commission’s web pages Taxation and Customs Union: Free circulation. There are links to the 78 page Community Customs Code (CC) and its 700 pages of implementing provisions. The Modernised Community Customs Code (MCCC) was approved without amendment by the European Parliament 19 February 2008, and it is expected to enter into force in the middle of 2008. New implementing provisions are then expected for the end of this year or the beginning of 2009. Start the tour at:
http://ec.europa.eu/taxation_customs/customs/procedural_aspects/imports/free_circulation/index_en.htm
Now we could take an additional step, by looking up what the European Parliament had to say about the Modernised Community Customs Code (MCCC).
The European Parliament, at second reading, without amendments approved the Council common position on the adoption of a regulation laying down the Community Customs Code (Modernised Customs Code):
http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+TA+P6-TA-2008-0049+0+DOC+XML+V0//EN&language=EN
In all its formality, the EP legislative resolution presents a number of documents we can access, if we want to study the matter more closely. We choose to take a look at the Council common position (OJ 11.12.2007 C 298 E/1), found in the Official Journal, under Information and Notices:
http://eur-lex.europa.eu/JOIndex.do?year=2007&serie=C&textfield2=298E&Submit=Search&_submit=Search&ihmlang=en
The first four pages of reasons (‘Whereas’) offer the general reader an overview of the Community customs union as the basis for the specific decisions to be taken pursuant to Article 26 TFEU (ToL), renumbered Article 31 TFEU. The specialist may want to peruse all 68 pages of the Modernised Customs Code.
Ralf Grahn
.
The Customs Code, further implementing acts and detailed decisions on tariffs are based on Article 26 of the Treaty establishing the European Community, preserved in the amending Lisbon Treaty.
***
The current Article 26 of the Treaty establishing the European Community (TEC) forms the legal base for setting customs tariff duties. We locate the provision in the latest consolidated edition of the existing treaties, OJ 29.12.2006 C 321 E/52:
Article 26 TEC
Common Customs Tariff duties shall be fixed by the Council acting by a qualified majority on a proposal from the Commission.
***
In the Treaty of Lisbon (ToL) the intergovernmental conference (IGC 2007) made no express amendments to Article 26 TEC. Still, the treaty is renamed the Treaty on the Functioning of the European Union (TFEU), the words ‘acting by a qualified majority’ are deleted according to horizontal amendment 2(d) and readers of later consolidated versions of the amended treaty are going to see the provision under a new number (as presented in the tables of equivalences, OJ 17.12.2007 C 306/207):
Article 26 TFEU (ToL), renumbered Article 31 TFEU
Common Customs Tariff duties shall be fixed by the Council on a proposal from the Commission.
***
There were minor differences in wording, but the previous stages of treaty reform were substantially the same as the provisions presented above:
Article III-39 Draft Constitution (OJ 18.7.2003 C 169/34).
Article III-151(5) Constitution (OJ 16.12.2004 C 310/65).
***
Two days ago I pointed the interested reader towards additional information including the following: The potential exporter or importer can start on the Commission’s web pages Taxation and Customs Union: Free circulation. There are links to the 78 page Community Customs Code (CC) and its 700 pages of implementing provisions. The Modernised Community Customs Code (MCCC) was approved without amendment by the European Parliament 19 February 2008, and it is expected to enter into force in the middle of 2008. New implementing provisions are then expected for the end of this year or the beginning of 2009. Start the tour at:
http://ec.europa.eu/taxation_customs/customs/procedural_aspects/imports/free_circulation/index_en.htm
Now we could take an additional step, by looking up what the European Parliament had to say about the Modernised Community Customs Code (MCCC).
The European Parliament, at second reading, without amendments approved the Council common position on the adoption of a regulation laying down the Community Customs Code (Modernised Customs Code):
http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+TA+P6-TA-2008-0049+0+DOC+XML+V0//EN&language=EN
In all its formality, the EP legislative resolution presents a number of documents we can access, if we want to study the matter more closely. We choose to take a look at the Council common position (OJ 11.12.2007 C 298 E/1), found in the Official Journal, under Information and Notices:
http://eur-lex.europa.eu/JOIndex.do?year=2007&serie=C&textfield2=298E&Submit=Search&_submit=Search&ihmlang=en
The first four pages of reasons (‘Whereas’) offer the general reader an overview of the Community customs union as the basis for the specific decisions to be taken pursuant to Article 26 TFEU (ToL), renumbered Article 31 TFEU. The specialist may want to peruse all 68 pages of the Modernised Customs Code.
Ralf Grahn
.
Sunday, 16 March 2008
EU TFEU: Customs union
Within the internal market customs duties on imports and exports are banned. But in addition to these obvious prohibitions other charges or ‘taxes’ can have discriminatory effects. The Court of Justice has repeatedly drawn the line between genuine measures and discriminatory practices.
***
Article 25 of the Treaty establishing the European Community (TEC) is one of the provisions left alone by the intergovernmental conference (IGC 2007) in the Treaty of Lisbon (ToL). In the renamed Treaty on the Functioning of the European Union (TFEU) the Article number is initially preserved, but in later versions of the treaty the provision will appear as Article 30 (OJ 17.12.2006 C 306/207):
Part Three Union policies and internal actions
Title II Free movement of goods
Chapter 1 The customs union
Article 25 TFEU (ToL), renumbered Article 30 TFEU
Customs duties on imports and exports and charges having equivalent effect shall be prohibited between Member States. This prohibition shall also apply to customs duties of a fiscal nature.
***
The unchanged provision can be followed through the preceding stages:
Article 25 TEC in OJ 29.12.2006 C 321 E/52.
Article III-38 Draft Constitution in OJ 18.7.2003 C 169/34.
Article III-151(4) Constitution in OJ 16.12.2004 C 310/65.
***
As a customs union the European Community (in the future the European Union) has a common customs border in relation to third countries.
Within the customs union customs duties are prohibited on both imports and exports.
This prohibition is extended to all discriminatory measures, whatever they are called. For instance inspection charges on imported goods or ‘taxes’ targeting imports unfairly compared to domestic products are prohibited. A measure is judged not by its name, but by its effects.
Since taxation is largely a matter for the member states, and the efforts to harmonise taxation have yielded fairly modest results, the Court of Justice (to be known as the Court of Justice of the European Union, CJEU) has frequently had to pronounce legislative acts of member states to be contrary to the prohibition.
***
If your business wants support or advice on business opportunities within the European Union or information on EU legislation, you can turn to one of the 600 partner organisations of the Enterprise Europe Network, in 40 countries, launched in February 2008, but building on previous experience.
More about the Enterprise Europe Network on:
http://www.enterprise-europe-network.ec.europa.eu/index_en.htm
***
A citizen or business facing problems caused by misapplication of internal market law by public authorities can use the good offices of the SOLVIT network to solve problems without legal proceedings:
http://ec.europa.eu/solvit/site/index_en.htm
***
Discriminating charges having equivalent effect, including customs duties of a fiscal nature, between member states are less a question of misapplication of EC legislation and more of mis-legislation. Therefore the Court of Justice has often been called on to draw the lines between prohibited and justified national measures.
The handy Alphabetical Table of Subject-matter (Table alphabétique des matières) covers the volumes from 1985 to 2001. Unfortunately it is available only in French, but under ‘Droits de douane et taxes d’effet équivalent’ you find more than four tightly spaced pages of cited cases:
http://curia.europa.eu/fr/content/outils/tm.pdf
Without the ECJ as the final arbiter individuals and businesses would often lack the means to effectively challenge discriminating legislation.
Ralf Grahn
***
Article 25 of the Treaty establishing the European Community (TEC) is one of the provisions left alone by the intergovernmental conference (IGC 2007) in the Treaty of Lisbon (ToL). In the renamed Treaty on the Functioning of the European Union (TFEU) the Article number is initially preserved, but in later versions of the treaty the provision will appear as Article 30 (OJ 17.12.2006 C 306/207):
Part Three Union policies and internal actions
Title II Free movement of goods
Chapter 1 The customs union
Article 25 TFEU (ToL), renumbered Article 30 TFEU
Customs duties on imports and exports and charges having equivalent effect shall be prohibited between Member States. This prohibition shall also apply to customs duties of a fiscal nature.
***
The unchanged provision can be followed through the preceding stages:
Article 25 TEC in OJ 29.12.2006 C 321 E/52.
Article III-38 Draft Constitution in OJ 18.7.2003 C 169/34.
Article III-151(4) Constitution in OJ 16.12.2004 C 310/65.
***
As a customs union the European Community (in the future the European Union) has a common customs border in relation to third countries.
Within the customs union customs duties are prohibited on both imports and exports.
This prohibition is extended to all discriminatory measures, whatever they are called. For instance inspection charges on imported goods or ‘taxes’ targeting imports unfairly compared to domestic products are prohibited. A measure is judged not by its name, but by its effects.
Since taxation is largely a matter for the member states, and the efforts to harmonise taxation have yielded fairly modest results, the Court of Justice (to be known as the Court of Justice of the European Union, CJEU) has frequently had to pronounce legislative acts of member states to be contrary to the prohibition.
***
If your business wants support or advice on business opportunities within the European Union or information on EU legislation, you can turn to one of the 600 partner organisations of the Enterprise Europe Network, in 40 countries, launched in February 2008, but building on previous experience.
More about the Enterprise Europe Network on:
http://www.enterprise-europe-network.ec.europa.eu/index_en.htm
***
A citizen or business facing problems caused by misapplication of internal market law by public authorities can use the good offices of the SOLVIT network to solve problems without legal proceedings:
http://ec.europa.eu/solvit/site/index_en.htm
***
Discriminating charges having equivalent effect, including customs duties of a fiscal nature, between member states are less a question of misapplication of EC legislation and more of mis-legislation. Therefore the Court of Justice has often been called on to draw the lines between prohibited and justified national measures.
The handy Alphabetical Table of Subject-matter (Table alphabétique des matières) covers the volumes from 1985 to 2001. Unfortunately it is available only in French, but under ‘Droits de douane et taxes d’effet équivalent’ you find more than four tightly spaced pages of cited cases:
http://curia.europa.eu/fr/content/outils/tm.pdf
Without the ECJ as the final arbiter individuals and businesses would often lack the means to effectively challenge discriminating legislation.
Ralf Grahn
Saturday, 15 March 2008
EU TFEU: Free circulation of imported goods
Once goods imported into the European Union have cleared customs border control, they are allowed to circulate freely within the EU, subject to the same rules and restrictions which apply to Community products.
***
Article 24 of the Treaty establishing the European Communities (TEC) offers us the opportunity to see a provision untouched by the intergovernmental conference (IGC 2007). The name of the treaty changes to the Treaty on the Functioning of the European Union (TFEU), and there were changes when Part Three was named Policies and internal actions of the Union, and Title I The internal market was inserted.
As shown in the Annex Tables of equivalences referred to in Article 5 of the Treaty of Lisbon (ToL), most provisions have been given a number initially, but will be given a new, more palatable number in coming consolidated versions of the treaties.
Thus, Article 24 TEC is numbered 24 in TFEU (ToL), but will be renumbered Article 29 TFEU (OJ 29.12.2007 C 306/206), but even the horizontal amendments leave the wording alone.
Here is the text (OJ 29.12.2006 C 321 E/51 for the latest consolidated version of the current treaties):
Article 24 TFEU (ToL), after renumbering Article 29 TFEU
Products coming from a third country shall be considered to be in free circulation in a Member State if the import formalities have been complied with and any customs duties or charges having equivalent effect which are payable have been levied in that Member State, and if they have not benefited from a total or partial drawback of such duties or charges.
***
The corresponding provision in the draft Treaty establishing a Constitution for Europe is Article III-37. The wording is identical, which you can check by looking up OJ 18.7.2003 C 169/33.
The Treaty establishing a Constitution for Europe presented five different Articles as one, but Article III-151(3) reproduces exactly the same wording as the Article under discussion (OJ 16.12.2004 C 310/65).
***
But the third country exporter or the EU importer needs to know how to get the products legally into the European Community (European Union) and thus into free circulation. There are three cumulative criteria to fulfil before imported goods are cleared for free circulation within the European Community:
1) Import ‘formalities’ have to be complied with.
2) Customs duties and other charges have to be paid.
3) The goods have not benefited from drawback of duties or charges.
A few pointers:
Customs authorities play a crucial role. ‘Import formalities’ are much more than what the word ‘formality’ would lead one to believe. In addition to customs duties, Customs officials implement and enforce Community legislation concerning commercial policy measures (quotas, anti-dumping, pirated goods) as well as security, environmental, consumer protection, cultural and agricultural controls. The following Commission web page offers a quick introduction:
http://ec.europa.eu/taxation_customs/customs/customs_controls/general/index_en.htm
The potential exporter or importer can start on the Commission’s web pages Taxation and Customs Union: Free circulation. There are links to the 78 page Community Customs Code (CC) and its 700 pages of implementing provisions. The Modernised Community Customs Code (MCCC) was approved without amendment by the European Parliament 19 February 2008, and it is expected to enter into force in the middle of 2008. New implementing provisions are then expected for the end of this year or the beginning of 2009. Start the tour at:
http://ec.europa.eu/taxation_customs/customs/procedural_aspects/imports/free_circulation/index_en.htm
Once goods from third countries have cleared import requirements and duties, they are allowed to circulate freely in the internal market (single market). The Commission published an introduction to the single market 14 March 2008, a 20 page brochure aimed at the general reader: Single market for goods – Information pack 2008. Available at:
http://ec.europa.eu/enterprise/regulation/goods/docs/single_mk_info_08/2007_5598_en.pdf
These introductions serve as a base for more detailed information gathering.
Ralf Grahn
***
Article 24 of the Treaty establishing the European Communities (TEC) offers us the opportunity to see a provision untouched by the intergovernmental conference (IGC 2007). The name of the treaty changes to the Treaty on the Functioning of the European Union (TFEU), and there were changes when Part Three was named Policies and internal actions of the Union, and Title I The internal market was inserted.
As shown in the Annex Tables of equivalences referred to in Article 5 of the Treaty of Lisbon (ToL), most provisions have been given a number initially, but will be given a new, more palatable number in coming consolidated versions of the treaties.
Thus, Article 24 TEC is numbered 24 in TFEU (ToL), but will be renumbered Article 29 TFEU (OJ 29.12.2007 C 306/206), but even the horizontal amendments leave the wording alone.
Here is the text (OJ 29.12.2006 C 321 E/51 for the latest consolidated version of the current treaties):
Article 24 TFEU (ToL), after renumbering Article 29 TFEU
Products coming from a third country shall be considered to be in free circulation in a Member State if the import formalities have been complied with and any customs duties or charges having equivalent effect which are payable have been levied in that Member State, and if they have not benefited from a total or partial drawback of such duties or charges.
***
The corresponding provision in the draft Treaty establishing a Constitution for Europe is Article III-37. The wording is identical, which you can check by looking up OJ 18.7.2003 C 169/33.
The Treaty establishing a Constitution for Europe presented five different Articles as one, but Article III-151(3) reproduces exactly the same wording as the Article under discussion (OJ 16.12.2004 C 310/65).
***
But the third country exporter or the EU importer needs to know how to get the products legally into the European Community (European Union) and thus into free circulation. There are three cumulative criteria to fulfil before imported goods are cleared for free circulation within the European Community:
1) Import ‘formalities’ have to be complied with.
2) Customs duties and other charges have to be paid.
3) The goods have not benefited from drawback of duties or charges.
A few pointers:
Customs authorities play a crucial role. ‘Import formalities’ are much more than what the word ‘formality’ would lead one to believe. In addition to customs duties, Customs officials implement and enforce Community legislation concerning commercial policy measures (quotas, anti-dumping, pirated goods) as well as security, environmental, consumer protection, cultural and agricultural controls. The following Commission web page offers a quick introduction:
http://ec.europa.eu/taxation_customs/customs/customs_controls/general/index_en.htm
The potential exporter or importer can start on the Commission’s web pages Taxation and Customs Union: Free circulation. There are links to the 78 page Community Customs Code (CC) and its 700 pages of implementing provisions. The Modernised Community Customs Code (MCCC) was approved without amendment by the European Parliament 19 February 2008, and it is expected to enter into force in the middle of 2008. New implementing provisions are then expected for the end of this year or the beginning of 2009. Start the tour at:
http://ec.europa.eu/taxation_customs/customs/procedural_aspects/imports/free_circulation/index_en.htm
Once goods from third countries have cleared import requirements and duties, they are allowed to circulate freely in the internal market (single market). The Commission published an introduction to the single market 14 March 2008, a 20 page brochure aimed at the general reader: Single market for goods – Information pack 2008. Available at:
http://ec.europa.eu/enterprise/regulation/goods/docs/single_mk_info_08/2007_5598_en.pdf
These introductions serve as a base for more detailed information gathering.
Ralf Grahn
Friday, 14 March 2008
Åland in the European Union
A potential problem on the path towards ratification of the Treaty of Lisbon, the Åland Islands (population 27,000) have made their appearance in international discussion surrounding the treaty.
An example of regions with legislative powers and as one of the territories mentioned specially in the context of the territorial scope of the EU treaties (Protocol No 2 on the Åland islands, in the 1994 Accession Treaty), the autonomous Åland province is of interest to students of law and political sciences, as well as regional authorities and active citizens.
Europe Information, of the Ministry for Foreign Affairs of Finland, has published a 42 page brochure in English, which offers comprehensive information on the position of the province, with interesting aspects of both international law and inner autonomy:
Sören Silverström: Åland in the European Union (Helsinki, 2005)
The booklet can be downloaded here:
http://www.eurooppa-tiedotus.fi/public/download.aspx?ID=21876&GUID={8AF46DE8-EB14-4084-9A79-344A770F84D6}
Along with 72 other regions within the European Union, Åland has a local directly elected parliament (lagtinget) and its own government (landskapsregeringen).
These RegLeg regions cooperate through their annual conferences of presidents of regions with legislative power. The latest conference was held in Barcelona, Catalonia, 15 – 16 November 2007, and the Barcelona Declaration offer the regions’ fairly positive view of the Lisbon Treaty then getting its final touches:
http://www.gencat.cat/regleg/pdf/declaracio_barcelona_eng.pdf
Ralf Grahn
An example of regions with legislative powers and as one of the territories mentioned specially in the context of the territorial scope of the EU treaties (Protocol No 2 on the Åland islands, in the 1994 Accession Treaty), the autonomous Åland province is of interest to students of law and political sciences, as well as regional authorities and active citizens.
Europe Information, of the Ministry for Foreign Affairs of Finland, has published a 42 page brochure in English, which offers comprehensive information on the position of the province, with interesting aspects of both international law and inner autonomy:
Sören Silverström: Åland in the European Union (Helsinki, 2005)
The booklet can be downloaded here:
http://www.eurooppa-tiedotus.fi/public/download.aspx?ID=21876&GUID={8AF46DE8-EB14-4084-9A79-344A770F84D6}
Along with 72 other regions within the European Union, Åland has a local directly elected parliament (lagtinget) and its own government (landskapsregeringen).
These RegLeg regions cooperate through their annual conferences of presidents of regions with legislative power. The latest conference was held in Barcelona, Catalonia, 15 – 16 November 2007, and the Barcelona Declaration offer the regions’ fairly positive view of the Lisbon Treaty then getting its final touches:
http://www.gencat.cat/regleg/pdf/declaracio_barcelona_eng.pdf
Ralf Grahn
EU TFEU: Free movement of goods
The European Community is more than a free trade area. The EC (in the future the EU) is a customs union with a common customs border in relation to third countries. Once a product has legally entered the EC, it can circulate freely within the Community.
Customs duties between the member states are prohibited. So are all charges having equivalent effect (including penalising taxes) as well as quantitative restrictions (quotas) on goods from member states or emanating from third countries but in free circulation in member states.
The Treaty of Lisbon preserves and protects these fundamental principles of the free movement of goods, with some changes of order and terminology.
***
In the Treaty of Lisbon (ToL) the intergovernmental conference (IGC 2007) added the following light touches to Article 23 of the Treaty on establishing the European Community (TEC), renamed the Treaty on the Functioning of the European Union (Official Journal, OJ, 17.12.2007 C 306/52):
43) Title I on the free movement of goods shall become Title Ia.
44) In Article 23(1), the words ‘shall be based upon’ shall be replaced by ‘shall comprise’.
***
The less is said about an amended Article, the more we are dependent on the current provision. Article 23 TEC looks like this (in the latest consolidated version of the TEU and the TEC, in OJ 29.12.2006 C 321 E/51):
PART THREE
COMMUNITY POLICIES
TITLE I
FREE MOVEMENT OF GOODS
Article 23 TEC
1. The Community shall be based upon a customs union which shall cover all trade in goods and which shall involve the prohibition between Member States of customs duties on imports and exports and of all charges having equivalent effect, and the adoption of a common customs tariff in their relations with third countries.
2. The provisions of Article 25 and of Chapter 2 of this title shall apply to products originating in Member States and to products coming from third countries which are in free circulation in Member States.
***
The context and the contents of the amended Article should be the following when the Lisbon Treaty is consolidated, after replacing ‘Community’ by ‘Union’ according to horizontal amendment 2(a), replacing the words as instructed above and checking the referrals in the second paragraph:
Part Three Policies and internal actions of the Union
Title 1a TFEU (ToL), new numbering Title II Free movement of goods
Article 23 TFEU (ToL), after renumbering Article 28 TFEU
1. The Union shall comprise a customs union which shall cover all trade in goods and which shall involve the prohibition between Member States of customs duties on imports and exports and of all charges having equivalent effect, and the adoption of a common customs tariff in their relations with third countries.
2. The provisions of Article 25 [TFEU (ToL, renumbered Article 30 TFEU] and of Chapter 2 [TFEU (ToL), after renumbering Chapter 3 Prohibition of quantitative restrictions between Member States, TFEU] of this title shall apply to products originating in Member States and to products coming from third countries which are in free circulation in Member States.
***
For the sake of easy comparison we look up the corresponding Article in the draft Treaty establishing a Constitution for Europe proposed by the European Convention (OJ 18.7.2003 C 169/33):
SECTION 3
Free movement of goods
Subsection 1
Customs union
Article III-36
1. The Union shall comprise a customs union which shall cover all trade in goods and which shall involve the prohibition between Member States of customs duties on imports and exports and of all charges having equivalent effect, and the adoption of a common customs tariff in their relations with third countries.
2. Article III-38 and Subsection 3 of this Section shall apply to products originating in Member States and to products coming from third countries which are in free circulation in Member States.
***
Without disturbing the contents, the IGC 2004 chose to present the customs union differently, building the equivalent of Articles 23 to 27 TEC and Articles III-36 to III-40 Draft Constitution into one long Article. Although only the first and the second paragraph correspond directly with the provisions we are presenting, offering the full contents of Article III-151 Constitution allows the reader to see a greater whole at a glance (OJ 16.12.2004 C 310/64-65):
SECTION 3
FREE MOVEMENT OF GOODS
Subsection 1
Customs union
Article III-151
1. The Union shall comprise a customs union which shall cover all trade in goods and which shall involve the prohibition between Member States of customs duties on imports and exports and of all charges having equivalent effect, and the adoption of a common customs tariff in their relations with third countries.
2. Paragraph 4 and Subsection 3 on the prohibition of quantitative restrictions shall apply to products originating in Member States and to products coming from third countries which are in free circulation in Member States.
3. Products coming from a third country shall be considered to be in free circulation in a Member State if the import formalities have been complied with and any customs duties or charges having equivalent effect which are payable have been levied in that Member State, and if they have not benefited from a total or partial drawback of such duties or charges.
4. Customs duties on imports and exports and charges having equivalent effect shall be prohibited between Member States. This prohibition shall also apply to customs duties of a fiscal nature.
5. The Council, on a proposal from the Commission, shall adopt the European regulations and decisions fixing Common Customs Tariff duties.
6. In carrying out the tasks entrusted to it under this Article the Commission shall be guided by:
(a) the need to promote trade between Member States and third countries;
(b) developments in conditions of competition within the Union insofar as they lead to an improvement in the competitive capacity of undertakings;
(c) the requirements of the Union as regards the supply of raw materials and semi-finished goods; in this connection the Commission shall take care to avoid distorting conditions of competition between Member States in respect of finished goods;
(d) the need to avoid serious disturbances in the economies of Member States and to ensure rational development of production and an expansion of consumption within the Union.
***
The UK House of Lords European Union Committee has a wonderful introduction, both general and topical, to the single market in its report “The Single Market: Wallflower or Dancing Partner? Inquiry into the European Commission’s Review of the Single Market”.
Ralf Grahn
Recommended reading:
UK House of Lords European Union Committee: The Single Market: Wallflower or Dancing Partner? Inquiry into the European Commission’s Review of the Single Market; Volume I: Report; 5th Report of Session 2007-08; HL Paper 36-I; Published 8 February 2008.
Available at:
http://www.publications.parliament.uk/pa/ld200708/ldselect/ldeucom/36/36.pdf
Read from the Foreword to Chapter 4: General Conclusions (pages 1 – 21). In addition, the report looks in depth at three important sectors: energy, telecommunications and financial services. Volume II (HL Paper 36-I) contains the evidence (which is not restricted to national sources).
Customs duties between the member states are prohibited. So are all charges having equivalent effect (including penalising taxes) as well as quantitative restrictions (quotas) on goods from member states or emanating from third countries but in free circulation in member states.
The Treaty of Lisbon preserves and protects these fundamental principles of the free movement of goods, with some changes of order and terminology.
***
In the Treaty of Lisbon (ToL) the intergovernmental conference (IGC 2007) added the following light touches to Article 23 of the Treaty on establishing the European Community (TEC), renamed the Treaty on the Functioning of the European Union (Official Journal, OJ, 17.12.2007 C 306/52):
43) Title I on the free movement of goods shall become Title Ia.
44) In Article 23(1), the words ‘shall be based upon’ shall be replaced by ‘shall comprise’.
***
The less is said about an amended Article, the more we are dependent on the current provision. Article 23 TEC looks like this (in the latest consolidated version of the TEU and the TEC, in OJ 29.12.2006 C 321 E/51):
PART THREE
COMMUNITY POLICIES
TITLE I
FREE MOVEMENT OF GOODS
Article 23 TEC
1. The Community shall be based upon a customs union which shall cover all trade in goods and which shall involve the prohibition between Member States of customs duties on imports and exports and of all charges having equivalent effect, and the adoption of a common customs tariff in their relations with third countries.
2. The provisions of Article 25 and of Chapter 2 of this title shall apply to products originating in Member States and to products coming from third countries which are in free circulation in Member States.
***
The context and the contents of the amended Article should be the following when the Lisbon Treaty is consolidated, after replacing ‘Community’ by ‘Union’ according to horizontal amendment 2(a), replacing the words as instructed above and checking the referrals in the second paragraph:
Part Three Policies and internal actions of the Union
Title 1a TFEU (ToL), new numbering Title II Free movement of goods
Article 23 TFEU (ToL), after renumbering Article 28 TFEU
1. The Union shall comprise a customs union which shall cover all trade in goods and which shall involve the prohibition between Member States of customs duties on imports and exports and of all charges having equivalent effect, and the adoption of a common customs tariff in their relations with third countries.
2. The provisions of Article 25 [TFEU (ToL, renumbered Article 30 TFEU] and of Chapter 2 [TFEU (ToL), after renumbering Chapter 3 Prohibition of quantitative restrictions between Member States, TFEU] of this title shall apply to products originating in Member States and to products coming from third countries which are in free circulation in Member States.
***
For the sake of easy comparison we look up the corresponding Article in the draft Treaty establishing a Constitution for Europe proposed by the European Convention (OJ 18.7.2003 C 169/33):
SECTION 3
Free movement of goods
Subsection 1
Customs union
Article III-36
1. The Union shall comprise a customs union which shall cover all trade in goods and which shall involve the prohibition between Member States of customs duties on imports and exports and of all charges having equivalent effect, and the adoption of a common customs tariff in their relations with third countries.
2. Article III-38 and Subsection 3 of this Section shall apply to products originating in Member States and to products coming from third countries which are in free circulation in Member States.
***
Without disturbing the contents, the IGC 2004 chose to present the customs union differently, building the equivalent of Articles 23 to 27 TEC and Articles III-36 to III-40 Draft Constitution into one long Article. Although only the first and the second paragraph correspond directly with the provisions we are presenting, offering the full contents of Article III-151 Constitution allows the reader to see a greater whole at a glance (OJ 16.12.2004 C 310/64-65):
SECTION 3
FREE MOVEMENT OF GOODS
Subsection 1
Customs union
Article III-151
1. The Union shall comprise a customs union which shall cover all trade in goods and which shall involve the prohibition between Member States of customs duties on imports and exports and of all charges having equivalent effect, and the adoption of a common customs tariff in their relations with third countries.
2. Paragraph 4 and Subsection 3 on the prohibition of quantitative restrictions shall apply to products originating in Member States and to products coming from third countries which are in free circulation in Member States.
3. Products coming from a third country shall be considered to be in free circulation in a Member State if the import formalities have been complied with and any customs duties or charges having equivalent effect which are payable have been levied in that Member State, and if they have not benefited from a total or partial drawback of such duties or charges.
4. Customs duties on imports and exports and charges having equivalent effect shall be prohibited between Member States. This prohibition shall also apply to customs duties of a fiscal nature.
5. The Council, on a proposal from the Commission, shall adopt the European regulations and decisions fixing Common Customs Tariff duties.
6. In carrying out the tasks entrusted to it under this Article the Commission shall be guided by:
(a) the need to promote trade between Member States and third countries;
(b) developments in conditions of competition within the Union insofar as they lead to an improvement in the competitive capacity of undertakings;
(c) the requirements of the Union as regards the supply of raw materials and semi-finished goods; in this connection the Commission shall take care to avoid distorting conditions of competition between Member States in respect of finished goods;
(d) the need to avoid serious disturbances in the economies of Member States and to ensure rational development of production and an expansion of consumption within the Union.
***
The UK House of Lords European Union Committee has a wonderful introduction, both general and topical, to the single market in its report “The Single Market: Wallflower or Dancing Partner? Inquiry into the European Commission’s Review of the Single Market”.
Ralf Grahn
Recommended reading:
UK House of Lords European Union Committee: The Single Market: Wallflower or Dancing Partner? Inquiry into the European Commission’s Review of the Single Market; Volume I: Report; 5th Report of Session 2007-08; HL Paper 36-I; Published 8 February 2008.
Available at:
http://www.publications.parliament.uk/pa/ld200708/ldselect/ldeucom/36/36.pdf
Read from the Foreword to Chapter 4: General Conclusions (pages 1 – 21). In addition, the report looks in depth at three important sectors: energy, telecommunications and financial services. Volume II (HL Paper 36-I) contains the evidence (which is not restricted to national sources).
Thursday, 13 March 2008
EU TFEU: Internal market softeners and derogations
The competitiveness of member states’ economies varies hugely, and efforts enhance competition within the European Union may affect them differently. The Commission has the responsibility to take these differences into account, when it draws up its proposals for the internal market. This can happen through the standards set, or by transitory periods, or they can accommodate certain members by temporary derogations (exemptions).
These softeners, or ‘safety valve’ principles form an integral part of rule making for the single market.
In addition, we get a bird’s eye view of the whole treaty reform process, leading up to the Union policies and internal actions as agreed in the Treaty of Lisbon.
***
In the Treaty of Lisbon (ToL) the intergovernmental conference amended Article 15 of the Treaty establishing the European Community (TEC), which was adopted as Article 22b of the Treaty on the Functioning of the European Union (TFEU). Here is the text of the IGC 2007 (OJ 17.12.2007 C 306/52):
42) An Article 22b shall be inserted, with the wording of Article 15. In the first paragraph, the words ‘during the period of establishment’ shall be replaced by ‘for the establishment’.
***
Even minimal amendments, indeed, especially these, require recourse to the current TEC to make sense (so we turn to the latest consolidated version of the TEU and the TEC in OJ 29.12.2006 C 321 E/49):
Article 15 TEC
When drawing up its proposals with a view to achieving the objectives set out in Article 14, the Commission shall take into account the extent of the effort that certain economies showing differences in development will have to sustain during the period of establishment of the internal market and it may propose appropriate provisions.
If these provisions take the form of derogations, they must be of a temporary nature and must cause the least possible disturbance to the functioning of the common market.
***
We keep in mind that we study Part Three Union policies and internal actions, Title I The internal market, of the TFEU.
Our following task is to consolidate the Article, merging existing contents with amendments, and taking into account that the ToL uses one set of numbering, but indicates a new numbering for future consolidated versions of the treaties (in the tables of eqivalences). The end result should look like this:
Article 22b TFEU (ToL), after renumbering Article 27 TFEU
When drawing up its proposals with a view to achieving the objectives set out in Article 22a [TFEU (ToL), after renumbering Article 26 TFEU], the Commission shall take into account the extent of the effort that certain economies showing differences in development will have to sustain for the establishment of the internal market and it may propose appropriate provisions.
If these provisions take the form of derogations, they must be of a temporary nature and must cause the least possible disturbance to the functioning of the internal market.
***
After spanning the whole distance from the current TEC to the new TFEU, we take a look at two of the individual arches in between, the draft Constitution and the Constitution.
Perhaps a few preliminary general comments are in order. The treaty reform process can be seen as continuous. You can choose to look at the Treaty of Maastricht (Treaty on European Union, TEU) as a first, remarkable stage, which however left unfinished business to which were later added the fact and the prospect of enlargement. These questions were only in part remedied by the Treaty of Amsterdam and the Treaty of Nice, attested to by the fact that the same European Council which agreed on the Nice Treaty felt the need to declare the need for continued reform. With this interpretation we have a more or less continuing reform process from about 1990 until today (2008).
The other point of view would be to see the unsatisfactory Treaty of Nice (signed 2001) as the starting point for a new reform process, with the Declaration of Laeken, the European Convention and its draft Constitution, the IGC 2004 and the Constitutional Treaty, and the retrenchment after failed ratification and the partial relaunch by the IGC 2007 leading to the Lisbon Treaty as the principal stages. Even this shorter history of treaty reform, from December 2000 (Nice) until today (early 2008), presents the picture of seven lean years since no substantial changes have been harvested, namely entered into force (although the accession treaties of 2003 and 2005 should be remembered).
The common denominator has been institutional all along, with decision making structures of the European Union in focus.
The two high points were, in my opinion:
1) The convention method and the work of the first Convention leading to the Charter of Fundamental Rights, and the European Convention (the second one), which produced the draft Constitution. Without being perfect, they embodied more democratic legitimacy than any attempt since the Spinelli draft (1984).
2) The Treaty establishing a Constitution for Europe (2004), where the IGC 2004 achieved some technical improvements and subtracted a few substantial ones, was still remarkable in that it promised substantial reform and a fairly well organised and readable text (although overly long).
Having read countless stories on the ‘failed Constitution’, I think it is time to make a distinction. The Constitutional Treaty was not a failure. Actually, it was as good as it gets at this stage of development, given the strictures of unanimous decision making in a large forum of disparate member states.
Only the ratification process failed, falling victim to the almost impossible requirement to get any meaningful reform approved constitutionally in 27 member states.
The end result is, after the relaunch, the Lisbon Treaty, a sort of ‘Zombie Constitution’, with most of the material contents of the Constitutional Treaty, but without its soul. In addition, the vestments are tattered, riven into a myriad of separate amendments. Only when consolidated versions of the Treaty of Lisbon appear, can a citizen of the EU read and begin to understand the most important document of the European Union since 2004.
The last leg of this ‘scenic route’ takes us back to the policies and internal actions of the European Union.
Because the focus during the whole reform process has been on decision making and institutional issues, the policy areas and internal actions of the EU, including the internal market, have mainly been reorganised and tidied up, without much substantial reform (with the area of freedom, security and justice the most notable exception).
Therefore, the study of the new EU policies ‘de lege ferenda’ is very much the study of existing Community policies ‘de lege lata’, with some new terminology and a few nuances thrown in for good measure. (Calls for a reform of the substantial areas of action have been heard, but the European leaders have been silent lately. A number of member states signalled the need to reform the Euratom Treaty, treated even more like a stepchild or afterthought by various reform conclaves.)
In other words, do not be surprised if you find few surprises, but still there is cause to study the internal EU actions as they are meant to be, and the preceding stages.
***
The European Convention proposed the following in the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/30):
Article III-15 Draft Constitution
When drawing up its proposals with a view to achieving the objectives set out in Article III-14, the Commission shall take into account the extent of the effort that certain economies showing differences in development will have to sustain for the establishment of the internal market and it may propose appropriate measures.
If these measures take the form of derogations, they must be of a temporary nature and must cause the least possible disturbance to the functioning of the internal market.
***
The Treaty establishing a Constitution for Europe merged two Articles of the draft, so technically we compare the text of its fourth paragraph with draft Article III-15, but reading the whole Article III-130 of the Constitutional Treaty reminds us of the context (OJ 16.12.2004 C 310/58):
Article III-130 Constitution
1. The Union shall adopt measures with the aim of establishing or ensuring the functioning of the internal market, in accordance with the relevant provisions of the Constitution.
2. The internal market shall comprise an area without internal frontiers in which the free movement of persons, services, goods and capital is ensured in accordance with the Constitution.
3. The Council, on a proposal from the Commission, shall adopt European regulations and decisions determining the guidelines and conditions necessary to ensure balanced progress in all the sectors concerned.
4. When drawing up its proposals for achieving the objectives set out in paragraphs 1 and 2, the Commission shall take into account the extent of the effort that certain economies showing differences in development will have to sustain for the establishment of the internal market and it may propose appropriate measures.
If these measures take the form of derogations, they must be of a temporary nature and must cause the least possible disturbance to the functioning of the internal market.
***
You are now free to make your own comparison. If you find that the changes from the present TEC to the Lisbon Treaty are of less than mind-boggling proportions, you may be right.
***
For those who want to compare the Treaty of Lisbon with its immediate predecessor, the Constitutional Treaty, there is now a technically advanced alternative available, with differences highlighted.
The bulky Part III of the Constitution, The policies and functioning of the Union, largely corresponding to the TFEU we are studying, has just been launched side by side with the Lisbon Treaty provisions.
This commendable work of an Anonymous compiler is of great service for everyone interested in the latest EU treaty developments. Instead of anonymity he or she should get public recognition. Go to Constitreaty:
http://www.constitreaty.com
***
Article 22b TFEU (ToL), after renumbering Article 27 TFEU, like its predecessors, offers a ‘safety valve’, when proposals to achieve the internal market leading to fiercer competition put too much strain on some (lesser developed) economies. The Commission is given the responsibility to take the effects of its proposals into account.
Basically, the general standards to achieve may be set sufficiently low to allow the less competitive economies to pass muster, or offer transitory periods to achieve higher norms (for instance safety or environmental requirements).
On the other hand, individual derogations (exemptions) are possible according to paragraph 2. These are meant to give one or more member states a grace period to catch up with the others, but they have to fulfil two criteria:
1) They must be temporary.
2) They must cause the internal market the least possible disturbance, namely distort competition as little as possible under the circumstances. In other words, the derogations must pass the test of proportionality.
Within these parameters the Commission and the legislators, the Council and the European Parliament, have wide powers to judge the (political) expediency of the measures.
Ralf Grahn
These softeners, or ‘safety valve’ principles form an integral part of rule making for the single market.
In addition, we get a bird’s eye view of the whole treaty reform process, leading up to the Union policies and internal actions as agreed in the Treaty of Lisbon.
***
In the Treaty of Lisbon (ToL) the intergovernmental conference amended Article 15 of the Treaty establishing the European Community (TEC), which was adopted as Article 22b of the Treaty on the Functioning of the European Union (TFEU). Here is the text of the IGC 2007 (OJ 17.12.2007 C 306/52):
42) An Article 22b shall be inserted, with the wording of Article 15. In the first paragraph, the words ‘during the period of establishment’ shall be replaced by ‘for the establishment’.
***
Even minimal amendments, indeed, especially these, require recourse to the current TEC to make sense (so we turn to the latest consolidated version of the TEU and the TEC in OJ 29.12.2006 C 321 E/49):
Article 15 TEC
When drawing up its proposals with a view to achieving the objectives set out in Article 14, the Commission shall take into account the extent of the effort that certain economies showing differences in development will have to sustain during the period of establishment of the internal market and it may propose appropriate provisions.
If these provisions take the form of derogations, they must be of a temporary nature and must cause the least possible disturbance to the functioning of the common market.
***
We keep in mind that we study Part Three Union policies and internal actions, Title I The internal market, of the TFEU.
Our following task is to consolidate the Article, merging existing contents with amendments, and taking into account that the ToL uses one set of numbering, but indicates a new numbering for future consolidated versions of the treaties (in the tables of eqivalences). The end result should look like this:
Article 22b TFEU (ToL), after renumbering Article 27 TFEU
When drawing up its proposals with a view to achieving the objectives set out in Article 22a [TFEU (ToL), after renumbering Article 26 TFEU], the Commission shall take into account the extent of the effort that certain economies showing differences in development will have to sustain for the establishment of the internal market and it may propose appropriate provisions.
If these provisions take the form of derogations, they must be of a temporary nature and must cause the least possible disturbance to the functioning of the internal market.
***
After spanning the whole distance from the current TEC to the new TFEU, we take a look at two of the individual arches in between, the draft Constitution and the Constitution.
Perhaps a few preliminary general comments are in order. The treaty reform process can be seen as continuous. You can choose to look at the Treaty of Maastricht (Treaty on European Union, TEU) as a first, remarkable stage, which however left unfinished business to which were later added the fact and the prospect of enlargement. These questions were only in part remedied by the Treaty of Amsterdam and the Treaty of Nice, attested to by the fact that the same European Council which agreed on the Nice Treaty felt the need to declare the need for continued reform. With this interpretation we have a more or less continuing reform process from about 1990 until today (2008).
The other point of view would be to see the unsatisfactory Treaty of Nice (signed 2001) as the starting point for a new reform process, with the Declaration of Laeken, the European Convention and its draft Constitution, the IGC 2004 and the Constitutional Treaty, and the retrenchment after failed ratification and the partial relaunch by the IGC 2007 leading to the Lisbon Treaty as the principal stages. Even this shorter history of treaty reform, from December 2000 (Nice) until today (early 2008), presents the picture of seven lean years since no substantial changes have been harvested, namely entered into force (although the accession treaties of 2003 and 2005 should be remembered).
The common denominator has been institutional all along, with decision making structures of the European Union in focus.
The two high points were, in my opinion:
1) The convention method and the work of the first Convention leading to the Charter of Fundamental Rights, and the European Convention (the second one), which produced the draft Constitution. Without being perfect, they embodied more democratic legitimacy than any attempt since the Spinelli draft (1984).
2) The Treaty establishing a Constitution for Europe (2004), where the IGC 2004 achieved some technical improvements and subtracted a few substantial ones, was still remarkable in that it promised substantial reform and a fairly well organised and readable text (although overly long).
Having read countless stories on the ‘failed Constitution’, I think it is time to make a distinction. The Constitutional Treaty was not a failure. Actually, it was as good as it gets at this stage of development, given the strictures of unanimous decision making in a large forum of disparate member states.
Only the ratification process failed, falling victim to the almost impossible requirement to get any meaningful reform approved constitutionally in 27 member states.
The end result is, after the relaunch, the Lisbon Treaty, a sort of ‘Zombie Constitution’, with most of the material contents of the Constitutional Treaty, but without its soul. In addition, the vestments are tattered, riven into a myriad of separate amendments. Only when consolidated versions of the Treaty of Lisbon appear, can a citizen of the EU read and begin to understand the most important document of the European Union since 2004.
The last leg of this ‘scenic route’ takes us back to the policies and internal actions of the European Union.
Because the focus during the whole reform process has been on decision making and institutional issues, the policy areas and internal actions of the EU, including the internal market, have mainly been reorganised and tidied up, without much substantial reform (with the area of freedom, security and justice the most notable exception).
Therefore, the study of the new EU policies ‘de lege ferenda’ is very much the study of existing Community policies ‘de lege lata’, with some new terminology and a few nuances thrown in for good measure. (Calls for a reform of the substantial areas of action have been heard, but the European leaders have been silent lately. A number of member states signalled the need to reform the Euratom Treaty, treated even more like a stepchild or afterthought by various reform conclaves.)
In other words, do not be surprised if you find few surprises, but still there is cause to study the internal EU actions as they are meant to be, and the preceding stages.
***
The European Convention proposed the following in the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/30):
Article III-15 Draft Constitution
When drawing up its proposals with a view to achieving the objectives set out in Article III-14, the Commission shall take into account the extent of the effort that certain economies showing differences in development will have to sustain for the establishment of the internal market and it may propose appropriate measures.
If these measures take the form of derogations, they must be of a temporary nature and must cause the least possible disturbance to the functioning of the internal market.
***
The Treaty establishing a Constitution for Europe merged two Articles of the draft, so technically we compare the text of its fourth paragraph with draft Article III-15, but reading the whole Article III-130 of the Constitutional Treaty reminds us of the context (OJ 16.12.2004 C 310/58):
Article III-130 Constitution
1. The Union shall adopt measures with the aim of establishing or ensuring the functioning of the internal market, in accordance with the relevant provisions of the Constitution.
2. The internal market shall comprise an area without internal frontiers in which the free movement of persons, services, goods and capital is ensured in accordance with the Constitution.
3. The Council, on a proposal from the Commission, shall adopt European regulations and decisions determining the guidelines and conditions necessary to ensure balanced progress in all the sectors concerned.
4. When drawing up its proposals for achieving the objectives set out in paragraphs 1 and 2, the Commission shall take into account the extent of the effort that certain economies showing differences in development will have to sustain for the establishment of the internal market and it may propose appropriate measures.
If these measures take the form of derogations, they must be of a temporary nature and must cause the least possible disturbance to the functioning of the internal market.
***
You are now free to make your own comparison. If you find that the changes from the present TEC to the Lisbon Treaty are of less than mind-boggling proportions, you may be right.
***
For those who want to compare the Treaty of Lisbon with its immediate predecessor, the Constitutional Treaty, there is now a technically advanced alternative available, with differences highlighted.
The bulky Part III of the Constitution, The policies and functioning of the Union, largely corresponding to the TFEU we are studying, has just been launched side by side with the Lisbon Treaty provisions.
This commendable work of an Anonymous compiler is of great service for everyone interested in the latest EU treaty developments. Instead of anonymity he or she should get public recognition. Go to Constitreaty:
http://www.constitreaty.com
***
Article 22b TFEU (ToL), after renumbering Article 27 TFEU, like its predecessors, offers a ‘safety valve’, when proposals to achieve the internal market leading to fiercer competition put too much strain on some (lesser developed) economies. The Commission is given the responsibility to take the effects of its proposals into account.
Basically, the general standards to achieve may be set sufficiently low to allow the less competitive economies to pass muster, or offer transitory periods to achieve higher norms (for instance safety or environmental requirements).
On the other hand, individual derogations (exemptions) are possible according to paragraph 2. These are meant to give one or more member states a grace period to catch up with the others, but they have to fulfil two criteria:
1) They must be temporary.
2) They must cause the internal market the least possible disturbance, namely distort competition as little as possible under the circumstances. In other words, the derogations must pass the test of proportionality.
Within these parameters the Commission and the legislators, the Council and the European Parliament, have wide powers to judge the (political) expediency of the measures.
Ralf Grahn
Wednesday, 12 March 2008
Lisbon Treaty ratification: Finland without Åland Islands?
Eleven local legislators out of 30 would be enough to fail the required two thirds majority in the Åland Islands, but would Finland desist from ratifying the Treaty of Lisbon if the regional parliament (lagtinget) of the autonomous Åland Islands refrained from giving its consent?
Commission actions to pursue bans on ingrained local customs like ‘snus’ (snuff), a powder tobacco product for oral use, allowed in neighbouring Sweden under a derogation (see ECJ C-344/03), and the spring hunt of water fowl (see ECJ C-343/05) have won the European Union few friends in the province.
A glimpse at letters to the editor in the local Åland newspapers would lead one to believe that the province could either leave the European Union and be better off, or that the province could exact any concessions from Finland ahead of ratification.
On the one hand, there is the special status of the internally autonomous and internationally demilitarised Åland Islands (population 26,000), part of Finland, but with derogations concerning the applicability of the EU treaties.
Within its extensive areas of legislative competence, Åland has to give its consent to new EU legislation, which has led to a number of proceedings for late transposition against Finland as the member state responsible.
On the other hand, if Finland abstained from ratifying the Lisbon Treaty following a possible Åland refusal, the country’s own intention to ratify would be thwarted and the ratification process concerning 490 million EU citizens would grind to a halt.
***
The intergovernmental conference (IGC 2007) inserted the following Article 49c on applicability and territorial scope into the Treaty on European Union (TEU), of the amending Treaty of Lisbon (ToL). See OJ 17.12.2007 C 306/40:
60) An Article 49 C shall be inserted:
Article 49c TEU (ToL), after renumbering Article 52 TEU
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.
***
As we see, the territorial scope of the Treaties is specified more exactly in the Treaty on the Functioning of the European Union (TFEU), where Article 311a(4) [TFEU (ToL), after renumbering Article 355(4) TFEU] would take over the the provision on the Åland Islands of Article 299(5) in the current Treaty on establishing the European Community (TEC). (OJ 17.12.2007 C 306/132):
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.
***
Protocol 2 attached to the 1994 accession treaty spell out the Finnish derogations concerning Åland:
Protocol No 2 on the Åland islands
Taking into account the special status that the Åland islands enjoy under international law, the Treaties on which the European Union is founded shall apply to the Åland islands with the following derogations:
Article 1
The provisions of the EC Treaty shall not preclude the application of the existing provisions in force on 1 January 1994 on the Åland islands on:
- restrictions, on a non-discriminatory basis, on the right of natural persons who do not enjoy hembygdsrätt/kotiseutuoikeus (regional citizenship) in Åland, and for legal persons, to acquire and hold real property on the Åland islands without permission by the competent authorities of the Åland islands;
- restrictions, on a non-discriminatory basis, on the right of establishment and the right to provide services by natural persons who do not enjoy hembygdsrätt/kotiseutuoikeus (regional citizenship) in Åland, or by legal persons without permission by the competent authorities of the Åland islands.
Article 2
(a) The territory of the Åland islands - being considered as a third territory, as defined in Article 3 (1) third indent of Council Directive 77/388/EEC as amended, and as a national territory falling outside the field of application of the excise harmonization directives as defined in Article 2 of Council Directive 92/12/EEC - shall be excluded from the territorial application of the EC provisions in the fields of harmonization of the laws of the Member States on turnover taxes and on excise duties and other forms of indirect taxation. This exemption shall not have any effect on the Community's own resources.
This paragraph shall not apply to the provisions of Council Directive 69/335/EEC, as amended, relating to capital duty.
(b) This derogation is aimed at maintaining a viable local economy in the islands and shall not have any negative effects on the interests of the Union nor on its common policies. If the Commission considers that the provisions in paragraph (a) are no longer justified, particularly in terms of fair competition or own resources, it shall submit appropriate proposals to the Council, which shall act in accordance with the pertinent articles of the EC Treaty.
Article 3
The Republic of Finland shall ensure that the same treatment applies to all natural and legal persons of the Member States in the Åland islands.
***
In other words, there are restrictions on EU citizens’ chances to buy property, to establish a business and to provide services in the province, because permissions are required. These restrictions apply to Finnish nationals as well (non-discriminatory).
In VAT matters Åland is a ‘third country’.
***
In practice, Åland has excellent opportunities to voice its opinion, during preparation of EU matters within the government from civil servants’ committees to political decision making, including the possibility to send its plead its case in the all-important EU committee of the cabinet. I
In the parliament including Åland has one representative (out of 200, despite its small population), and this MP sits on the important EU committee of the parliament.
Åland has a watchdog attached to the Finnish EU Council representation, and thus direct contact with intergovernmental proceedings (and all other matters of concern flowing through the Council).
The province is extensively consulted, but it can not dictate the final decisions of the state, which is responsible for foreign policy in general and as treaty state in relation to the European Union.
It is not easy to see how Åland could achieve much more as a part of Finland and the European Union, taking into account some measure of proportional representation and influence, but a fudge to defuse the situation is a possibility. Leading Finnish politicians have used conciliatory language, without signalling specific concessions.
The former Supreme Court President and ECJ member Leif Sevón has given interviews, where he has outlined the possible outcomes of Åland’s refusal to consent to ratification.
***
When Finland acceded to the European Union, it notified that the treaties apply to Åland in accordance with Protocol No 2 (above).
If Åland rejects the Lisbon Treaty, it is difficult to imagine that Finland would let its own ratification be derailed, although some secessionists seem to think that Finland’s international reputation would be hurt by leaving Åland to its own devices. (Realists may be forgiven for thinking that derailing the ratification process for 490 million Europeans might seem a more worrying aspect for the Finnish political leadership.)
If Åland refused and Finland ratified, a notification on the altered territorial scope would be the probable first official manifestation of the change.
As far as I understand, there are no absolutely watertight rules to follow, if the wording of a treaty does not forsee a later development during the cumbersome ratification process.
In practice, there would probably be a few months of grace between the announcement and the scheduled date for the Lisbon Treaty to enter into force. The situation is resembles the one after Norway withdrew its membership application in 1994.
There would be need for negotiations between Åland and Finland, between Åland and the EU and between Finland and the EU on their future relations. This would then have to be patched together somehow, perhaps in a treaty adaptation and other agreements.
***
When I noticed Mark Mardell’s blog on the subject, I tried to post a comment, but there seemed to be a technical hitch, so the comment was probably left hanging. Therefore I am going to post it here, especially since I saw that the Federal Union blog had also mentioned the Åland problem (as the starting point for a discussion on the consequences of unanimity).
Here is the intended comment for Mardell’s blog:
I don't see Finland playing hardball against the EU, but of certain members of the local Åland parliament (lagtinget), where more than one third of 30 provincial legislators would suffice to scupper ratification (consent) on the behalf of Åland, against Finland.
The opposition is trying to wring concessions out of the Finnish government, although it is hard to see what more Åland could reasonably get (without total independence), being heard at every stage of preparation and legislation in EU affairs.
Two Åland issues, with the province represented by Finland, as the member state responsible, have led to defeat in the ECJ, one on the ban on 'snus' tobacco (where Sweden has a derogation) and the spring hunt for water fowl, both deeply felt local affinities.
Hounding these customs through the courts has made the EU few friends in the islands. A healthy reminder, perhaps, of catchwords like 'diversity', 'subsidiarity' and 'proportionality'.
Ralf Grahn
Commission actions to pursue bans on ingrained local customs like ‘snus’ (snuff), a powder tobacco product for oral use, allowed in neighbouring Sweden under a derogation (see ECJ C-344/03), and the spring hunt of water fowl (see ECJ C-343/05) have won the European Union few friends in the province.
A glimpse at letters to the editor in the local Åland newspapers would lead one to believe that the province could either leave the European Union and be better off, or that the province could exact any concessions from Finland ahead of ratification.
On the one hand, there is the special status of the internally autonomous and internationally demilitarised Åland Islands (population 26,000), part of Finland, but with derogations concerning the applicability of the EU treaties.
Within its extensive areas of legislative competence, Åland has to give its consent to new EU legislation, which has led to a number of proceedings for late transposition against Finland as the member state responsible.
On the other hand, if Finland abstained from ratifying the Lisbon Treaty following a possible Åland refusal, the country’s own intention to ratify would be thwarted and the ratification process concerning 490 million EU citizens would grind to a halt.
***
The intergovernmental conference (IGC 2007) inserted the following Article 49c on applicability and territorial scope into the Treaty on European Union (TEU), of the amending Treaty of Lisbon (ToL). See OJ 17.12.2007 C 306/40:
60) An Article 49 C shall be inserted:
Article 49c TEU (ToL), after renumbering Article 52 TEU
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.
***
As we see, the territorial scope of the Treaties is specified more exactly in the Treaty on the Functioning of the European Union (TFEU), where Article 311a(4) [TFEU (ToL), after renumbering Article 355(4) TFEU] would take over the the provision on the Åland Islands of Article 299(5) in the current Treaty on establishing the European Community (TEC). (OJ 17.12.2007 C 306/132):
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.
***
Protocol 2 attached to the 1994 accession treaty spell out the Finnish derogations concerning Åland:
Protocol No 2 on the Åland islands
Taking into account the special status that the Åland islands enjoy under international law, the Treaties on which the European Union is founded shall apply to the Åland islands with the following derogations:
Article 1
The provisions of the EC Treaty shall not preclude the application of the existing provisions in force on 1 January 1994 on the Åland islands on:
- restrictions, on a non-discriminatory basis, on the right of natural persons who do not enjoy hembygdsrätt/kotiseutuoikeus (regional citizenship) in Åland, and for legal persons, to acquire and hold real property on the Åland islands without permission by the competent authorities of the Åland islands;
- restrictions, on a non-discriminatory basis, on the right of establishment and the right to provide services by natural persons who do not enjoy hembygdsrätt/kotiseutuoikeus (regional citizenship) in Åland, or by legal persons without permission by the competent authorities of the Åland islands.
Article 2
(a) The territory of the Åland islands - being considered as a third territory, as defined in Article 3 (1) third indent of Council Directive 77/388/EEC as amended, and as a national territory falling outside the field of application of the excise harmonization directives as defined in Article 2 of Council Directive 92/12/EEC - shall be excluded from the territorial application of the EC provisions in the fields of harmonization of the laws of the Member States on turnover taxes and on excise duties and other forms of indirect taxation. This exemption shall not have any effect on the Community's own resources.
This paragraph shall not apply to the provisions of Council Directive 69/335/EEC, as amended, relating to capital duty.
(b) This derogation is aimed at maintaining a viable local economy in the islands and shall not have any negative effects on the interests of the Union nor on its common policies. If the Commission considers that the provisions in paragraph (a) are no longer justified, particularly in terms of fair competition or own resources, it shall submit appropriate proposals to the Council, which shall act in accordance with the pertinent articles of the EC Treaty.
Article 3
The Republic of Finland shall ensure that the same treatment applies to all natural and legal persons of the Member States in the Åland islands.
***
In other words, there are restrictions on EU citizens’ chances to buy property, to establish a business and to provide services in the province, because permissions are required. These restrictions apply to Finnish nationals as well (non-discriminatory).
In VAT matters Åland is a ‘third country’.
***
In practice, Åland has excellent opportunities to voice its opinion, during preparation of EU matters within the government from civil servants’ committees to political decision making, including the possibility to send its plead its case in the all-important EU committee of the cabinet. I
In the parliament including Åland has one representative (out of 200, despite its small population), and this MP sits on the important EU committee of the parliament.
Åland has a watchdog attached to the Finnish EU Council representation, and thus direct contact with intergovernmental proceedings (and all other matters of concern flowing through the Council).
The province is extensively consulted, but it can not dictate the final decisions of the state, which is responsible for foreign policy in general and as treaty state in relation to the European Union.
It is not easy to see how Åland could achieve much more as a part of Finland and the European Union, taking into account some measure of proportional representation and influence, but a fudge to defuse the situation is a possibility. Leading Finnish politicians have used conciliatory language, without signalling specific concessions.
The former Supreme Court President and ECJ member Leif Sevón has given interviews, where he has outlined the possible outcomes of Åland’s refusal to consent to ratification.
***
When Finland acceded to the European Union, it notified that the treaties apply to Åland in accordance with Protocol No 2 (above).
If Åland rejects the Lisbon Treaty, it is difficult to imagine that Finland would let its own ratification be derailed, although some secessionists seem to think that Finland’s international reputation would be hurt by leaving Åland to its own devices. (Realists may be forgiven for thinking that derailing the ratification process for 490 million Europeans might seem a more worrying aspect for the Finnish political leadership.)
If Åland refused and Finland ratified, a notification on the altered territorial scope would be the probable first official manifestation of the change.
As far as I understand, there are no absolutely watertight rules to follow, if the wording of a treaty does not forsee a later development during the cumbersome ratification process.
In practice, there would probably be a few months of grace between the announcement and the scheduled date for the Lisbon Treaty to enter into force. The situation is resembles the one after Norway withdrew its membership application in 1994.
There would be need for negotiations between Åland and Finland, between Åland and the EU and between Finland and the EU on their future relations. This would then have to be patched together somehow, perhaps in a treaty adaptation and other agreements.
***
When I noticed Mark Mardell’s blog on the subject, I tried to post a comment, but there seemed to be a technical hitch, so the comment was probably left hanging. Therefore I am going to post it here, especially since I saw that the Federal Union blog had also mentioned the Åland problem (as the starting point for a discussion on the consequences of unanimity).
Here is the intended comment for Mardell’s blog:
I don't see Finland playing hardball against the EU, but of certain members of the local Åland parliament (lagtinget), where more than one third of 30 provincial legislators would suffice to scupper ratification (consent) on the behalf of Åland, against Finland.
The opposition is trying to wring concessions out of the Finnish government, although it is hard to see what more Åland could reasonably get (without total independence), being heard at every stage of preparation and legislation in EU affairs.
Two Åland issues, with the province represented by Finland, as the member state responsible, have led to defeat in the ECJ, one on the ban on 'snus' tobacco (where Sweden has a derogation) and the spring hunt for water fowl, both deeply felt local affinities.
Hounding these customs through the courts has made the EU few friends in the islands. A healthy reminder, perhaps, of catchwords like 'diversity', 'subsidiarity' and 'proportionality'.
Ralf Grahn
EU TFEU: Internal market
Entrepreneurs and businesses may have found little of direct interest in the institutional wrangling over institutional issues of the European Union, except for the realisation that improved workings of the EU provide a better framework for decisions concerning the security of firms and individuals, too.
The Lisbon Treaty preserves and modernises the treaty provisions of more immediate interest to persons who work within the Union, who trade in goods or services within the large free trade area or who invest outside their national borders.
The key concepts are the ‘internal market’ and the ‘four freedoms’.
***
In the Treaty of Lisbon (ToL) the intergovernmental conference (IGC 2007) marked the transition to a new and substantial part of the Treaty establishing the European Community (TEC). Under its new name, the Treaty on the functioning of the European Union (TFEU), sports new headings for the Part and its first Title (OJ 17.12.2007 C 306/52):
39) In the heading of Part Three, the words ‘AND INTERNAL ACTIONS’ shall be inserted after ‘POLICIES’.
INTERNAL MARKET
40) A Title I, with the heading ‘THE INTERNAL MARKET’ shall be inserted at the beginning of Part Three.
41) An Article 22a shall be inserted, with the wording of Article 14. Paragraph 1 shall be replaced by the following:
‘1. The Union shall adopt measures with the aim of establishing or ensuring the functioning of the internal market, in accordance with the relevant provisions of the Treaties.’.
***
In order to understand the intended changes, we go to Part One Principles and the Article being amended, Article 14 TEC (in the latest consolidated version of the TEU and the TEC, OJ 29.12.2006 C 321 E/48-49):
Article 14 TEC
1. The Community shall adopt measures with the aim of progressively establishing the internal market over a period expiring on 31 December 1992, in accordance with the provisions of this Article and of Articles 15, 26, 47(2), 49, 80, 93 and 95 and without prejudice to the other provisions of this Treaty.
2. The internal market shall comprise an area without internal frontiers in which the free movement of goods, persons, services and capital is ensured in accordance with the provisions of this Treaty.
3. The Council, acting by a qualified majority on a proposal from the Commission, shall determine the guidelines and conditions necessary to ensure balanced progress in all the sectors concerned.
***
Our aim is to find out what the amended treaty is supposed to look like. This we do by merging the express and horizontal (points 2(a), 2(b) and 2(d)) amendments with the current text as well as checking the future numbering of the Article:
Part Three Union policies and internal actions
Title I The internal market
Article 22a TFEU (ToL), renumbered Article 26 TFEU
1. The Union shall adopt measures with the aim of establishing or ensuring the functioning of the internal market, in accordance with the relevant provisions of the Treaties.
2. The internal market shall comprise an area without internal frontiers in which the free movement of goods, persons, services and capital is ensured in accordance with the provisions of the Treaties.
3. The Council, on a proposal from the Commission, shall determine the guidelines and conditions necessary to ensure balanced progress in all the sectors concerned.
***
For the sake of easy comparison we take note of the preceding stages of treaty reform. The European Convention, in Part III The policies and functioning of the Union, placed Title III Internal policies and action, Chapter 1 Internal market, Section 1 Establishment of the Internal Market, with Article III-14 (OJ 18.7.2003 C 169/30):
TITLE III
INTERNAL POLICIES AND ACTION
Chapter I
Internal market
Section 1
Establishment of the Internal Market
Article III-14 Draft Constitution
1. The Union shall adopt measures with the aim of establishing the internal market, in accordance with this Article, Article III-15, Article III-26(1) and Articles III-29, III-39, III-62, III-65 and III-143 and without prejudice to the other provisions of the Constitution.
2. The internal market shall comprise an area without internal frontiers in which the free movement of goods, persons, services and capital is ensured in accordance with the Constitution.
3. The Council of Ministers, on a proposal from the Commission, shall adopt European regulations and decisions determining the guidelines and conditions necessary to ensure balanced progress in all the sectors concerned.
***
The IGC 2004 shared this systematic approach, but merged the draft Constitution Articles III-14 and III-15 into one (OJ 16.12.2004 C 310/58):
TITLE III
INTERNAL POLICIES AND ACTION
CHAPTER I
INTERNAL MARKET
SECTION 1
ESTABLISHMENT AND FUNCTIONING OF THE INTERNAL MARKET
Article III-130 Constitution
1. The Union shall adopt measures with the aim of establishing or ensuring the functioning of the internal market, in accordance with the relevant provisions of the Constitution.
2. The internal market shall comprise an area without internal frontiers in which the free movement of persons, services, goods and capital is ensured in accordance with the Constitution.
3. The Council, on a proposal from the Commission, shall adopt European regulations and decisions determining the guidelines and conditions necessary to ensure balanced progress in all the sectors concerned.
4. When drawing up its proposals for achieving the objectives set out in paragraphs 1 and 2, the Commission shall take into account the extent of the effort that certain economies showing differences in development will have to sustain for the establishment of the internal market and it may propose appropriate measures.
If these measures take the form of derogations, they must be of a temporary nature and must cause the least possible disturbance to the functioning of the internal market.
***
The common market turned from a noble aim to an achievable goal when measures based on qualified majority voting became possible after the (initially twelve year) transitory period.
The original ‘common market’ and the later ‘internal market’ are both in use in the TEC (depending on when a provision was born), but according to horizontal amendment 2(g) of the Lisbon Treaty the words ‘common market’ shall be replaced by ‘internal market’ (throughout the Treaties).
The draft Constitution still mentioned the ‘aim of establishing the internal market’, but it relinquished the TEC mention of the target date ’31 December 1992’, linked to the Single European Act (1986).
The Constitution took the draft text one step further by ‘establishing or ensuring the functioning of the internal market’ in paragraph 1. In essence, the Lisbon Treaty adopts this text.
***
The ‘four freedoms’ in paragraph 2 form the core of the internal market, and it is religiously upheld in every version from the current TEC (actually from the Treaty of Rome) to the Lisbon Treaty: The internal market shall comprise an area without internal frontiers in which the free movement of goods, persons, services and capital is ensured in accordance with the provisions of this Treaty (now ‘the Treaties’).
If there is one thing every citizen of the European Union should know about EU law, in addition to the main institutional arrangements, it is the ‘four freedoms’:
The free movement of
Goods
Persons
Services
Capital
The four freedoms were present at the birth of the original EEC Treaty (Rome Treaty), then as the ‘common market’, and given added boost by the Single European Act. The target date of 31 December 1992 was important, but a seamless internal market is a perpetual quest.
The internal market may not work perfectly, and the tens of thousands of pages of secondary legislation may seem like a nightmare, but think of the alternatives.
Fifty years of efforts have brought about unprecedented harmonisation and recognition of standards within the European Community (Union).
The enlargement of the European Economic Community (EEC) of six into a European Community (Union) of 27 member states with the added three members of the European Economic Area (EEA), namely Iceland, Liechtenstein and Norway, has led to the largest and most advanced free trade area of the world.
The ‘tons of EC rules’ (directives) achieve some sort of proportions if you think that you or your firm would have to grapple with 30 different rulebooks.
The attraction of the internal market does not stop at the present EU borders. A few states are officially on course for membership, adapting to the common rules. Then there is a number of prospective applicants pursuing voluntary harmonisation.
Some sort of influence is spread through various cooperation agreements: European Neighbourhood Policy, Mediterranean policy (Barcelona process), and African, Caribbean and Pacific states (APC).
European rules and standards are important enough to merit serious attention from exporters around the world. With existing internal concepts and a common trade policy, the European Union fills the basic requirements to ‘export’ its values in more formal settings, like bilateral and multilateral trade agreements.
Despite its imperfections, the internal market is a global success story, built on the acceptance of supranational rules as means to enhance common prosperity.
***
Since the foundation the specific legal bases for ‘measures’ is given in paragraph 1, someone may wonder what the ‘guidelines and conditions necessary to ensure balanced progress in all the sectors concerned’ in the third paragraph are all about.
Paragraph 3 seems to exist as an option for long term strategies or programmes, which would serve to improve the internal market and the balance between different industrial and service sectors. This would offer the Commission a framework for future preparatory work (but may be satisfactorily covered by existing policy and work programmes).
***
Even if the main thrust is one, essential, part of the internal market – competition – there is reason to take note of the Protocol on the internal market and competition, annexed to the Lisbon Treaty (OJ 17.12.2007 C 306/154):
PROTOCOL
ON THE INTERNAL MARKET AND COMPETITION
THE HIGH CONTRACTING PARTIES,
CONSIDERING that the internal market as set out in Article 2 of the Treaty on European Union includes a system ensuring that competition is not distorted,
HAVE AGREED that:
to this end, the Union shall, if necessary, take action under the provisions of the Treaties, including under Article 308 of the Treaty on the Functioning of the European Union.
This protocol shall be annexed to the Treaty on European Union and to the Treaty on the Functioning of the European Union.
***
An introductory tour of the internal market can start from the EU Single Market web pages. Yes, the Commission seems to prefer the concept ‘single market’. Go to:
http://ec.europa.eu/internal_market/index_en.htm
This is a good starting point for ‘everything’, from the general policy framework to topical headlines.
Ralf Grahn
The Lisbon Treaty preserves and modernises the treaty provisions of more immediate interest to persons who work within the Union, who trade in goods or services within the large free trade area or who invest outside their national borders.
The key concepts are the ‘internal market’ and the ‘four freedoms’.
***
In the Treaty of Lisbon (ToL) the intergovernmental conference (IGC 2007) marked the transition to a new and substantial part of the Treaty establishing the European Community (TEC). Under its new name, the Treaty on the functioning of the European Union (TFEU), sports new headings for the Part and its first Title (OJ 17.12.2007 C 306/52):
39) In the heading of Part Three, the words ‘AND INTERNAL ACTIONS’ shall be inserted after ‘POLICIES’.
INTERNAL MARKET
40) A Title I, with the heading ‘THE INTERNAL MARKET’ shall be inserted at the beginning of Part Three.
41) An Article 22a shall be inserted, with the wording of Article 14. Paragraph 1 shall be replaced by the following:
‘1. The Union shall adopt measures with the aim of establishing or ensuring the functioning of the internal market, in accordance with the relevant provisions of the Treaties.’.
***
In order to understand the intended changes, we go to Part One Principles and the Article being amended, Article 14 TEC (in the latest consolidated version of the TEU and the TEC, OJ 29.12.2006 C 321 E/48-49):
Article 14 TEC
1. The Community shall adopt measures with the aim of progressively establishing the internal market over a period expiring on 31 December 1992, in accordance with the provisions of this Article and of Articles 15, 26, 47(2), 49, 80, 93 and 95 and without prejudice to the other provisions of this Treaty.
2. The internal market shall comprise an area without internal frontiers in which the free movement of goods, persons, services and capital is ensured in accordance with the provisions of this Treaty.
3. The Council, acting by a qualified majority on a proposal from the Commission, shall determine the guidelines and conditions necessary to ensure balanced progress in all the sectors concerned.
***
Our aim is to find out what the amended treaty is supposed to look like. This we do by merging the express and horizontal (points 2(a), 2(b) and 2(d)) amendments with the current text as well as checking the future numbering of the Article:
Part Three Union policies and internal actions
Title I The internal market
Article 22a TFEU (ToL), renumbered Article 26 TFEU
1. The Union shall adopt measures with the aim of establishing or ensuring the functioning of the internal market, in accordance with the relevant provisions of the Treaties.
2. The internal market shall comprise an area without internal frontiers in which the free movement of goods, persons, services and capital is ensured in accordance with the provisions of the Treaties.
3. The Council, on a proposal from the Commission, shall determine the guidelines and conditions necessary to ensure balanced progress in all the sectors concerned.
***
For the sake of easy comparison we take note of the preceding stages of treaty reform. The European Convention, in Part III The policies and functioning of the Union, placed Title III Internal policies and action, Chapter 1 Internal market, Section 1 Establishment of the Internal Market, with Article III-14 (OJ 18.7.2003 C 169/30):
TITLE III
INTERNAL POLICIES AND ACTION
Chapter I
Internal market
Section 1
Establishment of the Internal Market
Article III-14 Draft Constitution
1. The Union shall adopt measures with the aim of establishing the internal market, in accordance with this Article, Article III-15, Article III-26(1) and Articles III-29, III-39, III-62, III-65 and III-143 and without prejudice to the other provisions of the Constitution.
2. The internal market shall comprise an area without internal frontiers in which the free movement of goods, persons, services and capital is ensured in accordance with the Constitution.
3. The Council of Ministers, on a proposal from the Commission, shall adopt European regulations and decisions determining the guidelines and conditions necessary to ensure balanced progress in all the sectors concerned.
***
The IGC 2004 shared this systematic approach, but merged the draft Constitution Articles III-14 and III-15 into one (OJ 16.12.2004 C 310/58):
TITLE III
INTERNAL POLICIES AND ACTION
CHAPTER I
INTERNAL MARKET
SECTION 1
ESTABLISHMENT AND FUNCTIONING OF THE INTERNAL MARKET
Article III-130 Constitution
1. The Union shall adopt measures with the aim of establishing or ensuring the functioning of the internal market, in accordance with the relevant provisions of the Constitution.
2. The internal market shall comprise an area without internal frontiers in which the free movement of persons, services, goods and capital is ensured in accordance with the Constitution.
3. The Council, on a proposal from the Commission, shall adopt European regulations and decisions determining the guidelines and conditions necessary to ensure balanced progress in all the sectors concerned.
4. When drawing up its proposals for achieving the objectives set out in paragraphs 1 and 2, the Commission shall take into account the extent of the effort that certain economies showing differences in development will have to sustain for the establishment of the internal market and it may propose appropriate measures.
If these measures take the form of derogations, they must be of a temporary nature and must cause the least possible disturbance to the functioning of the internal market.
***
The common market turned from a noble aim to an achievable goal when measures based on qualified majority voting became possible after the (initially twelve year) transitory period.
The original ‘common market’ and the later ‘internal market’ are both in use in the TEC (depending on when a provision was born), but according to horizontal amendment 2(g) of the Lisbon Treaty the words ‘common market’ shall be replaced by ‘internal market’ (throughout the Treaties).
The draft Constitution still mentioned the ‘aim of establishing the internal market’, but it relinquished the TEC mention of the target date ’31 December 1992’, linked to the Single European Act (1986).
The Constitution took the draft text one step further by ‘establishing or ensuring the functioning of the internal market’ in paragraph 1. In essence, the Lisbon Treaty adopts this text.
***
The ‘four freedoms’ in paragraph 2 form the core of the internal market, and it is religiously upheld in every version from the current TEC (actually from the Treaty of Rome) to the Lisbon Treaty: The internal market shall comprise an area without internal frontiers in which the free movement of goods, persons, services and capital is ensured in accordance with the provisions of this Treaty (now ‘the Treaties’).
If there is one thing every citizen of the European Union should know about EU law, in addition to the main institutional arrangements, it is the ‘four freedoms’:
The free movement of
Goods
Persons
Services
Capital
The four freedoms were present at the birth of the original EEC Treaty (Rome Treaty), then as the ‘common market’, and given added boost by the Single European Act. The target date of 31 December 1992 was important, but a seamless internal market is a perpetual quest.
The internal market may not work perfectly, and the tens of thousands of pages of secondary legislation may seem like a nightmare, but think of the alternatives.
Fifty years of efforts have brought about unprecedented harmonisation and recognition of standards within the European Community (Union).
The enlargement of the European Economic Community (EEC) of six into a European Community (Union) of 27 member states with the added three members of the European Economic Area (EEA), namely Iceland, Liechtenstein and Norway, has led to the largest and most advanced free trade area of the world.
The ‘tons of EC rules’ (directives) achieve some sort of proportions if you think that you or your firm would have to grapple with 30 different rulebooks.
The attraction of the internal market does not stop at the present EU borders. A few states are officially on course for membership, adapting to the common rules. Then there is a number of prospective applicants pursuing voluntary harmonisation.
Some sort of influence is spread through various cooperation agreements: European Neighbourhood Policy, Mediterranean policy (Barcelona process), and African, Caribbean and Pacific states (APC).
European rules and standards are important enough to merit serious attention from exporters around the world. With existing internal concepts and a common trade policy, the European Union fills the basic requirements to ‘export’ its values in more formal settings, like bilateral and multilateral trade agreements.
Despite its imperfections, the internal market is a global success story, built on the acceptance of supranational rules as means to enhance common prosperity.
***
Since the foundation the specific legal bases for ‘measures’ is given in paragraph 1, someone may wonder what the ‘guidelines and conditions necessary to ensure balanced progress in all the sectors concerned’ in the third paragraph are all about.
Paragraph 3 seems to exist as an option for long term strategies or programmes, which would serve to improve the internal market and the balance between different industrial and service sectors. This would offer the Commission a framework for future preparatory work (but may be satisfactorily covered by existing policy and work programmes).
***
Even if the main thrust is one, essential, part of the internal market – competition – there is reason to take note of the Protocol on the internal market and competition, annexed to the Lisbon Treaty (OJ 17.12.2007 C 306/154):
PROTOCOL
ON THE INTERNAL MARKET AND COMPETITION
THE HIGH CONTRACTING PARTIES,
CONSIDERING that the internal market as set out in Article 2 of the Treaty on European Union includes a system ensuring that competition is not distorted,
HAVE AGREED that:
to this end, the Union shall, if necessary, take action under the provisions of the Treaties, including under Article 308 of the Treaty on the Functioning of the European Union.
This protocol shall be annexed to the Treaty on European Union and to the Treaty on the Functioning of the European Union.
***
An introductory tour of the internal market can start from the EU Single Market web pages. Yes, the Commission seems to prefer the concept ‘single market’. Go to:
http://ec.europa.eu/internal_market/index_en.htm
This is a good starting point for ‘everything’, from the general policy framework to topical headlines.
Ralf Grahn
Tuesday, 11 March 2008
EU TFEU: Reporting and improving citizens’ rights
We conclude our survey of existing and proposed rights for EU citizens by looking at the reporting requirements for the Commission. Under the Lisbon Treaty strengthening our citizenship rights still has to pass the proverbial eye of the needle.
***
In the Treaty of Lisbon (ToL), Part Two Non-discrimination and citzenship, of the amended Treaty establishing the European Community (TEC), renamed the Treaty on the Functioning of the European Union (TFEU), the intergovernmental conference (IGC 2007) made the following change to Article 22 TEC (OJ 17.12.2007 C 306/52):
38) In Article 22, second paragraph, the words ‘the rights laid down in this Part, which it shall recommend to the Member States for adoption in accordance with their respective constitutional requirements’ shall be replaced by ‘the rights listed in Article 17(2). These provisions shall enter into force after their approval by the Member States in accordance with their respective constitutional requirements.’.
***
Still waiting for the Council to confirm that it has relented and now intends to publish the consolidated versions of the Lisbon Treaty, we go to Article 22 TEC, the one to be amended, under Part Two Citizenship (available in the latest consolidation of the TEU and the TEC, OJ 29.12.2006 C 321 E/51):
Article 22 TEC
The Commission shall report to the European Parliament, to the Council and to the Economic and Social Committee every three years on the application of the provisions of this Part. This report shall take account of the development of the Union.
On this basis, and without prejudice to the other provisions of this Treaty, the Council, acting unanimously on a proposal from the Commission and after consulting the European Parliament, may adopt provisions to strengthen or to add to the rights laid down in this Part, which it shall recommend to the Member States for adoption in accordance with their respective constitutional requirements.
***
We now have to insert the express amendment and watch out for changes lurking out there among the horizontal amendments (points 2(b), 3 and 5) and check the annexed Tables of equivalences to arrive at what should be the amended Article as consolidated:
Article 22 TFEU (ToL), after renumbering Article 25 TFEU
The Commission shall report to the European Parliament, to the Council and to the Economic and Social Committee every three years on the application of the provisions of this Part. This report shall take account of the development of the Union.
On this basis, and without prejudice to the other provisions of the Treaties, the Council, acting unanimously in accordance with a special legislative procedure and after obtaining the consent of the European Parliament, may adopt provisions to strengthen or to add to the rights listed in Article 17(2) [TFEU (ToL), renumbered 20(2) TFEU]. These provisions shall enter into force after their approval by the Member States in accordance with their respective constitutional requirements.
***
Arguably, the most remarkable stage of the long reform process generally was the European Convention leading to the draft Treaty establishing a Constitution for Europe. But in Non-discrimination and citizenship under Title II of Part III the Convention was far from radical. The corresponding Article III-13 looked like this (OJ 18.7.2003 C 169/30):
Article III-13 Draft Constitution
The Commission shall report to the European Parliament, to the Council of Ministers and to the Economic and Social Committee every three years on the application of the provisions of Article I-8 and of this Title. This report shall take account of the development of the Union.
On this basis, and without prejudice to the other provisions of the Constitution, a European law or framework law of the Council of Ministers may add to the rights laid down in Article I-8. The Council of Ministers shall act unanimously after obtaining the consent of the European Parliament. The law or framework law concerned shall not enter into force until it is approved by the Member States in accordance with their respective constitutional requirements.
***
The reporting requirement in paragraph 1 may look the same, but the draft Constitution widened the scope, because the Title expanded to encompass non-discrimination. (Article I-8 was the main provision on citizenship.)
Paragraph 2 of the draft Constitution cautiously retained the legal base for improving citizens’ rights, subject to unanimity in the Council and ratification by the member states. The position of the European Parliament was improved, from mere consultation to consent.
***
The IGC 2004, under Title II Non-discrimination and citizenship, followed the wording of the draft with only adaptations of terminology and referral, with ‘On the basis of this report’ perhaps intended to be somewhat more restrictive than ‘On this basis’. See OJ 16.12.2004 C 310/57:
Article III-129 Constitution
The Commission shall report to the European Parliament, to the Council and to the Economic and Social Committee every three years on the application of Article I‑10 and of this Title. This report shall take account of the development of the Union.
On the basis of this report, and without prejudice to the other provisions of the Constitution, a European law or framework law of the Council may add to the rights laid down in Article I-10. The Council shall act unanimously after obtaining the consent of the European Parliament. The law or framework law concerned shall not enter into force until it is approved by the Member States in accordance with their respective constitutional requirements.
***
The Lisbon Treaty took over the substance of the Constitutional Treaty, although it reverted to the TEC's and the draft Constitution’s beginning of paragraph 2, ‘On this basis’, perhaps a subtle indication of the will to mark the Council’s independence in relation to the Commission’s report.
All in all, the citizens’ initiative excepted the developments of EU citizens’ rights are hardly perceptible from the TEC through the draft Constitution and the Constitution to the Lisbon Treaty.
***
Further reading is offered by the latest report by the Commission, the “Fifth Report on Citizenship of the Union (1 May 2004 – 30 June 2007)”, Brussels 15.2.2008, COM (2008) 85 final, and the accompanying Commission Staff Working Document, SEC (2008) 197.
Ralf Grahn
***
In the Treaty of Lisbon (ToL), Part Two Non-discrimination and citzenship, of the amended Treaty establishing the European Community (TEC), renamed the Treaty on the Functioning of the European Union (TFEU), the intergovernmental conference (IGC 2007) made the following change to Article 22 TEC (OJ 17.12.2007 C 306/52):
38) In Article 22, second paragraph, the words ‘the rights laid down in this Part, which it shall recommend to the Member States for adoption in accordance with their respective constitutional requirements’ shall be replaced by ‘the rights listed in Article 17(2). These provisions shall enter into force after their approval by the Member States in accordance with their respective constitutional requirements.’.
***
Still waiting for the Council to confirm that it has relented and now intends to publish the consolidated versions of the Lisbon Treaty, we go to Article 22 TEC, the one to be amended, under Part Two Citizenship (available in the latest consolidation of the TEU and the TEC, OJ 29.12.2006 C 321 E/51):
Article 22 TEC
The Commission shall report to the European Parliament, to the Council and to the Economic and Social Committee every three years on the application of the provisions of this Part. This report shall take account of the development of the Union.
On this basis, and without prejudice to the other provisions of this Treaty, the Council, acting unanimously on a proposal from the Commission and after consulting the European Parliament, may adopt provisions to strengthen or to add to the rights laid down in this Part, which it shall recommend to the Member States for adoption in accordance with their respective constitutional requirements.
***
We now have to insert the express amendment and watch out for changes lurking out there among the horizontal amendments (points 2(b), 3 and 5) and check the annexed Tables of equivalences to arrive at what should be the amended Article as consolidated:
Article 22 TFEU (ToL), after renumbering Article 25 TFEU
The Commission shall report to the European Parliament, to the Council and to the Economic and Social Committee every three years on the application of the provisions of this Part. This report shall take account of the development of the Union.
On this basis, and without prejudice to the other provisions of the Treaties, the Council, acting unanimously in accordance with a special legislative procedure and after obtaining the consent of the European Parliament, may adopt provisions to strengthen or to add to the rights listed in Article 17(2) [TFEU (ToL), renumbered 20(2) TFEU]. These provisions shall enter into force after their approval by the Member States in accordance with their respective constitutional requirements.
***
Arguably, the most remarkable stage of the long reform process generally was the European Convention leading to the draft Treaty establishing a Constitution for Europe. But in Non-discrimination and citizenship under Title II of Part III the Convention was far from radical. The corresponding Article III-13 looked like this (OJ 18.7.2003 C 169/30):
Article III-13 Draft Constitution
The Commission shall report to the European Parliament, to the Council of Ministers and to the Economic and Social Committee every three years on the application of the provisions of Article I-8 and of this Title. This report shall take account of the development of the Union.
On this basis, and without prejudice to the other provisions of the Constitution, a European law or framework law of the Council of Ministers may add to the rights laid down in Article I-8. The Council of Ministers shall act unanimously after obtaining the consent of the European Parliament. The law or framework law concerned shall not enter into force until it is approved by the Member States in accordance with their respective constitutional requirements.
***
The reporting requirement in paragraph 1 may look the same, but the draft Constitution widened the scope, because the Title expanded to encompass non-discrimination. (Article I-8 was the main provision on citizenship.)
Paragraph 2 of the draft Constitution cautiously retained the legal base for improving citizens’ rights, subject to unanimity in the Council and ratification by the member states. The position of the European Parliament was improved, from mere consultation to consent.
***
The IGC 2004, under Title II Non-discrimination and citizenship, followed the wording of the draft with only adaptations of terminology and referral, with ‘On the basis of this report’ perhaps intended to be somewhat more restrictive than ‘On this basis’. See OJ 16.12.2004 C 310/57:
Article III-129 Constitution
The Commission shall report to the European Parliament, to the Council and to the Economic and Social Committee every three years on the application of Article I‑10 and of this Title. This report shall take account of the development of the Union.
On the basis of this report, and without prejudice to the other provisions of the Constitution, a European law or framework law of the Council may add to the rights laid down in Article I-10. The Council shall act unanimously after obtaining the consent of the European Parliament. The law or framework law concerned shall not enter into force until it is approved by the Member States in accordance with their respective constitutional requirements.
***
The Lisbon Treaty took over the substance of the Constitutional Treaty, although it reverted to the TEC's and the draft Constitution’s beginning of paragraph 2, ‘On this basis’, perhaps a subtle indication of the will to mark the Council’s independence in relation to the Commission’s report.
All in all, the citizens’ initiative excepted the developments of EU citizens’ rights are hardly perceptible from the TEC through the draft Constitution and the Constitution to the Lisbon Treaty.
***
Further reading is offered by the latest report by the Commission, the “Fifth Report on Citizenship of the Union (1 May 2004 – 30 June 2007)”, Brussels 15.2.2008, COM (2008) 85 final, and the accompanying Commission Staff Working Document, SEC (2008) 197.
Ralf Grahn
Monday, 10 March 2008
EU TFEU: Citizens’ initiative and petitions
The citizens’ initiative is one of the novelties of the Treaty of Lisbon, opening up a channel for participation. Today, we look at the legal base, which allows more exact conditions to be set (secondary legislation).
The directly elected European Parliament continues to receive petitions from citizens in matters which affect them directly.
Complaints concerning maladministration can be addressed to the Ombudsman.
In these and in other matters we have the right to address the institutions of the European Union in the treaty language of our choice, and to receive an answer in the same language.
***
In Part Two Non-discrimination and citizenship, the Treaty of Lisbon (ToL) adds a new first paragraph to Article 21 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 306/52:
37) In Article 21, the following new first paragraph shall be inserted:
‘The European Parliament and the Council, acting by means of regulations in accordance with
the ordinary legislative procedure, shall adopt the provisions for the procedures and conditions
required for a citizens' initiative within the meaning of Article 8 B of the Treaty on European
Union, including the minimum number of Member States from which such citizens must
come.’.
***
The current Article 21 TEC has the following contents (in the latest consolidated version of the TEU and the TEC in OJ 29.12.2006 C 321 E/50-51):
Article 21 TEC
Every citizen of the Union shall have the right to petition the European Parliament in accordance with Article 194.
Every citizen of the Union may apply to the Ombudsman established in accordance with Article 195.
Every citizen of the Union may write to any of the institutions or bodies referred to in this Article or in Article 7 in one of the languages mentioned in Article 314 and have an answer in the same language.
***
The Lisbon Treaty version of Article 21 looks easy to consolidate, but there are three numbers for each amended Article and every Article it refers to, if we want to know ‘everything’. Through the horizontal amendment 2(f) ‘institutions and bodies’ widens to ‘institutions, bodies, offices or agencies’ in the now fourth paragraph, and horizontal amendment 8 regards the Article references in this paragraph:
Article 21 TFEU (ToL), after renumbering Article 24 TFEU
The European Parliament and the Council, acting by means of regulations in accordance with
the ordinary legislative procedure, shall adopt the provisions for the procedures and conditions
required for a citizens' initiative within the meaning of Article 8 B [renumbered Article 11 TEU] of the Treaty on European Union, including the minimum number of Member States from which such citizens must come.
Every citizen of the Union shall have the right to petition the European Parliament in accordance with Article 194 [TEC and TFEU (ToL), renumbered Article 227 TFEU].
Every citizen of the Union may apply to the Ombudsman established in accordance with Article 195 [TEC and TFEU (ToL), renumbered Article 228 TFEU].
Every citizen of the Union may write to any of the institutions, bodies, offices or agencies referred to in this Article or in Article 9 of the Treaty of European Union [repealed Article 7 TEC, replaced, in substance, by Article 9 TEU, renumbered Article 13 TEU] in one of the languages mentioned in Article 53(1) of the Treaty on European Union [repealed Article 314 TEC, replaced in substance by Article 53(1) TEU, renumbered Article 55(1) TEU] and have an answer in the same language.
***
The substance of an EU citizen’s right to petition the European Parliament, to apply to the Ombudsman and to correspond with the EU institutions in one of the treaty languages is preserved.
You can look for relevant treaty provisions and you can check the Charter of Fundamental Rights of the European Union where these rules are usually mirrored (OJ 14.12.2007 C 303/10):
Right to good administration (Article 41)
Right of access to documents (Article 42)
European Ombudsman (Article 43)
Right to petition (Article 44)
***
Since the citizens’ initiative is the novelty, we are going to follow it more closely.
The new paragraph 1 introduces the legal base for regulations on the modalities for a citizens’ initiative. The ordinary legislative procedure is used.
***
We look at the previous stages concerning the citizens’ initiative.
The European Convention proposed the following new Article I-46(4) of the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/20):
Article I-46(4) Draft Constitution
4. No less than one million citizens coming from a significant number of Member States may invite the Commission to submit any appropriate proposal on matters where citizens consider that a legal act of the Union is required for the purpose of implementing the Constitution. A European law shall determine the provisions for the specific procedures and conditions required for such a citizens' initiative.
***
This innovation was agreed on and modified by the IGC 2004, and it became part of the Treaty establishing a Constitution for Europe (OJ 16.12.2004 C 310/35):
Article I-47(4) Constitution
4. Not less than one million citizens who are nationals of a significant number of Member States may take the initiative of inviting the Commission, within the framework of its powers, to submit any appropriate proposal on matters where citizens consider that a legal act of the Union is required for the purpose of implementing the Constitution. European laws shall determine the provisions for the procedures and conditions required for such a citizens' initiative, including the minimum number of Member States from which such citizens must come.
***
The IGC 2004 seems to have made it still clearer that only ‘Community’ legislation qualifies, thereby leaving politically interesting questions pertaining to treaty reform and intergovernmental areas of cooperation outside the scope of admissible citizens’ initiatives.
The minimum number of initiators’ member states was specifically mentioned as one of the conditions needing provisions.
***
The IGC 2007 took over most of the substance of the Constitution text in Article 8b(4) TEU (ToL), renumbered Article 11(4) TEU, but left it to Article 21 TFEU (ToL), renumbered Article 24 TFEU, to provide the legal base for procedures and conditions.
***
Now for some subjective views:
The citizens’ initiative has been hailed as an achievement in the context of participatory democracy at European Union level. On the other hand, it has been criticized because it only invites the European Commission to submit any proposal as a result.
My preliminary thoughts on the citizens’ initiative is that the Lisbon Treaty introduces a nice sounding ‘democratic’ reform, but that the key question is that the treaty has been drafted to exclude all but the old ‘Community’ areas (first pillar; TFEU).
We can, of course, try to envision areas where sizable lobby groups like trade unions or farmers, perhaps even environmentalists or campaigners against nuclear power might muster the necessary numbers and pan-EU appeal to demand legislation within the Commission’s powers of proposal. It is possible that some questions may give rise to enough passions for ‘ad hoc’ reform coalitions to be formed, if the conditions to be set are lenient.
But the big political questions about the future of the European project seem to have been left by the member states to the member states, not the people.
Treaty reform or dissolution of the EU, as well as foreign, security and defence policy are outside the scope of admissible citizens’ initiatives.
It is therefore possible that this participatory innovation will lead to frustration, when potential campaigners, including the campaigners for the citizens’ initiative itself, are confronted with the restrictions.
Two examples:
If I understand correctly, even politically interesting ‘details’ like the ‘One seat campaign’ would have proven to be inadmissible under the rules to be crafted, since the seats of the institutions along with a myriad of questions have been agreed intergovernmentally, and changing the official seat of the European Parliament would require a unanimous decision at treaty level to change the protocol.
The objective of the ‘Who do I call campaign’ could succeed if the European Council had a unilateral change of heart to enhance democratic legitimacy within the European Union, but a mandatory provision to that effect would require a treaty amendment, again outside the powers of the Commission.
***
A Room of One’s Own is still a distant dream. The citizen of the EU has been given a playpen (an ‘enclosure in which a baby or a young child may play safely’).
Ralf Grahn
The directly elected European Parliament continues to receive petitions from citizens in matters which affect them directly.
Complaints concerning maladministration can be addressed to the Ombudsman.
In these and in other matters we have the right to address the institutions of the European Union in the treaty language of our choice, and to receive an answer in the same language.
***
In Part Two Non-discrimination and citizenship, the Treaty of Lisbon (ToL) adds a new first paragraph to Article 21 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 306/52:
37) In Article 21, the following new first paragraph shall be inserted:
‘The European Parliament and the Council, acting by means of regulations in accordance with
the ordinary legislative procedure, shall adopt the provisions for the procedures and conditions
required for a citizens' initiative within the meaning of Article 8 B of the Treaty on European
Union, including the minimum number of Member States from which such citizens must
come.’.
***
The current Article 21 TEC has the following contents (in the latest consolidated version of the TEU and the TEC in OJ 29.12.2006 C 321 E/50-51):
Article 21 TEC
Every citizen of the Union shall have the right to petition the European Parliament in accordance with Article 194.
Every citizen of the Union may apply to the Ombudsman established in accordance with Article 195.
Every citizen of the Union may write to any of the institutions or bodies referred to in this Article or in Article 7 in one of the languages mentioned in Article 314 and have an answer in the same language.
***
The Lisbon Treaty version of Article 21 looks easy to consolidate, but there are three numbers for each amended Article and every Article it refers to, if we want to know ‘everything’. Through the horizontal amendment 2(f) ‘institutions and bodies’ widens to ‘institutions, bodies, offices or agencies’ in the now fourth paragraph, and horizontal amendment 8 regards the Article references in this paragraph:
Article 21 TFEU (ToL), after renumbering Article 24 TFEU
The European Parliament and the Council, acting by means of regulations in accordance with
the ordinary legislative procedure, shall adopt the provisions for the procedures and conditions
required for a citizens' initiative within the meaning of Article 8 B [renumbered Article 11 TEU] of the Treaty on European Union, including the minimum number of Member States from which such citizens must come.
Every citizen of the Union shall have the right to petition the European Parliament in accordance with Article 194 [TEC and TFEU (ToL), renumbered Article 227 TFEU].
Every citizen of the Union may apply to the Ombudsman established in accordance with Article 195 [TEC and TFEU (ToL), renumbered Article 228 TFEU].
Every citizen of the Union may write to any of the institutions, bodies, offices or agencies referred to in this Article or in Article 9 of the Treaty of European Union [repealed Article 7 TEC, replaced, in substance, by Article 9 TEU, renumbered Article 13 TEU] in one of the languages mentioned in Article 53(1) of the Treaty on European Union [repealed Article 314 TEC, replaced in substance by Article 53(1) TEU, renumbered Article 55(1) TEU] and have an answer in the same language.
***
The substance of an EU citizen’s right to petition the European Parliament, to apply to the Ombudsman and to correspond with the EU institutions in one of the treaty languages is preserved.
You can look for relevant treaty provisions and you can check the Charter of Fundamental Rights of the European Union where these rules are usually mirrored (OJ 14.12.2007 C 303/10):
Right to good administration (Article 41)
Right of access to documents (Article 42)
European Ombudsman (Article 43)
Right to petition (Article 44)
***
Since the citizens’ initiative is the novelty, we are going to follow it more closely.
The new paragraph 1 introduces the legal base for regulations on the modalities for a citizens’ initiative. The ordinary legislative procedure is used.
***
We look at the previous stages concerning the citizens’ initiative.
The European Convention proposed the following new Article I-46(4) of the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/20):
Article I-46(4) Draft Constitution
4. No less than one million citizens coming from a significant number of Member States may invite the Commission to submit any appropriate proposal on matters where citizens consider that a legal act of the Union is required for the purpose of implementing the Constitution. A European law shall determine the provisions for the specific procedures and conditions required for such a citizens' initiative.
***
This innovation was agreed on and modified by the IGC 2004, and it became part of the Treaty establishing a Constitution for Europe (OJ 16.12.2004 C 310/35):
Article I-47(4) Constitution
4. Not less than one million citizens who are nationals of a significant number of Member States may take the initiative of inviting the Commission, within the framework of its powers, to submit any appropriate proposal on matters where citizens consider that a legal act of the Union is required for the purpose of implementing the Constitution. European laws shall determine the provisions for the procedures and conditions required for such a citizens' initiative, including the minimum number of Member States from which such citizens must come.
***
The IGC 2004 seems to have made it still clearer that only ‘Community’ legislation qualifies, thereby leaving politically interesting questions pertaining to treaty reform and intergovernmental areas of cooperation outside the scope of admissible citizens’ initiatives.
The minimum number of initiators’ member states was specifically mentioned as one of the conditions needing provisions.
***
The IGC 2007 took over most of the substance of the Constitution text in Article 8b(4) TEU (ToL), renumbered Article 11(4) TEU, but left it to Article 21 TFEU (ToL), renumbered Article 24 TFEU, to provide the legal base for procedures and conditions.
***
Now for some subjective views:
The citizens’ initiative has been hailed as an achievement in the context of participatory democracy at European Union level. On the other hand, it has been criticized because it only invites the European Commission to submit any proposal as a result.
My preliminary thoughts on the citizens’ initiative is that the Lisbon Treaty introduces a nice sounding ‘democratic’ reform, but that the key question is that the treaty has been drafted to exclude all but the old ‘Community’ areas (first pillar; TFEU).
We can, of course, try to envision areas where sizable lobby groups like trade unions or farmers, perhaps even environmentalists or campaigners against nuclear power might muster the necessary numbers and pan-EU appeal to demand legislation within the Commission’s powers of proposal. It is possible that some questions may give rise to enough passions for ‘ad hoc’ reform coalitions to be formed, if the conditions to be set are lenient.
But the big political questions about the future of the European project seem to have been left by the member states to the member states, not the people.
Treaty reform or dissolution of the EU, as well as foreign, security and defence policy are outside the scope of admissible citizens’ initiatives.
It is therefore possible that this participatory innovation will lead to frustration, when potential campaigners, including the campaigners for the citizens’ initiative itself, are confronted with the restrictions.
Two examples:
If I understand correctly, even politically interesting ‘details’ like the ‘One seat campaign’ would have proven to be inadmissible under the rules to be crafted, since the seats of the institutions along with a myriad of questions have been agreed intergovernmentally, and changing the official seat of the European Parliament would require a unanimous decision at treaty level to change the protocol.
The objective of the ‘Who do I call campaign’ could succeed if the European Council had a unilateral change of heart to enhance democratic legitimacy within the European Union, but a mandatory provision to that effect would require a treaty amendment, again outside the powers of the Commission.
***
A Room of One’s Own is still a distant dream. The citizen of the EU has been given a playpen (an ‘enclosure in which a baby or a young child may play safely’).
Ralf Grahn
Sunday, 9 March 2008
EU TFEU: Diplomatic or consular protection
Think of yourself in a faraway country, where your home country is unrepresented, if your companion dies, you are in a serious accident or fall seriously ill, or you are (wrongly) arrested or detained, or you are mugged or raped, or your money and passport are stolen and you lack the means to return home.
The Maastricht Treaty (1992) promised damsels and other EU citizens in distress in third countries diplomatic or consular protection by another member state’s diplomatic or consular authorities, if their own country is not represented where the calamities occurred.
But even after the Amsterdam and Nice revisions, the Treaty on European Union leaves the practicalities in the hands of the member state governments ‘among themselves’, without offering the EU any powers.
The Asian tsunami and the war in Lebanon have served as reminders that not only individual misfortunes, but large disasters can put considerable groups of EU citizens at risk.
***
The intergovernmental conference (IGC 2007) decided to amend Article 20 of the Treaty establishing the European Community (TEC), and the Treaty of Lisbon (ToL) changed the name of the treaty to become the Treaty on the Functioning of the European Union (TFEU). See OJ 17.12.2007 C 306/52:
36) In Article 20, the words ‘establish the necessary rules among themselves and’ shall be replaced by ‘adopt the necessary provisions and’. The following new paragraph shall be added:
‘The Council, acting in accordance with a special legislative procedure and after consulting the European Parliament, may adopt directives establishing the coordination and cooperation measures necessary to facilitate such protection.’.
***
The current Article 20 TEC is found in the latest consolidated version of TEU and the TEC, in OJ 29.12.2006 C 321/50:
Article 20 TEC
Every citizen of the Union shall, in the territory of a third country in which the Member State of
which he is a national is not represented, be entitled to protection by the diplomatic or consular
authorities of any Member State, on the same conditions as the nationals of that State. Member
States shall establish the necessary rules among themselves and start the international negotiations required to secure this protection.
***
The consolidated Lisbon Treaty version of Article 20 should look like this, in Part Two Non-discrimination and citizenship:
Article 20 TFEU (ToL), after renumbering Article 23 TFEU
Every citizen of the Union shall, in the territory of a third country in which the Member State of
which he is a national is not represented, be entitled to protection by the diplomatic or consular
authorities of any Member State, on the same conditions as the nationals of that State. Member
States shall adopt the necessary provisions and start the international negotiations required to secure this protection.
The Council, acting in accordance with a special legislative procedure and after consulting the European Parliament, may adopt directives establishing the coordination and cooperation measures necessary to facilitate such protection.
***
How does the Lisbon Treaty look compared to the preceding draft Treaty establishing a Constitution for Europe? The European Convention proposed (OJ 18.7.2003 C 169/30):
Article III-11 Draft Constitution
Member States shall adopt the necessary provisions to secure diplomatic and consular protection of citizens of the Union in third countries, as referred to in Article I-8.
A European law of the Council of Ministers may establish the measures necessary to facilitate such protection. The Council of Ministers shall act after consulting the European Parliament.
***
The following stage was the IGC 2004 leading to the Treaty establishing a Constitution for Europe (OJ 16.12.2004 C 310/57):
Article III-127 Constitution
Member States shall adopt the necessary provisions to secure diplomatic and consular protection of citizens of the Union in third countries, as referred to in Article I-10(2)(c).
Member States shall commence the international negotiations required to secure this protection.
A European law of the Council may establish the measures necessary to facilitate such protection. The Council shall act after consulting the European Parliament.
***
Article 20 TEC left the tasks of establishing rules and negotiating internationally to the member states (bilaterally). The draft Constitution offered the opportunity to establish EU measures to facilitate protection for Union citizens.
The Constitutional Treaty added paragraph 2, which reinserted the international negotiations to be conducted by the member states.
The Lisbon Treaty adds the words ‘coordination and cooperation’ measures to limit the scope compared to the Constitution of the legal base for directives to be adopted by the Council, in accordance with the IGC 2007 Mandate, which said (point 19e): In Article 20 (diplomatic and consular protection), as amended in the 2004 IGC, the legal basis will be amended so as to provide in this field for adoption of directives establishing coordination and cooperation measures.
***
From an EU citizen’s point of view, diplomatic (state to state action) and consular protection (individual assistance) illustrate the ‘achievements’ of pure intergovernmental cooperation between sovereign nation states. It took the member states three years from the signing of the Treaty of Maastricht to arrive at a common decision:
95/553/EC: Decision of the Representatives of the Governments of the Member States meeting within the Council of 19 December 1995 regarding protection for citizens of the European Union by diplomatic and consular representations
The one page decision seems as anxious to avoid financial assistance, and to guarantee full repayment in cases of extreme distress, as to alleviate suffering.
This international agreement then had to be ratified by the member states, entering into force in 2002, about ten years from the signing of the Maastricht Treaty.
***
The member states have managed to agree on another item, namely on a uniform format for an emergency travel document:
96/409/CSFP: Decision of the Representatives of the Governments of the Member States, meeting within the Council of 25 June 1996 on the establishment of an emergency travel document (See the consolidated version from 1.1.2007)
In addition, the member states have agreed on non-binding Guidelines on consular protection of EU citizens in third countries (Council document 10109/06).
***
The Charter of Fundamental Rights of the European Union, a compilation of existing rights, has a Title V Citizens’ rights, where the following are mentioned:
Article 39 Right to vote and to stand as a candidate at elections to the European Parliament
Article 40 Right to vote and to stand as a candidate at municipal elections
Article 41 Right to good administration
Article 42 Right of access to documents
Article 43 European Ombudsman
Article 44 Right to petition
Article 45 Freedom of movement and of residence
Article 46 Diplomatic and consular protection
***
Diplomatic and consular protection is today’s subject, so here is the Article in question (OJ 14.12.2007 C 303/12):
Article 46 Charter
Diplomatic and consular protection
Every citizen of the Union shall, in the territory of a third country in which the Member State of which he or she is a national is not represented, be entitled to protection by the diplomatic or consular authorities of any Member State, on the same conditions as the nationals of that Member State.
***
The Explanations relating to the Charter of Fundamental Rights deal briefly with Article 46 (OJ 14.12.2007 C 303/29):
Explanation on Article 46 — Diplomatic and consular protection
The right guaranteed in this Article is the right guaranteed by Article 20 of the Treaty on the Functioning of the European Union (cf. also the legal base in Article 23). In accordance with Article 52(2) of the Charter, it applies under the conditions defined in these two Articles.
***
The Commission has not been impressed by the progress of the member states this far. In 2006 it published a Green Paper, launching a public consultation with a view to strengthening protection of EU citizens:
Diplomatic and consular protection of Union citizens in third countries; Brussels, 28.11.2006; COM (2006) 712 final
At least the European Parliament offered wholehearted support for the Commission’s plans, whereas the member states’ responses were mixed.
In December 2007 the Commission issued an action plan accompanied by a recommendation and two working papers:
Effective consular protection in third countries: the contribution of the European Union – Action Plan 2007 – 2009; Brussels, 5.12.2007, COM (2007) 767 final
The Commission estimated that the number of "unrepresented" EU citizens travelling abroad annually is at least 7 million, and that around 2 million EU expatriates live in a third country where their Member State is not represented, and that these numbers are likely to grow.
The Commission aims to improve information on citizens’ rights, and to take practical steps to improve consular protection. Member states are encouraged to increase protection of family members who are third country nationals, to strive towards common protection standards and to obtain the express consent to EU protection arrangements through bilateral agreements with host states.
Ralf Grahn
The Maastricht Treaty (1992) promised damsels and other EU citizens in distress in third countries diplomatic or consular protection by another member state’s diplomatic or consular authorities, if their own country is not represented where the calamities occurred.
But even after the Amsterdam and Nice revisions, the Treaty on European Union leaves the practicalities in the hands of the member state governments ‘among themselves’, without offering the EU any powers.
The Asian tsunami and the war in Lebanon have served as reminders that not only individual misfortunes, but large disasters can put considerable groups of EU citizens at risk.
***
The intergovernmental conference (IGC 2007) decided to amend Article 20 of the Treaty establishing the European Community (TEC), and the Treaty of Lisbon (ToL) changed the name of the treaty to become the Treaty on the Functioning of the European Union (TFEU). See OJ 17.12.2007 C 306/52:
36) In Article 20, the words ‘establish the necessary rules among themselves and’ shall be replaced by ‘adopt the necessary provisions and’. The following new paragraph shall be added:
‘The Council, acting in accordance with a special legislative procedure and after consulting the European Parliament, may adopt directives establishing the coordination and cooperation measures necessary to facilitate such protection.’.
***
The current Article 20 TEC is found in the latest consolidated version of TEU and the TEC, in OJ 29.12.2006 C 321/50:
Article 20 TEC
Every citizen of the Union shall, in the territory of a third country in which the Member State of
which he is a national is not represented, be entitled to protection by the diplomatic or consular
authorities of any Member State, on the same conditions as the nationals of that State. Member
States shall establish the necessary rules among themselves and start the international negotiations required to secure this protection.
***
The consolidated Lisbon Treaty version of Article 20 should look like this, in Part Two Non-discrimination and citizenship:
Article 20 TFEU (ToL), after renumbering Article 23 TFEU
Every citizen of the Union shall, in the territory of a third country in which the Member State of
which he is a national is not represented, be entitled to protection by the diplomatic or consular
authorities of any Member State, on the same conditions as the nationals of that State. Member
States shall adopt the necessary provisions and start the international negotiations required to secure this protection.
The Council, acting in accordance with a special legislative procedure and after consulting the European Parliament, may adopt directives establishing the coordination and cooperation measures necessary to facilitate such protection.
***
How does the Lisbon Treaty look compared to the preceding draft Treaty establishing a Constitution for Europe? The European Convention proposed (OJ 18.7.2003 C 169/30):
Article III-11 Draft Constitution
Member States shall adopt the necessary provisions to secure diplomatic and consular protection of citizens of the Union in third countries, as referred to in Article I-8.
A European law of the Council of Ministers may establish the measures necessary to facilitate such protection. The Council of Ministers shall act after consulting the European Parliament.
***
The following stage was the IGC 2004 leading to the Treaty establishing a Constitution for Europe (OJ 16.12.2004 C 310/57):
Article III-127 Constitution
Member States shall adopt the necessary provisions to secure diplomatic and consular protection of citizens of the Union in third countries, as referred to in Article I-10(2)(c).
Member States shall commence the international negotiations required to secure this protection.
A European law of the Council may establish the measures necessary to facilitate such protection. The Council shall act after consulting the European Parliament.
***
Article 20 TEC left the tasks of establishing rules and negotiating internationally to the member states (bilaterally). The draft Constitution offered the opportunity to establish EU measures to facilitate protection for Union citizens.
The Constitutional Treaty added paragraph 2, which reinserted the international negotiations to be conducted by the member states.
The Lisbon Treaty adds the words ‘coordination and cooperation’ measures to limit the scope compared to the Constitution of the legal base for directives to be adopted by the Council, in accordance with the IGC 2007 Mandate, which said (point 19e): In Article 20 (diplomatic and consular protection), as amended in the 2004 IGC, the legal basis will be amended so as to provide in this field for adoption of directives establishing coordination and cooperation measures.
***
From an EU citizen’s point of view, diplomatic (state to state action) and consular protection (individual assistance) illustrate the ‘achievements’ of pure intergovernmental cooperation between sovereign nation states. It took the member states three years from the signing of the Treaty of Maastricht to arrive at a common decision:
95/553/EC: Decision of the Representatives of the Governments of the Member States meeting within the Council of 19 December 1995 regarding protection for citizens of the European Union by diplomatic and consular representations
The one page decision seems as anxious to avoid financial assistance, and to guarantee full repayment in cases of extreme distress, as to alleviate suffering.
This international agreement then had to be ratified by the member states, entering into force in 2002, about ten years from the signing of the Maastricht Treaty.
***
The member states have managed to agree on another item, namely on a uniform format for an emergency travel document:
96/409/CSFP: Decision of the Representatives of the Governments of the Member States, meeting within the Council of 25 June 1996 on the establishment of an emergency travel document (See the consolidated version from 1.1.2007)
In addition, the member states have agreed on non-binding Guidelines on consular protection of EU citizens in third countries (Council document 10109/06).
***
The Charter of Fundamental Rights of the European Union, a compilation of existing rights, has a Title V Citizens’ rights, where the following are mentioned:
Article 39 Right to vote and to stand as a candidate at elections to the European Parliament
Article 40 Right to vote and to stand as a candidate at municipal elections
Article 41 Right to good administration
Article 42 Right of access to documents
Article 43 European Ombudsman
Article 44 Right to petition
Article 45 Freedom of movement and of residence
Article 46 Diplomatic and consular protection
***
Diplomatic and consular protection is today’s subject, so here is the Article in question (OJ 14.12.2007 C 303/12):
Article 46 Charter
Diplomatic and consular protection
Every citizen of the Union shall, in the territory of a third country in which the Member State of which he or she is a national is not represented, be entitled to protection by the diplomatic or consular authorities of any Member State, on the same conditions as the nationals of that Member State.
***
The Explanations relating to the Charter of Fundamental Rights deal briefly with Article 46 (OJ 14.12.2007 C 303/29):
Explanation on Article 46 — Diplomatic and consular protection
The right guaranteed in this Article is the right guaranteed by Article 20 of the Treaty on the Functioning of the European Union (cf. also the legal base in Article 23). In accordance with Article 52(2) of the Charter, it applies under the conditions defined in these two Articles.
***
The Commission has not been impressed by the progress of the member states this far. In 2006 it published a Green Paper, launching a public consultation with a view to strengthening protection of EU citizens:
Diplomatic and consular protection of Union citizens in third countries; Brussels, 28.11.2006; COM (2006) 712 final
At least the European Parliament offered wholehearted support for the Commission’s plans, whereas the member states’ responses were mixed.
In December 2007 the Commission issued an action plan accompanied by a recommendation and two working papers:
Effective consular protection in third countries: the contribution of the European Union – Action Plan 2007 – 2009; Brussels, 5.12.2007, COM (2007) 767 final
The Commission estimated that the number of "unrepresented" EU citizens travelling abroad annually is at least 7 million, and that around 2 million EU expatriates live in a third country where their Member State is not represented, and that these numbers are likely to grow.
The Commission aims to improve information on citizens’ rights, and to take practical steps to improve consular protection. Member states are encouraged to increase protection of family members who are third country nationals, to strive towards common protection standards and to obtain the express consent to EU protection arrangements through bilateral agreements with host states.
Ralf Grahn
Saturday, 8 March 2008
EU TFEU: Citizen’s right to vote
The electoral rights of EU citizens do not evolve as a result of the Treaty of Lisbon, which retains the right to vote in local elections and in elections to the European Parliament in one’s member state of residence, as well as the right to stand as a candidate in these elections.
Regional and national elections are still uncovered by common provisions for EU expats.
***
We notice that the intergovernmental conference (IGC 2007) leaves a gap in the Treaty of Lisbon between point 35 (Article 18 TEC) and point 36 (Article 20 TEC). See OJ 17.12.2007 C 306/51-52.
We discover the missing Article 19 TEC in the Annex Tables of equivalences referred to in Article 5 of the Treaty of Lisbon (OJ 17.12.2007 C 306/206), where we find out that Article 19 TEC remains Article 19 TFEU (ToL), until it is renumbered Article 22 TFEU.
In addition, the IGC humours us by, under horizontal amendments, in point 3 listing specific Articles to be amended in the following way (OJ 17.12.2007 C 306/42):
3) In the following Articles, the words ‘acting unanimously on a proposal from the Commission’
shall be replaced by ‘acting unanimously in accordance with a special legislative procedure’:
— Article 13, renumbered 16 E, first paragraph
— Article 19(1)
— Article 19(2)
— Article 22, second paragraph
— Article 93
— Article 94, renumbered 95
— Article 104(14), second subparagraph
— Article 175(2), first subparagraph
***
After playing IGC style hide and seek, and after coining today’s oxymoron, ‘specific horizontal amendment’, we are ready to take on the current Article 19 TEC (found in the latest consolidated version of the TEU and the TEC, in OJ 29.12.2006 C 321 E/50):
Article 19 TEC
1. Every citizen of the Union residing in a Member State of which he is not a national shall have the right to vote and to stand as a candidate at municipal elections in the Member State in which he resides, under the same conditions as nationals of that State. This right shall be exercised subject to detailed arrangements adopted by the Council, acting unanimously on a proposal from the Commission and after consulting the European Parliament; these arrangements may provide for derogations where warranted by problems specific to a Member State.
2. Without prejudice to Article 190(4) and to the provisions adopted for its implementation, every citizen of the Union residing in a Member State of which he is not a national shall have the right to vote and to stand as a candidate in elections to the European Parliament in the Member State in which he resides, under the same conditions as nationals of that State. This right shall be exercised subject to detailed arrangements adopted by the Council, acting unanimously on a proposal from the Commission and after consulting the European Parliament; these arrangements may provide for derogations where warranted by problems specific to a Member State.
***
The Lisbon Treaty version of Article 19 should look like this:
Article 19 TFEU (ToL), after renumbering Article 22 TFEU
1. Every citizen of the Union residing in a Member State of which he is not a national shall have the right to vote and to stand as a candidate at municipal elections in the Member State in which he resides, under the same conditions as nationals of that State. This right shall be exercised subject to detailed arrangements adopted by the Council, acting unanimously in accordance with a special legislative procedure and after consulting the European Parliament; these arrangements may provide for derogations where warranted by problems specific to a Member State.
2. Without prejudice to Article 190(1) [renumbered Article 223(1)] and to the provisions adopted for its implementation, every citizen of the Union residing in a Member State of which he is not a national shall have the right to vote and to stand as a candidate in elections to the European Parliament in the Member State in which he resides, under the same conditions as nationals of that State. This right shall be exercised subject to detailed arrangements adopted by the Council, acting unanimously in accordance with a special legislative procedure and after consulting the European Parliament; these arrangements may provide for derogations where warranted by problems specific to a Member State.
***
For a look at the intermediary stages leading up to the Treaty of Lisbon, we turn to the draft Treaty establishing a Constitution for Europe, proposed by the European Convention (OJ 18.7.2003 C 169/30):
Article III-10 Draft Constitution
A European law or framework law of the Council of Ministers shall determine the detailed arrangements for exercising the right, referred to in Article I-8, for every Union citizen to vote and to stand as a candidate in municipal elections and elections to the European Parliament in their Member State of residence without being a national of that State. The Council of Ministers shall act unanimously after consulting the European Parliament. These arrangements may provide for derogations where warranted by problems specific to a Member State.
The right to vote and to stand as a candidate in elections to the European Parliament shall be exercised without prejudice to Article III-232(2) and the measures adopted for its implementation.
***
The IGC 2004 took over the proposal in the Treaty establishing a Constitution for Europe almost word for word, with natural changes of the Articles referred to (OJ 16.12.2004 C 310/57):
Article III-126 Constitution
A European law or framework law of the Council shall determine the detailed arrangements for exercising the right, referred to in Article I-10(2)(b), for every citizen of the Union to vote and to stand as a candidate in municipal elections and elections to the European Parliament in his or her Member State of residence without being a national of that State. The Council shall act unanimously after consulting the European Parliament. These arrangements may provide for derogations where warranted by problems specific to a Member State.
The right to vote and to stand as a candidate in elections to the European Parliament shall be exercised without prejudice to Article III-330(1) and the measures adopted for its implementation.
***
We see that the draft Constitution and the Constitutional Treaty used one paragraph to cover both municipal elections and elections to the European Parliament, where the current TEC and the ToL award the different elections their own paragraphs, but nothing changes in substance.
Citizens of the European Union have achieved essential equality with the nationals of their member state of residence at two levels, their municipality and the EU.
***
Equal rights are not all-encompassing, since derogations are possible for certain states. In practice, the only member state to request (a continued) derogation in 2009 is Luxembourg with its high proportion of expats. See:
Report from the Commission to the European Parliament and to the Council on granting a derogation pursuant to Article 19(2) of the EC Treaty, presented under Article 14(3) of Directive 93/109/EC on the right to vote and to stand as a candidate in elections to the European Parliament COM/2007/0846 final
***
National and (where applicable) regional elections are still outside the common arrangements, as are referendums irrespective of level.
For most people electoral rights are the ones that matter, but the active right to stand as a candidate is on offer in municipal and EP level elections.
***
The legal base for the election procedure to the European Parliament is currently in Article 190(4) TEC, proposed to become modified Article 190(1) TFEU (ToL), after renumbering Article 223(1) TFEU.
The European Parliament draws up a proposal, and the Council unanimously lays down the necessary provisions after obtaining the consent of the European Parliament. The provisions have to be ratified by the member states. (See Article 190 TEC and OJ 17.12.2007 C 306/100, point 179.)
***
For the current rules on EP elections, you could start by looking up Council Decision 2002/772/EC, Euratom of 25 June 2002 and 23 September 2002 amending the Act concerning the election of the representatives of the European Parliament by direct universal suffrage, annexed to Decision 76/787/ECSC, EEC, Euratom (OJ 21.10.2002 L 283).
***
With a view to the EP elections of June 2009, the following documents could be mentioned, starting with the report on the latest elections:
Communication from the Commission European elections 2004 – Commission report on the participation of European Union citizens in the Member State of residence (Directive 93/109/EC) and on the electoral arrangements (Decision 76/787/EC as amended by Decision 2002/772/EC, Euratom)
Commission Staff Working document Accompanying document to the Communication from the Commission European elections 2004 - Commission report on the participation of European Union citizens in the Member States of residence (Directive 93/109/EC) and on the electoral arrangements (Decision 76/787/EC as amended by Decision 2002/772/EC) Impact assessment report for a possible amendment of Council Directive 93/109/EC laying down detailed arrangements for exercising the right to vote and stand as a candidate in elections to the European Parliament for citizens of the Union residing in a Member State of which they are not nationals
Proposal for a Council Directive amending Directive 93/109/EC of 6 December 1993 as regards certain detailed arrangements for the exercise of the right to vote and stand as a candidate in elections to the European Parliament for citizens of the Union residing in a Member State of which they are not nationals
***
For the sake of readers with an interest in UK affairs, two unilateral Lisbon Treaty declarations can be mentioned (OJ 17.12.2007 C 306/268):
63. Declaration by the United Kingdom of Great Britain and Northern Ireland on the definition of the term ‘nationals’
In respect of the Treaties and the Treaty establishing the European Atomic Energy Community, and in any of the acts deriving from those Treaties or continued in force by those Treaties, the United Kingdom reiterates the Declaration it made on 31 December 1982 on the definition of the term ‘nationals’ with the exception that the reference to ‘British Dependent Territories Citizens’ shall be read as meaning ‘British overseas territories citizens’.
64. Declaration by the United Kingdom of Great Britain and Northern Ireland on the franchise for elections to the European Parliament
The United Kingdom notes that Article 9 A of the Treaty on European Union and other provisions of the Treaties are not intended to change the basis for the franchise for elections to the European Parliament.
***
The first rules on direct elections to the European Parliament were issued in 1976, and the first directly elected EP commenced work in 1979. The next EP elections are due in June 2009.
If the Treaty of Lisbon is in force at the time, the elections to the European Parliament are to be taken into account in the process of electing the next President of the Commission. This offers the citizens of the European Union the opportunity to influence the choice to one of the top jobs within the EU, since the political parties at the European level are expected to field their candidates for the post.
The ‘Who do I call?’ campaign has seized on the possibility left open by the Lisbon Treaty to merge the offices of Commission and European Council presidents, to enhance the democratic legitimacy of the EU, although Declaration number 6 to indicates that the European leaders would have to change tack, since they still seem have three different office holders in mind (OJ 17.12.2007 C 306/248):
6. Declaration on Article 9 B(5) and (6), Article 9 D(6) and (7) and Article 9 E of the Treaty on European Union
In choosing the persons called upon to hold the offices of President of the European Council, President of the Commission and High Representative of the Union for Foreign Affairs and Security Policy, due account is to be taken of the need to respect the geographical and demographic diversity of the Union and its Member States.
***
Lisbon Treaty Declaration 11 envisions consultations between the European Parliament and the European Council only regarding the President of the European Commission (OJ 17.12.2007 C 306/252):
11. Declaration on Article 9 D(6) and (7) of the Treaty on European Union
The Conference considers that, in accordance with the provisions of the Treaties, the European Parliament and the European Council are jointly responsible for the smooth running of the process leading to the election of the President of the European Commission. Prior to the decision of the European Council, representatives of the European Parliament and of the European Council will thus conduct the necessary consultations in the framework deemed the most appropriate. These consultations will focus on the backgrounds of the candidates for President of the Commission, taking account of the elections to the European Parliament, in accordance with the first subparagraph of Article 9 D(7). The arrangements for such consultations may be determined, in due course, by common accord between the European Parliament and the European Council.
***
EU citizens’ rights in municipal elections are governed by a Directive last amended by Directive 2006/106/EC in 2006, so look for the consolidated version of:
Council Directive 94/80/EC of 19 December 1994 laying down detailed arrangements for the exercise of the right to vote and to stand as a candidate in municipal elections by citizens of the Union residing in a Member State of which they are not nationals
Ralf Grahn
Regional and national elections are still uncovered by common provisions for EU expats.
***
We notice that the intergovernmental conference (IGC 2007) leaves a gap in the Treaty of Lisbon between point 35 (Article 18 TEC) and point 36 (Article 20 TEC). See OJ 17.12.2007 C 306/51-52.
We discover the missing Article 19 TEC in the Annex Tables of equivalences referred to in Article 5 of the Treaty of Lisbon (OJ 17.12.2007 C 306/206), where we find out that Article 19 TEC remains Article 19 TFEU (ToL), until it is renumbered Article 22 TFEU.
In addition, the IGC humours us by, under horizontal amendments, in point 3 listing specific Articles to be amended in the following way (OJ 17.12.2007 C 306/42):
3) In the following Articles, the words ‘acting unanimously on a proposal from the Commission’
shall be replaced by ‘acting unanimously in accordance with a special legislative procedure’:
— Article 13, renumbered 16 E, first paragraph
— Article 19(1)
— Article 19(2)
— Article 22, second paragraph
— Article 93
— Article 94, renumbered 95
— Article 104(14), second subparagraph
— Article 175(2), first subparagraph
***
After playing IGC style hide and seek, and after coining today’s oxymoron, ‘specific horizontal amendment’, we are ready to take on the current Article 19 TEC (found in the latest consolidated version of the TEU and the TEC, in OJ 29.12.2006 C 321 E/50):
Article 19 TEC
1. Every citizen of the Union residing in a Member State of which he is not a national shall have the right to vote and to stand as a candidate at municipal elections in the Member State in which he resides, under the same conditions as nationals of that State. This right shall be exercised subject to detailed arrangements adopted by the Council, acting unanimously on a proposal from the Commission and after consulting the European Parliament; these arrangements may provide for derogations where warranted by problems specific to a Member State.
2. Without prejudice to Article 190(4) and to the provisions adopted for its implementation, every citizen of the Union residing in a Member State of which he is not a national shall have the right to vote and to stand as a candidate in elections to the European Parliament in the Member State in which he resides, under the same conditions as nationals of that State. This right shall be exercised subject to detailed arrangements adopted by the Council, acting unanimously on a proposal from the Commission and after consulting the European Parliament; these arrangements may provide for derogations where warranted by problems specific to a Member State.
***
The Lisbon Treaty version of Article 19 should look like this:
Article 19 TFEU (ToL), after renumbering Article 22 TFEU
1. Every citizen of the Union residing in a Member State of which he is not a national shall have the right to vote and to stand as a candidate at municipal elections in the Member State in which he resides, under the same conditions as nationals of that State. This right shall be exercised subject to detailed arrangements adopted by the Council, acting unanimously in accordance with a special legislative procedure and after consulting the European Parliament; these arrangements may provide for derogations where warranted by problems specific to a Member State.
2. Without prejudice to Article 190(1) [renumbered Article 223(1)] and to the provisions adopted for its implementation, every citizen of the Union residing in a Member State of which he is not a national shall have the right to vote and to stand as a candidate in elections to the European Parliament in the Member State in which he resides, under the same conditions as nationals of that State. This right shall be exercised subject to detailed arrangements adopted by the Council, acting unanimously in accordance with a special legislative procedure and after consulting the European Parliament; these arrangements may provide for derogations where warranted by problems specific to a Member State.
***
For a look at the intermediary stages leading up to the Treaty of Lisbon, we turn to the draft Treaty establishing a Constitution for Europe, proposed by the European Convention (OJ 18.7.2003 C 169/30):
Article III-10 Draft Constitution
A European law or framework law of the Council of Ministers shall determine the detailed arrangements for exercising the right, referred to in Article I-8, for every Union citizen to vote and to stand as a candidate in municipal elections and elections to the European Parliament in their Member State of residence without being a national of that State. The Council of Ministers shall act unanimously after consulting the European Parliament. These arrangements may provide for derogations where warranted by problems specific to a Member State.
The right to vote and to stand as a candidate in elections to the European Parliament shall be exercised without prejudice to Article III-232(2) and the measures adopted for its implementation.
***
The IGC 2004 took over the proposal in the Treaty establishing a Constitution for Europe almost word for word, with natural changes of the Articles referred to (OJ 16.12.2004 C 310/57):
Article III-126 Constitution
A European law or framework law of the Council shall determine the detailed arrangements for exercising the right, referred to in Article I-10(2)(b), for every citizen of the Union to vote and to stand as a candidate in municipal elections and elections to the European Parliament in his or her Member State of residence without being a national of that State. The Council shall act unanimously after consulting the European Parliament. These arrangements may provide for derogations where warranted by problems specific to a Member State.
The right to vote and to stand as a candidate in elections to the European Parliament shall be exercised without prejudice to Article III-330(1) and the measures adopted for its implementation.
***
We see that the draft Constitution and the Constitutional Treaty used one paragraph to cover both municipal elections and elections to the European Parliament, where the current TEC and the ToL award the different elections their own paragraphs, but nothing changes in substance.
Citizens of the European Union have achieved essential equality with the nationals of their member state of residence at two levels, their municipality and the EU.
***
Equal rights are not all-encompassing, since derogations are possible for certain states. In practice, the only member state to request (a continued) derogation in 2009 is Luxembourg with its high proportion of expats. See:
Report from the Commission to the European Parliament and to the Council on granting a derogation pursuant to Article 19(2) of the EC Treaty, presented under Article 14(3) of Directive 93/109/EC on the right to vote and to stand as a candidate in elections to the European Parliament COM/2007/0846 final
***
National and (where applicable) regional elections are still outside the common arrangements, as are referendums irrespective of level.
For most people electoral rights are the ones that matter, but the active right to stand as a candidate is on offer in municipal and EP level elections.
***
The legal base for the election procedure to the European Parliament is currently in Article 190(4) TEC, proposed to become modified Article 190(1) TFEU (ToL), after renumbering Article 223(1) TFEU.
The European Parliament draws up a proposal, and the Council unanimously lays down the necessary provisions after obtaining the consent of the European Parliament. The provisions have to be ratified by the member states. (See Article 190 TEC and OJ 17.12.2007 C 306/100, point 179.)
***
For the current rules on EP elections, you could start by looking up Council Decision 2002/772/EC, Euratom of 25 June 2002 and 23 September 2002 amending the Act concerning the election of the representatives of the European Parliament by direct universal suffrage, annexed to Decision 76/787/ECSC, EEC, Euratom (OJ 21.10.2002 L 283).
***
With a view to the EP elections of June 2009, the following documents could be mentioned, starting with the report on the latest elections:
Communication from the Commission European elections 2004 – Commission report on the participation of European Union citizens in the Member State of residence (Directive 93/109/EC) and on the electoral arrangements (Decision 76/787/EC as amended by Decision 2002/772/EC, Euratom)
Commission Staff Working document Accompanying document to the Communication from the Commission European elections 2004 - Commission report on the participation of European Union citizens in the Member States of residence (Directive 93/109/EC) and on the electoral arrangements (Decision 76/787/EC as amended by Decision 2002/772/EC) Impact assessment report for a possible amendment of Council Directive 93/109/EC laying down detailed arrangements for exercising the right to vote and stand as a candidate in elections to the European Parliament for citizens of the Union residing in a Member State of which they are not nationals
Proposal for a Council Directive amending Directive 93/109/EC of 6 December 1993 as regards certain detailed arrangements for the exercise of the right to vote and stand as a candidate in elections to the European Parliament for citizens of the Union residing in a Member State of which they are not nationals
***
For the sake of readers with an interest in UK affairs, two unilateral Lisbon Treaty declarations can be mentioned (OJ 17.12.2007 C 306/268):
63. Declaration by the United Kingdom of Great Britain and Northern Ireland on the definition of the term ‘nationals’
In respect of the Treaties and the Treaty establishing the European Atomic Energy Community, and in any of the acts deriving from those Treaties or continued in force by those Treaties, the United Kingdom reiterates the Declaration it made on 31 December 1982 on the definition of the term ‘nationals’ with the exception that the reference to ‘British Dependent Territories Citizens’ shall be read as meaning ‘British overseas territories citizens’.
64. Declaration by the United Kingdom of Great Britain and Northern Ireland on the franchise for elections to the European Parliament
The United Kingdom notes that Article 9 A of the Treaty on European Union and other provisions of the Treaties are not intended to change the basis for the franchise for elections to the European Parliament.
***
The first rules on direct elections to the European Parliament were issued in 1976, and the first directly elected EP commenced work in 1979. The next EP elections are due in June 2009.
If the Treaty of Lisbon is in force at the time, the elections to the European Parliament are to be taken into account in the process of electing the next President of the Commission. This offers the citizens of the European Union the opportunity to influence the choice to one of the top jobs within the EU, since the political parties at the European level are expected to field their candidates for the post.
The ‘Who do I call?’ campaign has seized on the possibility left open by the Lisbon Treaty to merge the offices of Commission and European Council presidents, to enhance the democratic legitimacy of the EU, although Declaration number 6 to indicates that the European leaders would have to change tack, since they still seem have three different office holders in mind (OJ 17.12.2007 C 306/248):
6. Declaration on Article 9 B(5) and (6), Article 9 D(6) and (7) and Article 9 E of the Treaty on European Union
In choosing the persons called upon to hold the offices of President of the European Council, President of the Commission and High Representative of the Union for Foreign Affairs and Security Policy, due account is to be taken of the need to respect the geographical and demographic diversity of the Union and its Member States.
***
Lisbon Treaty Declaration 11 envisions consultations between the European Parliament and the European Council only regarding the President of the European Commission (OJ 17.12.2007 C 306/252):
11. Declaration on Article 9 D(6) and (7) of the Treaty on European Union
The Conference considers that, in accordance with the provisions of the Treaties, the European Parliament and the European Council are jointly responsible for the smooth running of the process leading to the election of the President of the European Commission. Prior to the decision of the European Council, representatives of the European Parliament and of the European Council will thus conduct the necessary consultations in the framework deemed the most appropriate. These consultations will focus on the backgrounds of the candidates for President of the Commission, taking account of the elections to the European Parliament, in accordance with the first subparagraph of Article 9 D(7). The arrangements for such consultations may be determined, in due course, by common accord between the European Parliament and the European Council.
***
EU citizens’ rights in municipal elections are governed by a Directive last amended by Directive 2006/106/EC in 2006, so look for the consolidated version of:
Council Directive 94/80/EC of 19 December 1994 laying down detailed arrangements for the exercise of the right to vote and to stand as a candidate in municipal elections by citizens of the Union residing in a Member State of which they are not nationals
Ralf Grahn
Friday, 7 March 2008
TFEU: Citizen’s right to move and reside freely
The EU Law Blog published a post ‘Fifth Commission Report on Citizenship’ on 5 March 2008, with essential links to case law of the Court of Justice and to Commission documents on citizenship of the Union:
http://eulaw.typepad.com/eulawblog/2008/03/fifth-commissio.html
Here, we look at the basic treaty provisions on EU citizenship in the light of the Treaty of Lisbon, offering the reader possibilities to compare the current Treaty establishing the European Community with the intermediary Convention and Constitution stages leading up to the amending Lisbon Treaty.
***
In the Treaty of Lisbon (ToL) the intergovernmental conference (IGC 2007) agreed to change the Treaty establishing the European Community (TEC), which becomes the Treaty on the Functioning of the European Union (TFEU). In the renamed Part Two Non-discrimination and citizenship of the Union, Article 18 is amended as follows (Official Journal, OJ, 17.12.2007 C 306/51):
35) Article 18 shall be amended as follows:
(a) in paragraph 2, the words ‘the Council may adopt’ shall be replaced by ‘the European Parliament and the Council, acting in accordance with the ordinary legislative procedure, may adopt’ and the last sentence shall be deleted;
(b) paragraph 3 shall be replaced by the following:
‘3. For the same purposes as those referred to in paragraph 1 and if the Treaties have not provided the necessary powers, the Council, acting in accordance with a special legislative procedure, may adopt measures concerning social security or social protection. The Council shall act unanimously after consulting the European Parliament.’
***
Since inserting innovations agreed in the 2004 IGC into the Treaty ‘by way of specific modifications in the usual manner’ does not begin to make sense for the normal reader, the following step is to fetch the patient to be operated on, namely retrieve the text of the current provision (in the latest consolidated version of the existing treaties OJ 29.12.2006 C 321 E/49-50):
Article 18 TEC
1. Every citizen of the Union shall have the right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in this Treaty and by the measures adopted to give it effect.
2. If action by the Community should prove necessary to attain this objective and this Treaty has not provided the necessary powers, the Council may adopt provisions with a view to facilitating the exercise of the rights referred to in paragraph 1. The Council shall act in accordance with the procedure referred to in Article 251.
3. Paragraph 2 shall not apply to provisions on passports, identity cards, residence permits or any other such document or to provisions on social security or social protection.
***
Then, the horizontal and the express amendments have to be inserted to arrive at a consolidated version of the Article according to the Lisbon Treaty:
Article 18 TFEU (ToL), renumbered Article 21 TFEU
1. Every citizen of the Union shall have the right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in the Treaties and by the measures adopted to give them effect.
2. If action by the Union should prove necessary to attain this objective and the Treaties have not provided the necessary powers, the European Parliament and the Council, acting in accordance with the ordinary legislative procedure, may adopt provisions with a view to facilitating the exercise of the rights referred to in paragraph 1.
3. For the same purposes as those referred to in paragraph 1 and if the Treaties have not provided the necessary powers, the Council, acting in accordance with a special legislative procedure, may adopt measures concerning social security or social protection. The Council shall act unanimously after consulting the European Parliament.
***
The European Convention, chaired by Valéry Giscard d’Estaing, tabled the following proposal in the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/30):
Article III-9 Draft Constitution
1. If action by the Union should prove necessary to facilitate the exercise of the right, referred to in Article I-8, of every Union citizen to move and reside freely and the Constitution has not provided the necessary powers, European laws or framework laws may establish measures for that purpose.
2. For the same purpose and unless the Constitution has provided for powers of action in this area, measures concerning passports, identity cards, residence permits or any other such document and measures concerning social security or social protection may be laid down by a European law or framework law of the Council of Ministers. The Council of Ministers shall act unanimously after consulting the European Parliament.
***
The IGC 2004 agreed on the following text in the Treaty establishing a Constitution for Europe (OJ 16.12.2004 C 310/56-57):
Article III-125 Constitution
1. If action by the Union should prove necessary to facilitate the exercise of the right, referred to in Article I-10(2)(a), of every citizen of the Union to move and reside freely and the Constitution has not provided the necessary powers, European laws or framework laws may establish measures for that purpose.
2. For the same purposes as those referred to in paragraph 1 and if the Constitution has not provided the necessary powers, a European law or framework law of the Council may establish measures concerning passports, identity cards, residence permits or any other such document and measures concerning social security or social protection. The Council shall act unanimously after consulting the European Parliament.
***
For a short description of the proposed Article, we can quote the UK House of Commons Library Research Paper 07/86 (page 24):
Article 18 (Constitution Article III-125), like present Article 18 TEC, allows the Union to enact the necessary legislation to ensure freedom of movement, even where the Treaty does not expressly provide for it, specifying measures concerning social security or social protection for which the Council must act by unanimity after consulting the EP.
***
The freedom of movement and the freedom to reside within the EU follows from our status as citizens of the Union, not only if we are, for instance, workers or self-employed.
In each version, paragraph 1 spells out the important principle that every citizen of the European Union, namely every person who is a citizen of a member state, has the right to move and reside freely within the territory of the member states.
Paragraph 1 of the TEC and the ToL is essentially the same. Although the treaties contain the germ of equality between EU citizens, the right to move and reside is subject to limitations and conditions, of which more when we glance at the secondary legislation.
Between themselves the draft Constitution and the Constitution were almost identical.
***
The substance of paragraph 2 of the current TEC and the ToL is essentially the same, the co-decision procedure having become the ordinary legislative procedure, as elsewhere in the Lisbon Treaty.
***
In paragraph 3 TFEU, the sensitive questions of social security and social protection, hitherto exempt from action within the context of Article 18 TEC, open up to a special legislative procedure where the European Parliament is consulted, but they require unanimity by the Council.
The Article 18(3) provisions on passports, identity cards, residence permits or any other such document have been deleted from paragraph 3 TFEU, but moved to Title V, Chapter 2 Policies on border checks, asylum and immigration, which introduces a special legislative procedure, with consultation of the European Parliament and unanimous Council acts.
As Steve Peers points out in his EU Reform Treaty Analysis no. 3.2 this power has been inserted into the external borders provisions, where the UK, Ireland and Denmark will be able to opt out of it (page 5).
See OJ 17.12.2007 C 306/59:
Article 62(3) TFEU (ToL), renumbered Article 77(3) TFEU
3. If action by the Union should prove necessary to facilitate the exercise of the right referred to in Article 17(2)(a), and if the Treaties have not provided the necessary powers, the Council, acting in accordance with a special legislative procedure, may adopt provisions concerning passports, identity cards, residence permits or any other such document. The Council shall act unanimously after consulting the European Parliament.
***
The right to move and reside freely within the European Union is important for millions of EU citizens, who reside in another member state.
For them and their family members 30 April 2006 was a milestone, because Directive 2004/38/EC entered into force, codifying, clarifying and extending their rights (OJ 30.4.2004 L 158/77):
Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC,
68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC (Text with EEA relevance)
Article 1 Directive2004/38/EC
Subject
This Directive lays down:
(a) the conditions governing the exercise of the right of free movement and residence within the territory of the Member States by Union citizens and their family members;
(b) the right of permanent residence in the territory of the Member States for Union citizens and their family members;
(c) the limits placed on the rights set out in (a) and (b) on grounds of public policy, public security or public health.
***
For workers’ free movement there is the amended Council Regulation No 1612/68 Regulation (EEC) No 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community (A consolidated version is available.)
Ralf Grahn
Source:
UK House of Commons Library Research Paper 07/86: The Treaty of Lisbon: amendments to the Treaty establishing the European Community; 6 December 2007
Steve Peers: Statewatch Analysis, EU Reform Treaty Analysis no. 3.2: Revised text of Part Two of the Treaty establishing the European Community (TEC); Version 2, 23 October 2007
http://eulaw.typepad.com/eulawblog/2008/03/fifth-commissio.html
Here, we look at the basic treaty provisions on EU citizenship in the light of the Treaty of Lisbon, offering the reader possibilities to compare the current Treaty establishing the European Community with the intermediary Convention and Constitution stages leading up to the amending Lisbon Treaty.
***
In the Treaty of Lisbon (ToL) the intergovernmental conference (IGC 2007) agreed to change the Treaty establishing the European Community (TEC), which becomes the Treaty on the Functioning of the European Union (TFEU). In the renamed Part Two Non-discrimination and citizenship of the Union, Article 18 is amended as follows (Official Journal, OJ, 17.12.2007 C 306/51):
35) Article 18 shall be amended as follows:
(a) in paragraph 2, the words ‘the Council may adopt’ shall be replaced by ‘the European Parliament and the Council, acting in accordance with the ordinary legislative procedure, may adopt’ and the last sentence shall be deleted;
(b) paragraph 3 shall be replaced by the following:
‘3. For the same purposes as those referred to in paragraph 1 and if the Treaties have not provided the necessary powers, the Council, acting in accordance with a special legislative procedure, may adopt measures concerning social security or social protection. The Council shall act unanimously after consulting the European Parliament.’
***
Since inserting innovations agreed in the 2004 IGC into the Treaty ‘by way of specific modifications in the usual manner’ does not begin to make sense for the normal reader, the following step is to fetch the patient to be operated on, namely retrieve the text of the current provision (in the latest consolidated version of the existing treaties OJ 29.12.2006 C 321 E/49-50):
Article 18 TEC
1. Every citizen of the Union shall have the right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in this Treaty and by the measures adopted to give it effect.
2. If action by the Community should prove necessary to attain this objective and this Treaty has not provided the necessary powers, the Council may adopt provisions with a view to facilitating the exercise of the rights referred to in paragraph 1. The Council shall act in accordance with the procedure referred to in Article 251.
3. Paragraph 2 shall not apply to provisions on passports, identity cards, residence permits or any other such document or to provisions on social security or social protection.
***
Then, the horizontal and the express amendments have to be inserted to arrive at a consolidated version of the Article according to the Lisbon Treaty:
Article 18 TFEU (ToL), renumbered Article 21 TFEU
1. Every citizen of the Union shall have the right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in the Treaties and by the measures adopted to give them effect.
2. If action by the Union should prove necessary to attain this objective and the Treaties have not provided the necessary powers, the European Parliament and the Council, acting in accordance with the ordinary legislative procedure, may adopt provisions with a view to facilitating the exercise of the rights referred to in paragraph 1.
3. For the same purposes as those referred to in paragraph 1 and if the Treaties have not provided the necessary powers, the Council, acting in accordance with a special legislative procedure, may adopt measures concerning social security or social protection. The Council shall act unanimously after consulting the European Parliament.
***
The European Convention, chaired by Valéry Giscard d’Estaing, tabled the following proposal in the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/30):
Article III-9 Draft Constitution
1. If action by the Union should prove necessary to facilitate the exercise of the right, referred to in Article I-8, of every Union citizen to move and reside freely and the Constitution has not provided the necessary powers, European laws or framework laws may establish measures for that purpose.
2. For the same purpose and unless the Constitution has provided for powers of action in this area, measures concerning passports, identity cards, residence permits or any other such document and measures concerning social security or social protection may be laid down by a European law or framework law of the Council of Ministers. The Council of Ministers shall act unanimously after consulting the European Parliament.
***
The IGC 2004 agreed on the following text in the Treaty establishing a Constitution for Europe (OJ 16.12.2004 C 310/56-57):
Article III-125 Constitution
1. If action by the Union should prove necessary to facilitate the exercise of the right, referred to in Article I-10(2)(a), of every citizen of the Union to move and reside freely and the Constitution has not provided the necessary powers, European laws or framework laws may establish measures for that purpose.
2. For the same purposes as those referred to in paragraph 1 and if the Constitution has not provided the necessary powers, a European law or framework law of the Council may establish measures concerning passports, identity cards, residence permits or any other such document and measures concerning social security or social protection. The Council shall act unanimously after consulting the European Parliament.
***
For a short description of the proposed Article, we can quote the UK House of Commons Library Research Paper 07/86 (page 24):
Article 18 (Constitution Article III-125), like present Article 18 TEC, allows the Union to enact the necessary legislation to ensure freedom of movement, even where the Treaty does not expressly provide for it, specifying measures concerning social security or social protection for which the Council must act by unanimity after consulting the EP.
***
The freedom of movement and the freedom to reside within the EU follows from our status as citizens of the Union, not only if we are, for instance, workers or self-employed.
In each version, paragraph 1 spells out the important principle that every citizen of the European Union, namely every person who is a citizen of a member state, has the right to move and reside freely within the territory of the member states.
Paragraph 1 of the TEC and the ToL is essentially the same. Although the treaties contain the germ of equality between EU citizens, the right to move and reside is subject to limitations and conditions, of which more when we glance at the secondary legislation.
Between themselves the draft Constitution and the Constitution were almost identical.
***
The substance of paragraph 2 of the current TEC and the ToL is essentially the same, the co-decision procedure having become the ordinary legislative procedure, as elsewhere in the Lisbon Treaty.
***
In paragraph 3 TFEU, the sensitive questions of social security and social protection, hitherto exempt from action within the context of Article 18 TEC, open up to a special legislative procedure where the European Parliament is consulted, but they require unanimity by the Council.
The Article 18(3) provisions on passports, identity cards, residence permits or any other such document have been deleted from paragraph 3 TFEU, but moved to Title V, Chapter 2 Policies on border checks, asylum and immigration, which introduces a special legislative procedure, with consultation of the European Parliament and unanimous Council acts.
As Steve Peers points out in his EU Reform Treaty Analysis no. 3.2 this power has been inserted into the external borders provisions, where the UK, Ireland and Denmark will be able to opt out of it (page 5).
See OJ 17.12.2007 C 306/59:
Article 62(3) TFEU (ToL), renumbered Article 77(3) TFEU
3. If action by the Union should prove necessary to facilitate the exercise of the right referred to in Article 17(2)(a), and if the Treaties have not provided the necessary powers, the Council, acting in accordance with a special legislative procedure, may adopt provisions concerning passports, identity cards, residence permits or any other such document. The Council shall act unanimously after consulting the European Parliament.
***
The right to move and reside freely within the European Union is important for millions of EU citizens, who reside in another member state.
For them and their family members 30 April 2006 was a milestone, because Directive 2004/38/EC entered into force, codifying, clarifying and extending their rights (OJ 30.4.2004 L 158/77):
Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC,
68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC (Text with EEA relevance)
Article 1 Directive2004/38/EC
Subject
This Directive lays down:
(a) the conditions governing the exercise of the right of free movement and residence within the territory of the Member States by Union citizens and their family members;
(b) the right of permanent residence in the territory of the Member States for Union citizens and their family members;
(c) the limits placed on the rights set out in (a) and (b) on grounds of public policy, public security or public health.
***
For workers’ free movement there is the amended Council Regulation No 1612/68 Regulation (EEC) No 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community (A consolidated version is available.)
Ralf Grahn
Source:
UK House of Commons Library Research Paper 07/86: The Treaty of Lisbon: amendments to the Treaty establishing the European Community; 6 December 2007
Steve Peers: Statewatch Analysis, EU Reform Treaty Analysis no. 3.2: Revised text of Part Two of the Treaty establishing the European Community (TEC); Version 2, 23 October 2007
Thursday, 6 March 2008
EU TFEU: Citizenship of the Union
NOTICE 7 MARCH 2008 (9.15 EET):
I have noticed that I made a mistake, for which I apologise. The 'contamination' I ascribe to the English consolidated version of the TEC of 2006, was caused by me while working with the different versions. Read with a grain (or more) of salt.
When I have the time, I intend to either edit this post or to post a corrected version.
Humbly,
Ralf Grahn
___________________________________________________________________
Is the Treaty of Lisbon going to foist a new, unwanted, EU citizenship upon 490 million unsuspecting Europeans?
Does a change from a ‘complementary’ to an ‘additional’ EU citizenship materially alter our status, including our national citizenship?
Some of the wilder allegations in the blogosphere seem to contend that both (mutually exclusive) contentions are true.
Let us look at the legal issues at stake.
Most readers of this blog have been citizens of the European Union since the Treaty on European Union (TEU) entered into force, in November 1993. Some became EU citizens later, through enlargement, while a considerable number of readers are citizens of another Union, with somewhat longer traditions, the United States of America.
Today, we take a look at the legal basics of the “bonus citizenship” of the European Union, in the light of the Treaty of Lisbon (ToL).
***
The intergovernmental conference (IGC 2007) reordered and amended the existing treaties by the Treaty of Lisbon. The Treaty establishing the European Community (TEC) was renamed the Treaty on the Functioning of the European Union (TFEU), and Part Two of the TFEU is now called Non-discrimination and citizenship of the Union.
Point 34 of the Lisbon Treaty (Article 2) sets out the reception and marginal amendments of our status as citizens of the EU (Official Journal, OJ, 17.12.2007 C 306/51):
34) Article 17 shall be amended as follows:
(a) in paragraph 1, the word ‘complement’ shall be replaced by ‘be additional to’;
(b) paragraph 2 shall be replaced by the following:
2. Citizens of the Union shall enjoy the rights and be subject to the duties provided for in the Treaties. They shall have, inter alia:
(a) the right to move and reside freely within the territory of the Member States;
(b) the right to vote and to stand as candidates in elections to the European Parliament and in municipal elections in their Member State of residence, under the same conditions as nationals of that State;
(c) the right to enjoy, in the territory of a third country in which the Member State of which they are nationals is not represented, the protection of the diplomatic and consular authorities of any Member State on the same conditions as the nationals of that State;
(d) the right to petition the European Parliament, to apply to the European Ombudsman, and to address the institutions and advisory bodies of the Union in any of the Treaty languages and to obtain a reply in the same language.
These rights shall be exercised in accordance with the conditions and limits defined by the
Treaties and by the measures adopted thereunder.
***
As usual, the text of the IGC 2007 makes sense only in conjunction with the current treaty, in this case the TEC (the latest consolidated version in OJ 29.12.2006 C 321 E/49):
PART TWO
CITIZENSHIP OF THE UNION
Article 17 TEC
1. Citizenship of the Union is hereby established. Every person holding the nationality of a Member State shall be a citizen of the Union. Citizenship of the Union shall be additional to and not replace national citizenship.
2. Citizens of the Union shall enjoy the rights conferred by this Treaty and shall be subject to the duties imposed thereby.
***
The following step is a merger of the existing text with the agreed amendments, which should lead to the following new Article:
Article 17 TFEU (ToL), after renumbering Article 20 TFEU
1. Citizenship of the Union is hereby established. Every person holding the nationality of a Member State shall be a citizen of the Union. Citizenship of the Union shall be additional to and not replace national citizenship.
2. Citizens of the Union shall enjoy the rights and be subject to the duties provided for in the Treaties. They shall have, inter alia:
(a) the right to move and reside freely within the territory of the Member States;
(b) the right to vote and to stand as candidates in elections to the European Parliament and in municipal elections in their Member State of residence, under the same conditions as nationals of that State;
(c) the right to enjoy, in the territory of a third country in which the Member State of which they are nationals is not represented, the protection of the diplomatic and consular authorities of any Member State on the same conditions as the nationals of that State;
(d) the right to petition the European Parliament, to apply to the European Ombudsman, and to address the institutions and advisory bodies of the Union in any of the Treaty languages and to obtain a reply in the same language.
These rights shall be exercised in accordance with the conditions and limits defined by the
Treaties and by the measures adopted thereunder.
***
Someone may think that the present ‘locus’ of Union citizenship is odd. The Maastricht Treaty established citizenship ‘of the Union’, but placed the provisions in the Community treaty.
Possibly, some misunderstandings concerning citizenship of the EU have to do with the less than natural language of hereby establishing a status, which has existed since 1993, in the same way as the Treaty establishing the European Economic Community (EEC) and later the European Community (EC) has kept on ‘establishing’ through various treaty reforms.
In short, citizenship of the EU was established more than 14 years ago.
In my humble opinion, the Reform Treaty should have been clearer.
***
Then, the attentive reader spots a problem. How can the Lisbon Treaty replace the word ‘complement’ by ‘be additional to’, when the consolidated TEC we just read already uses ‘be additional to’?
On the other hand, our leaders have made clear that consolidated versions are made public for illustrative purposes only, and that they have no legal value.
Piqued by this inconsistency, I checked Article 17 TEC in the handy Blackstone’s EC Legislation, where ‘complement’ is used.
Going back to the Maastricht Treaty, as presented on the Eur-Lex Treaties web pages, does not help us that much, since the original 1992 wording is different (although it should reassure us that citizenship of the Union was established back then):
http://eur-lex.europa.eu/en/treaties/index.htm
Article 8
1. Citizenship of the Union is hereby established.
Every person holding the nationality of a Member State shall be a citizen of the Union.
2. Citizens of the Union shall enjoy the rights conferred by this Treaty and shall be subject to the duties imposed thereby.
***
The following reform was the Treaty of Amsterdam, where we make a discovery:
9. Article 8(1) shall be replaced by the following:
‘1. Citizenship of the Union is hereby established. Every person holding the nationality of a Member State shall be a citizen of the Union. Citizenship of the Union shall complement and not replace national citizenship.’
While the preceding Maastricht Treaty had boldly stated that each citizen of a member state is a citizen of the Union, the Amsterdam Treaty seemingly wanted to reassure all and sundry that nothing replaced national citizenship. The word ‘complement’ had made its appearance.
In the 1997 consolidated version of the Amsterdam Treaty, we find the renumbering from Article 8 to Article 17 TEC, and the citizenship of the Union ‘shall complement’:
Article 17 (ex Article 8) TEC
1. Citizenship of the Union is hereby established. Every person holding the nationality of a Member State shall be a citizen of the Union. Citizenship of the Union shall complement and not replace national citizenship.
2. Citizens of the Union shall enjoy the rights conferred by this Treaty and shall be subject to the duties imposed thereby.
***
I failed to find any relevant mention of ‘citizenship’ in the Treaty of Nice, but in the latest consolidated version (2006) an ‘additional’ Union citizenship seems to have introduced itself.
Is this the spectre of self-reforming treaties that some fear?
The unannounced change remains a mystery, but a little later we are going to look at the intermediary stages of treaty reform, the Convention’s draft Constitution 2003 and the IGC 2004’s Constitution. Is it possible that a slip through ‘contamination’ occurred during the 2006 consolidation?
***
The most striking difference between the current TEC and the new TFEU Article is the added text and detail in paragraph 2, but the difference is mainly systematic and presentational, not substantial. The new Article offers us the main contents at a glance, where we presently have to read the following Articles to get a general picture of our rights.
For more detail, you have to go to the following Articles of the Lisbon Treaty, too.
Some details change with the Treaty of Lisbon, but we will get back to them when we have looked at the intermediary stages of the treaty reform process.
***
The European Convention, led by Valéry Giscard d’Estaing, proposed the following Article I-8 Citizenship of the Union, in Part I, Title II Fundamental rights and citizenship of the Union, of the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/9-10):
Article 8 Draft Constitution
Citizenship of the Union
1. Every national of a Member State shall be a citizen of the Union. Citizenship of the Union shall be additional to national citizenship; it shall not replace it.
2. Citizens of the Union shall enjoy the rights and be subject to the duties provided for in the Constitution. They shall have:
— the right to move and reside freely within the territory of the Member States;
— the right to vote and to stand as candidates in elections to the European Parliament and in municipal elections in their Member State of residence, under the same conditions as nationals of that State;
— the right to enjoy, in the territory of a third country in which the Member State of which they are nationals is not represented, the protection of the diplomatic and consular authorities of any Member State on the same conditions as the nationals of that State;
— the right to petition the European Parliament, to apply to the European Ombudsman, and to address the Institutions and advisory bodies of the Union in any of the Constitution's languages and to obtain a reply in the same language.
3. These rights shall be exercised in accordance with the conditions and limits defined by the Constitution and by the measures adopted to give it effect.
***
The IGC 2004 agreed on the following text, in Part I , Title II Fundamental rights and citizenship of the Union (OJ 16.12.2004 C 310/13-14):
Article I-10 Constitution
Citizenship of the Union
1. Every national of a Member State shall be a citizen of the Union. Citizenship of the Union shall be additional to national citizenship and shall not replace it.
2. Citizens of the Union shall enjoy the rights and be subject to the duties provided for in the
Constitution. They shall have:
(a) the right to move and reside freely within the territory of the Member States;
(b) the right to vote and to stand as candidates in elections to the European Parliament and in municipal elections in their Member State of residence, under the same conditions as nationals of that State;
(c) the right to enjoy, in the territory of a third country in which the Member State of which they are nationals is not represented, the protection of the diplomatic and consular authorities of any Member State on the same conditions as the nationals of that State;
(d) the right to petition the European Parliament, to apply to the European Ombudsman, and to address the institutions and advisory bodies of the Union in any of the Constitution's languages and to obtain a reply in the same language.
These rights shall be exercised in accordance with the conditions and limits defined by the
Constitution and by the measures adopted thereunder.
***
We notice that the draft Constitution elevated citizenship of the Union to the ‘constitutional’ and visible part of the proposed treaty. At the same time, the proposed Article I-8 gave an overview, with legal bases detailed in Articles III-9 to III-13.
Article I-10 of the Constitution was almost identical to the draft. Detailed provisions allowing secondary legislation followed in Articles III-125 to III-129.
The IGC 2007 left the presentation of citizenship of the Union in the old Community treaty, now TFEU, but compensated by mentioning citizenship in the TEU:
The TEU Preamble refers to the establishment of ‘a citizenship common to the nationals of their [the signatories’] nationals’, as presently.
The bare essentials of citizenship are laid out in Article 8 TEU (ToL), renumbered Article 9 TEU:
“In all its activities, the Union shall observe the principle of the equality of its citizens, who shall receive equal attention from its institutions, bodies, offices and agencies. Every national of a Member State shall be a citizen of the Union. Citizenship of the Union shall be additional to national citizenship and shall not replace it.”
In addition, there are a number of references to ‘citizen’, ‘citizens’ and ‘citizenship’ in the new TEU, marking one step along the road towards more developed citizens’ rights within the European Union.
***
The IGC 2007 reverted to the formula “Citizenship of the Union is hereby established” in Article 17 TFEU (ToL), renumbered Article 20 TFEU, which seems to have caused some consternation.
In paragraph 1, EU citizenship is a complement to national citizenship in the present TEC according to the Amsterdam Treaty (but ‘additional to’ in the 2006 consolidation), and ‘additional to’ was used in both the draft Constitution and the Constitution. The Lisbon Treaty replaces the Amsterdam Treaty wording with a Union citizenship, which ‘be additional to’ national citizenship.
Does the different choice of words lead to any real difference in meaning? Since there is an express change, one has to start with the presumption that it has some meaning.
Let us start with a basic dictionary check (The New Penguin English Dictionary):
‘Additional’ is explained as ‘added, extra or supplementary’.
‘Complement’ (verb) is described as being ‘complementary to (something)’, whereas the noun ‘complement’ is given the primary meaning ‘something that fills up or completes a whole, or adds extra features to enhance it’.
I find it hard to see any significant difference between the concepts.
***
I failed to find any mention in the IGC 2007 Mandate.
***
Would we be wiser if we looked at another language version of the Lisbon Treaty?
The Treaty of Lisbon was drafted in French. Even if all the language versions are ‘equally authentic’, French is our logical first choice for a comparison:
a) au paragraphe 1, le mot «complète» est remplacé par «s'ajoute à»;
It looks the same as the English ToL version.
The French draft Constitution Article I-8 employed the wording:
« La citoyenneté de l'Union s'ajoute à la citoyenneté nationale et ne la remplace pas. »
The Constitution Article I-10 in French did the same:
« La citoyenneté de l'Union s'ajoute à la citoyenneté nationale et ne la remplace pas. »
The French rendering of the Lisbon Treaty is correct, since the current Article 17 TEC being amended uses the words:
« La citoyenneté de l’Union complète la citoyenneté nationale et ne la remplace pas. »
Even the French consolidated version from 2006 uses the same words.
We have now followed the French and the English versions of the provision on EU citizenship side by side, and the only ‘odd man out’, with its anticipatory use of ‘additional to’ is the latest consolidated version in English.
***
Did the European Convention have anything particular in mind, when it made the original change?
Étienne de Poncins, who worked in the Convention Secretariat, makes no comment in his book other than that the substance of Article I-8 « n’est pas fondamentalement nouvelle » (page 98).
The Praesidium document 528/03 of 6 February 2003 used the word ‘additional’ in the English version of then Article 7, and the Explanatory note stated:
“The definition of citizenship of the Union in paragraph 1 follows that given in the current
EC Treaty. This paragraph also establishes the principle of equality between all European citizens.”
The French version of Article 7(1) employed the new words ‘s’ajoute’, as you can see in the Note de Praesidium à la Convention:
« 1. Possède la citoyenneté de l'Union toute personne ayant la nationalité d'un Etat membre. La
citoyenneté de l'Union s'ajoute à la citoyenneté nationale et ne la remplace pas. Toutes les
citoyennes et tous les citoyens de l'Union sont égaux devant la loi. »
The Praesidium Note explicative in CONV 528/03 (page 14) states:
« Article 7:
La définition de la citoyenneté de l'Union donnée au premier paragraphe suit celle du présent traité CE. Ce paragraphe consacre en outre le principe d'égalité entre toutes les citoyennes et tous les citoyens européens. »
***
Based on the material presented, I conclude that the European Convention intended no material change by employing the slightly different wording ‘s’ajoute’ instead of ‘complète’. Had any material change been the aim, it would have been contrary to the Explanatory note.
In addition, the experienced UK diplomat Sir John Kerr, who was the Secretary General of the European Convention, and who himself translated a number of the Praesidium documents which were confidential before publishing, would most probably have reacted if the change of words had aimed at substantial change.
Therefore, the conclusion seems to be that a minor change of nuance made in French and in English during the Convention has worked its way through to the Treaty of Lisbon, although the consolidated English version from 2006 somehow made anticipatory use of the Convention and Constitution wording, a slip now legalised by the Lisbon Treaty.
***
Why did I trouble you (and myself) with this?
As far as I see, two misconceptions about the citizenship of the EU have been spread in the blogosphere, and presumably these allegations may mislead the public.
First, the Treaty of Lisbon does not, in reality, establish an EU citizenship, which exists since 1993, in spite of the Treaty’s express but unfortunate wording.
Second, allegations that replacing ‘complement’ by ‘be additional to’ is to have material (and sinister) effects are rubbish, and we may suppose that few readers of the English 2006 consolidation have been disturbed in the least.
***
Finally, one substantial aspect of Union citizenship, starting with a quote from the UK House of Commons Library Research Paper 07/86 (page 24):
‘The ECJ has indicated on several occasions that “citizenship of the Union is destined to be the
fundamental status of nationals of the Member States”.’
This is succinctly put, the evolving state of citizens of the European Union from mere ‘market operators’ (workers, entrepreneurs, investors) to more fully-fledged citizens, something Rudolf Streinz describes as the progress from “Marktbürgerschaft” towards Unionsbürgerschaft” (page 379).
Ralf Grahn
Source:
Étienne de Poncins: Vers une Constitution européenne; Éditions 10/18, 2003
UK House of Commons Library Research Paper 07/86: The Treaty of Lisbon: amendments to the Treaty establishing the European Community; 6 December 2007
Rudolf Streinz: EUV/EGV Vertrag über die Europäische Union und Vertrag zur Gründung der Europäischen Gemeinschaft; Verlag C. H. Beck, München 2003
I have noticed that I made a mistake, for which I apologise. The 'contamination' I ascribe to the English consolidated version of the TEC of 2006, was caused by me while working with the different versions. Read with a grain (or more) of salt.
When I have the time, I intend to either edit this post or to post a corrected version.
Humbly,
Ralf Grahn
___________________________________________________________________
Is the Treaty of Lisbon going to foist a new, unwanted, EU citizenship upon 490 million unsuspecting Europeans?
Does a change from a ‘complementary’ to an ‘additional’ EU citizenship materially alter our status, including our national citizenship?
Some of the wilder allegations in the blogosphere seem to contend that both (mutually exclusive) contentions are true.
Let us look at the legal issues at stake.
Most readers of this blog have been citizens of the European Union since the Treaty on European Union (TEU) entered into force, in November 1993. Some became EU citizens later, through enlargement, while a considerable number of readers are citizens of another Union, with somewhat longer traditions, the United States of America.
Today, we take a look at the legal basics of the “bonus citizenship” of the European Union, in the light of the Treaty of Lisbon (ToL).
***
The intergovernmental conference (IGC 2007) reordered and amended the existing treaties by the Treaty of Lisbon. The Treaty establishing the European Community (TEC) was renamed the Treaty on the Functioning of the European Union (TFEU), and Part Two of the TFEU is now called Non-discrimination and citizenship of the Union.
Point 34 of the Lisbon Treaty (Article 2) sets out the reception and marginal amendments of our status as citizens of the EU (Official Journal, OJ, 17.12.2007 C 306/51):
34) Article 17 shall be amended as follows:
(a) in paragraph 1, the word ‘complement’ shall be replaced by ‘be additional to’;
(b) paragraph 2 shall be replaced by the following:
2. Citizens of the Union shall enjoy the rights and be subject to the duties provided for in the Treaties. They shall have, inter alia:
(a) the right to move and reside freely within the territory of the Member States;
(b) the right to vote and to stand as candidates in elections to the European Parliament and in municipal elections in their Member State of residence, under the same conditions as nationals of that State;
(c) the right to enjoy, in the territory of a third country in which the Member State of which they are nationals is not represented, the protection of the diplomatic and consular authorities of any Member State on the same conditions as the nationals of that State;
(d) the right to petition the European Parliament, to apply to the European Ombudsman, and to address the institutions and advisory bodies of the Union in any of the Treaty languages and to obtain a reply in the same language.
These rights shall be exercised in accordance with the conditions and limits defined by the
Treaties and by the measures adopted thereunder.
***
As usual, the text of the IGC 2007 makes sense only in conjunction with the current treaty, in this case the TEC (the latest consolidated version in OJ 29.12.2006 C 321 E/49):
PART TWO
CITIZENSHIP OF THE UNION
Article 17 TEC
1. Citizenship of the Union is hereby established. Every person holding the nationality of a Member State shall be a citizen of the Union. Citizenship of the Union shall be additional to and not replace national citizenship.
2. Citizens of the Union shall enjoy the rights conferred by this Treaty and shall be subject to the duties imposed thereby.
***
The following step is a merger of the existing text with the agreed amendments, which should lead to the following new Article:
Article 17 TFEU (ToL), after renumbering Article 20 TFEU
1. Citizenship of the Union is hereby established. Every person holding the nationality of a Member State shall be a citizen of the Union. Citizenship of the Union shall be additional to and not replace national citizenship.
2. Citizens of the Union shall enjoy the rights and be subject to the duties provided for in the Treaties. They shall have, inter alia:
(a) the right to move and reside freely within the territory of the Member States;
(b) the right to vote and to stand as candidates in elections to the European Parliament and in municipal elections in their Member State of residence, under the same conditions as nationals of that State;
(c) the right to enjoy, in the territory of a third country in which the Member State of which they are nationals is not represented, the protection of the diplomatic and consular authorities of any Member State on the same conditions as the nationals of that State;
(d) the right to petition the European Parliament, to apply to the European Ombudsman, and to address the institutions and advisory bodies of the Union in any of the Treaty languages and to obtain a reply in the same language.
These rights shall be exercised in accordance with the conditions and limits defined by the
Treaties and by the measures adopted thereunder.
***
Someone may think that the present ‘locus’ of Union citizenship is odd. The Maastricht Treaty established citizenship ‘of the Union’, but placed the provisions in the Community treaty.
Possibly, some misunderstandings concerning citizenship of the EU have to do with the less than natural language of hereby establishing a status, which has existed since 1993, in the same way as the Treaty establishing the European Economic Community (EEC) and later the European Community (EC) has kept on ‘establishing’ through various treaty reforms.
In short, citizenship of the EU was established more than 14 years ago.
In my humble opinion, the Reform Treaty should have been clearer.
***
Then, the attentive reader spots a problem. How can the Lisbon Treaty replace the word ‘complement’ by ‘be additional to’, when the consolidated TEC we just read already uses ‘be additional to’?
On the other hand, our leaders have made clear that consolidated versions are made public for illustrative purposes only, and that they have no legal value.
Piqued by this inconsistency, I checked Article 17 TEC in the handy Blackstone’s EC Legislation, where ‘complement’ is used.
Going back to the Maastricht Treaty, as presented on the Eur-Lex Treaties web pages, does not help us that much, since the original 1992 wording is different (although it should reassure us that citizenship of the Union was established back then):
http://eur-lex.europa.eu/en/treaties/index.htm
Article 8
1. Citizenship of the Union is hereby established.
Every person holding the nationality of a Member State shall be a citizen of the Union.
2. Citizens of the Union shall enjoy the rights conferred by this Treaty and shall be subject to the duties imposed thereby.
***
The following reform was the Treaty of Amsterdam, where we make a discovery:
9. Article 8(1) shall be replaced by the following:
‘1. Citizenship of the Union is hereby established. Every person holding the nationality of a Member State shall be a citizen of the Union. Citizenship of the Union shall complement and not replace national citizenship.’
While the preceding Maastricht Treaty had boldly stated that each citizen of a member state is a citizen of the Union, the Amsterdam Treaty seemingly wanted to reassure all and sundry that nothing replaced national citizenship. The word ‘complement’ had made its appearance.
In the 1997 consolidated version of the Amsterdam Treaty, we find the renumbering from Article 8 to Article 17 TEC, and the citizenship of the Union ‘shall complement’:
Article 17 (ex Article 8) TEC
1. Citizenship of the Union is hereby established. Every person holding the nationality of a Member State shall be a citizen of the Union. Citizenship of the Union shall complement and not replace national citizenship.
2. Citizens of the Union shall enjoy the rights conferred by this Treaty and shall be subject to the duties imposed thereby.
***
I failed to find any relevant mention of ‘citizenship’ in the Treaty of Nice, but in the latest consolidated version (2006) an ‘additional’ Union citizenship seems to have introduced itself.
Is this the spectre of self-reforming treaties that some fear?
The unannounced change remains a mystery, but a little later we are going to look at the intermediary stages of treaty reform, the Convention’s draft Constitution 2003 and the IGC 2004’s Constitution. Is it possible that a slip through ‘contamination’ occurred during the 2006 consolidation?
***
The most striking difference between the current TEC and the new TFEU Article is the added text and detail in paragraph 2, but the difference is mainly systematic and presentational, not substantial. The new Article offers us the main contents at a glance, where we presently have to read the following Articles to get a general picture of our rights.
For more detail, you have to go to the following Articles of the Lisbon Treaty, too.
Some details change with the Treaty of Lisbon, but we will get back to them when we have looked at the intermediary stages of the treaty reform process.
***
The European Convention, led by Valéry Giscard d’Estaing, proposed the following Article I-8 Citizenship of the Union, in Part I, Title II Fundamental rights and citizenship of the Union, of the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/9-10):
Article 8 Draft Constitution
Citizenship of the Union
1. Every national of a Member State shall be a citizen of the Union. Citizenship of the Union shall be additional to national citizenship; it shall not replace it.
2. Citizens of the Union shall enjoy the rights and be subject to the duties provided for in the Constitution. They shall have:
— the right to move and reside freely within the territory of the Member States;
— the right to vote and to stand as candidates in elections to the European Parliament and in municipal elections in their Member State of residence, under the same conditions as nationals of that State;
— the right to enjoy, in the territory of a third country in which the Member State of which they are nationals is not represented, the protection of the diplomatic and consular authorities of any Member State on the same conditions as the nationals of that State;
— the right to petition the European Parliament, to apply to the European Ombudsman, and to address the Institutions and advisory bodies of the Union in any of the Constitution's languages and to obtain a reply in the same language.
3. These rights shall be exercised in accordance with the conditions and limits defined by the Constitution and by the measures adopted to give it effect.
***
The IGC 2004 agreed on the following text, in Part I , Title II Fundamental rights and citizenship of the Union (OJ 16.12.2004 C 310/13-14):
Article I-10 Constitution
Citizenship of the Union
1. Every national of a Member State shall be a citizen of the Union. Citizenship of the Union shall be additional to national citizenship and shall not replace it.
2. Citizens of the Union shall enjoy the rights and be subject to the duties provided for in the
Constitution. They shall have:
(a) the right to move and reside freely within the territory of the Member States;
(b) the right to vote and to stand as candidates in elections to the European Parliament and in municipal elections in their Member State of residence, under the same conditions as nationals of that State;
(c) the right to enjoy, in the territory of a third country in which the Member State of which they are nationals is not represented, the protection of the diplomatic and consular authorities of any Member State on the same conditions as the nationals of that State;
(d) the right to petition the European Parliament, to apply to the European Ombudsman, and to address the institutions and advisory bodies of the Union in any of the Constitution's languages and to obtain a reply in the same language.
These rights shall be exercised in accordance with the conditions and limits defined by the
Constitution and by the measures adopted thereunder.
***
We notice that the draft Constitution elevated citizenship of the Union to the ‘constitutional’ and visible part of the proposed treaty. At the same time, the proposed Article I-8 gave an overview, with legal bases detailed in Articles III-9 to III-13.
Article I-10 of the Constitution was almost identical to the draft. Detailed provisions allowing secondary legislation followed in Articles III-125 to III-129.
The IGC 2007 left the presentation of citizenship of the Union in the old Community treaty, now TFEU, but compensated by mentioning citizenship in the TEU:
The TEU Preamble refers to the establishment of ‘a citizenship common to the nationals of their [the signatories’] nationals’, as presently.
The bare essentials of citizenship are laid out in Article 8 TEU (ToL), renumbered Article 9 TEU:
“In all its activities, the Union shall observe the principle of the equality of its citizens, who shall receive equal attention from its institutions, bodies, offices and agencies. Every national of a Member State shall be a citizen of the Union. Citizenship of the Union shall be additional to national citizenship and shall not replace it.”
In addition, there are a number of references to ‘citizen’, ‘citizens’ and ‘citizenship’ in the new TEU, marking one step along the road towards more developed citizens’ rights within the European Union.
***
The IGC 2007 reverted to the formula “Citizenship of the Union is hereby established” in Article 17 TFEU (ToL), renumbered Article 20 TFEU, which seems to have caused some consternation.
In paragraph 1, EU citizenship is a complement to national citizenship in the present TEC according to the Amsterdam Treaty (but ‘additional to’ in the 2006 consolidation), and ‘additional to’ was used in both the draft Constitution and the Constitution. The Lisbon Treaty replaces the Amsterdam Treaty wording with a Union citizenship, which ‘be additional to’ national citizenship.
Does the different choice of words lead to any real difference in meaning? Since there is an express change, one has to start with the presumption that it has some meaning.
Let us start with a basic dictionary check (The New Penguin English Dictionary):
‘Additional’ is explained as ‘added, extra or supplementary’.
‘Complement’ (verb) is described as being ‘complementary to (something)’, whereas the noun ‘complement’ is given the primary meaning ‘something that fills up or completes a whole, or adds extra features to enhance it’.
I find it hard to see any significant difference between the concepts.
***
I failed to find any mention in the IGC 2007 Mandate.
***
Would we be wiser if we looked at another language version of the Lisbon Treaty?
The Treaty of Lisbon was drafted in French. Even if all the language versions are ‘equally authentic’, French is our logical first choice for a comparison:
a) au paragraphe 1, le mot «complète» est remplacé par «s'ajoute à»;
It looks the same as the English ToL version.
The French draft Constitution Article I-8 employed the wording:
« La citoyenneté de l'Union s'ajoute à la citoyenneté nationale et ne la remplace pas. »
The Constitution Article I-10 in French did the same:
« La citoyenneté de l'Union s'ajoute à la citoyenneté nationale et ne la remplace pas. »
The French rendering of the Lisbon Treaty is correct, since the current Article 17 TEC being amended uses the words:
« La citoyenneté de l’Union complète la citoyenneté nationale et ne la remplace pas. »
Even the French consolidated version from 2006 uses the same words.
We have now followed the French and the English versions of the provision on EU citizenship side by side, and the only ‘odd man out’, with its anticipatory use of ‘additional to’ is the latest consolidated version in English.
***
Did the European Convention have anything particular in mind, when it made the original change?
Étienne de Poncins, who worked in the Convention Secretariat, makes no comment in his book other than that the substance of Article I-8 « n’est pas fondamentalement nouvelle » (page 98).
The Praesidium document 528/03 of 6 February 2003 used the word ‘additional’ in the English version of then Article 7, and the Explanatory note stated:
“The definition of citizenship of the Union in paragraph 1 follows that given in the current
EC Treaty. This paragraph also establishes the principle of equality between all European citizens.”
The French version of Article 7(1) employed the new words ‘s’ajoute’, as you can see in the Note de Praesidium à la Convention:
« 1. Possède la citoyenneté de l'Union toute personne ayant la nationalité d'un Etat membre. La
citoyenneté de l'Union s'ajoute à la citoyenneté nationale et ne la remplace pas. Toutes les
citoyennes et tous les citoyens de l'Union sont égaux devant la loi. »
The Praesidium Note explicative in CONV 528/03 (page 14) states:
« Article 7:
La définition de la citoyenneté de l'Union donnée au premier paragraphe suit celle du présent traité CE. Ce paragraphe consacre en outre le principe d'égalité entre toutes les citoyennes et tous les citoyens européens. »
***
Based on the material presented, I conclude that the European Convention intended no material change by employing the slightly different wording ‘s’ajoute’ instead of ‘complète’. Had any material change been the aim, it would have been contrary to the Explanatory note.
In addition, the experienced UK diplomat Sir John Kerr, who was the Secretary General of the European Convention, and who himself translated a number of the Praesidium documents which were confidential before publishing, would most probably have reacted if the change of words had aimed at substantial change.
Therefore, the conclusion seems to be that a minor change of nuance made in French and in English during the Convention has worked its way through to the Treaty of Lisbon, although the consolidated English version from 2006 somehow made anticipatory use of the Convention and Constitution wording, a slip now legalised by the Lisbon Treaty.
***
Why did I trouble you (and myself) with this?
As far as I see, two misconceptions about the citizenship of the EU have been spread in the blogosphere, and presumably these allegations may mislead the public.
First, the Treaty of Lisbon does not, in reality, establish an EU citizenship, which exists since 1993, in spite of the Treaty’s express but unfortunate wording.
Second, allegations that replacing ‘complement’ by ‘be additional to’ is to have material (and sinister) effects are rubbish, and we may suppose that few readers of the English 2006 consolidation have been disturbed in the least.
***
Finally, one substantial aspect of Union citizenship, starting with a quote from the UK House of Commons Library Research Paper 07/86 (page 24):
‘The ECJ has indicated on several occasions that “citizenship of the Union is destined to be the
fundamental status of nationals of the Member States”.’
This is succinctly put, the evolving state of citizens of the European Union from mere ‘market operators’ (workers, entrepreneurs, investors) to more fully-fledged citizens, something Rudolf Streinz describes as the progress from “Marktbürgerschaft” towards Unionsbürgerschaft” (page 379).
Ralf Grahn
Source:
Étienne de Poncins: Vers une Constitution européenne; Éditions 10/18, 2003
UK House of Commons Library Research Paper 07/86: The Treaty of Lisbon: amendments to the Treaty establishing the European Community; 6 December 2007
Rudolf Streinz: EUV/EGV Vertrag über die Europäische Union und Vertrag zur Gründung der Europäischen Gemeinschaft; Verlag C. H. Beck, München 2003
Wednesday, 5 March 2008
EU UE: Lisbon Lissabon Lisboa Lisbonne Lisbona Lisboa
The Treaty of Lisbon as well as Lissabontraktaten, der Vertrag von Lissabon, Lissaboni leping, Tratado de Lisboa, Traité de Lisbonne, Trattato de Lisbona, Verdrag van Lissabon, Lissabonin sopimus, Lissabonfördraget and a few more are on the search list of people, who want to find a readable, consolidated version in their own language, before the treaty is ratified and has entered into force.
Spitefully, the Council of the European Union has declined to publish consolidations of the Lisbon Treaty, and the other EU institutions have acquiesced in this charade of openness and transparency, since the published language versions are incomprehensible on their own.
Luckily, the most important EU document since 2004 has been made available in a number of languages and versions, which I have tried to record on this blog. My latest general update is:
Consolidated Lisbon Treaty Update (16 February 2008)
There have been two later specific updates:
EU: Complete Dutch consolidated Lisbon Treaty (23 February 2008)
EU Lisbon Treaty: Ratification and consolidation in Finland (24 February 2008)
***
I am grateful for additional information on planned or new consolidated versions of the Lisbon Treaty.
***
Because of the constant demand, I am going to merge the latest updates to give you the information I currently have.
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, but “forgot” to make available readable versions of the Reform Treaty in the treaty and official languages of the EU.
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 two 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
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
***
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
Constitreaty.com
The web site and accompanying blog at Constitreaty.com is an ongoing work to present the Constitutional Treaty and the Lisbon Treaty side by side for easy comparison, with highlighting and tracked changes facilitating the task.
When I checked a few moments ago, Parts I to III of the Constitution were available (with Part IV and the Final Act under construction). Try it out at:
http://www.constitreaty.com/
***
Finnish
Europe Information, of the Ministry for Foreign Affairs, has promised a consolidated version during the spring.
The government of Finland has now given a more precise publishing date, by mid April, to the promised consolidated versions of the Lisbon Reform Treaty, in Finnish and Swedish.
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. (See Swedish.)
***
French
Europa-EU-Audience
The bilingual web site en.europa-eu-audience found two unofficial parallel versions, leaked from the European Parliament, 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 (but I have not been able to locate it).
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.
http://www.sieps.se
Sieps has new web pages dedicated to the Lisbon Treaty:
http://www.lissabonfordraget.se/
Ladda ned Lissabonfördraget - Konsoliderad version av EU:s fördrag (pdf)
Ladda ned Lissabonfördraget – Protokoll mm (pdf)
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
***
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
Spitefully, the Council of the European Union has declined to publish consolidations of the Lisbon Treaty, and the other EU institutions have acquiesced in this charade of openness and transparency, since the published language versions are incomprehensible on their own.
Luckily, the most important EU document since 2004 has been made available in a number of languages and versions, which I have tried to record on this blog. My latest general update is:
Consolidated Lisbon Treaty Update (16 February 2008)
There have been two later specific updates:
EU: Complete Dutch consolidated Lisbon Treaty (23 February 2008)
EU Lisbon Treaty: Ratification and consolidation in Finland (24 February 2008)
***
I am grateful for additional information on planned or new consolidated versions of the Lisbon Treaty.
***
Because of the constant demand, I am going to merge the latest updates to give you the information I currently have.
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, but “forgot” to make available readable versions of the Reform Treaty in the treaty and official languages of the EU.
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 two 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
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
***
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
Constitreaty.com
The web site and accompanying blog at Constitreaty.com is an ongoing work to present the Constitutional Treaty and the Lisbon Treaty side by side for easy comparison, with highlighting and tracked changes facilitating the task.
When I checked a few moments ago, Parts I to III of the Constitution were available (with Part IV and the Final Act under construction). Try it out at:
http://www.constitreaty.com/
***
Finnish
Europe Information, of the Ministry for Foreign Affairs, has promised a consolidated version during the spring.
The government of Finland has now given a more precise publishing date, by mid April, to the promised consolidated versions of the Lisbon Reform Treaty, in Finnish and Swedish.
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. (See Swedish.)
***
French
Europa-EU-Audience
The bilingual web site en.europa-eu-audience found two unofficial parallel versions, leaked from the European Parliament, 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 (but I have not been able to locate it).
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.
http://www.sieps.se
Sieps has new web pages dedicated to the Lisbon Treaty:
http://www.lissabonfordraget.se/
Ladda ned Lissabonfördraget - Konsoliderad version av EU:s fördrag (pdf)
Ladda ned Lissabonfördraget – Protokoll mm (pdf)
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
***
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
EU TFEU: Combating discrimination: procedures
Discrimination is an evil. But should it be fought by prohibitions or by employing active countermeasures? These questions confront nearly every organisation, including the European Union. In the case of the EU the dimension of Union and member state powers is added.
A deeper understanding of these issues presupposes some knowledge of the legal basis on which the European Union acts in questions relating to discrimination.
Since the Treaty of Lisbon has been agreed between the member states’ governments, it is natural to take the amending treaty as our point of departure.
***
In Part Two – Non-discrimination and citizenship, the intergovernmental conference (IGC 2007) inserted an Article 16e on combating discrimination into the Treaty establishing the European Community (TEC). The Treaty of Lisbon (ToL) gave the treaty a new name: the Treaty on the Functioning of the European Union (TFEU). Here is the text of the IGC 2007 (Official Journal 17.12.2007 C 306/50):
33) An Article 16 E shall be inserted, with the wording of Article 13; in paragraph 2, the words ‘when the Council adopts Community’ shall be replaced by ‘the European Parliament and the Council, acting in accordance with the ordinary legislative procedure, may adopt the basic principles of the Union's’ and the words at the end of the paragraph ‘it shall act in accordance with the procedure referred to in Article 251’ shall be deleted.
***
The main clue offered by the IGC is ‘the wording of Article 13’, which means that we turn to the current TEC (in the latest consolidated version, together with the TEU, OJ 29.12.2006 C 321 E/48):
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 Zen of consolidation is to let the current text, the horizontal amendments and the express rewording flow together into a harmonious whole. Since the Lisbon Treaty uses one set of numbering, but offers renumbering for ultimate use, we mention both the ToL and the later Article numbers:
Article 16e TFEU (ToL), renumbered Article 19 TFEU
1. Without prejudice to the other provisions of the Treaties and within the limits of the powers conferred by them upon the Union, the Council, acting unanimously in accordance with a special legislative procedure and after obtaining the consent of 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, the European Parliament and the Council, acting in accordance with the ordinary legislative procedure, may adopt the basic principles of the Union's 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.
***
We notice that both paragraphs changed, although the first exclusively by the way of insidious horizontal amendments. Luckily, we can check our result against the ones who have gone before us: the consolidated TFEU versions on offer from the IIEA, the UK’s FCO, Statewatch or Open Europe. The practically minded, of course, turn to one of these consolidated versions immediately.
Web addresses and additional information on consolidated language versions of the Lisbon Treaty can be found in my latest general update:
Consolidated Lisbon Treaty Update (16 February 2008)
Then there are two later specific updates:
EU: Complete Dutch consolidated Lisbon Treaty (23 February 2008)
EU Lisbon Treaty: Ratification and consolidation in Finland (24 February 2008)
***
Although the Treaty of Lisbon amends the current treaties, the general purpose of the IGC 2007 was to enact at least the institutional innovations of the IGC 2004, if the Mandate did not stipulate otherwise.
Substantially, even if not formally, the two preceding stages are therefore of interest to the student of EU law and politics.
The European Convention, chaired by Valéry Giscard d’Estaing, proposed the following Article III-8 in the draft Treaty establishing a Constitution for Europe, Part III The policies and functioning of the Union, Title II Non-discrimination and citizenship (OJ 18.7.2003 C 169/29-30):
Article III-8 Draft Constitution
1. Without prejudice to the other provisions of the Constitution and within the limits of the powers conferred by it upon the Union, a European law or framework law of the Council of Ministers may establish the measures needed to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation. The Council of Ministers shall act unanimously after obtaining the consent of the European Parliament.
2. European laws or framework laws may establish basic principles for Union incentive measures and define such incentive measures, to support action taken by Member States, excluding any harmonisation of their laws and regulations.
***
The IGC 2004 agreed on the following wording, in Part III The policies and functioning of the Union, Title II Non-discrimination and citizenship, Article III-124 (OJ 16.12.2004 C 310/56):
Article III-124 Constitution
1. Without prejudice to the other provisions of the Constitution and within the limits of the powers assigned by it to the Union, a European law or framework law of the Council may establish the measures needed to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation. The Council shall act unanimously after obtaining the consent of the European Parliament.
2. By way of derogation from paragraph 1, European laws or framework laws may establish basic principles for Union incentive measures and define such measures, to support action taken by Member States in order to contribute to the achievement of the objectives referred to in paragraph 1, excluding any harmonisation of their laws and regulations.
***
The Convention introduced the ‘consent’ of the European Parliament instead of mere consultation as in the current 13(1) TEC. This was taken up in the Constitution and in the Lisbon Treaty, although the real dampener of expectations is that there has been no movement on the requirement of unanimity in the Council for action (measures).
The second paragraph, on incentive measures (supporting action) already adopted under the co-decision procedure, was given a somewhat strange form by the Convention, to ‘establish basic principles for Union incentive measures and define such incentive measures’ instead of adopting them, and the Constitution essentially followed in its footsteps.
Even odder is the wording of paragraph 2 of the Lisbon Treaty, when the European Parliament and the Council, acting in accordance with the ordinary legislative procedure ‘may adopt the basic principles of the Union's incentive measures’. If only basic principles can be adopted, what happens to the needed concrete measures?
***
The principle of non-discrimination is abundantly represented in the amended treaties. Some examples:
Article 1a TEU (ToL), renumbered Article 2 TEU, with non-discrimination as a value common to the Member States.
Article 2 TEU (ToL), renumbered Article 3 TEU, with the aim of the Union to combat social exclusion and discrimination.
Article 5b TFEU (ToL), renumbered Article 10 TFEU, with the aim to combat discrimination when defining and implementing Union policies. The “sister” of Article 16e (new 19) we studied today, and therefore rendered here in full to refresh our memories:
“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.”
Article 16d TFEU (ToL), renumbered Article 18 TFEU, prohibiting discrimination on grounds of nationality, where measures can be adopted according to the ordinary legislative procedure.
Article 16e TFEU (ToL), renumbered Article 19 TFEU, the various stages of which we have studied in this post, on action to combat discrimination and on basic principles for incentive measures.
Article 30 TFEU (ToL), renumbered Article 36 TFEU, on discrimination or a disguised restriction on trade between Member States.
Article 31 TFEU (ToL), renumberd Article 37 TFEU, on discrimination regarding the conditions under which goods are procured and marketed between nationals of Member States.
Article 34 TFEU (ToL), renumbered Article 40 TFEU, on the prohibition of any discrimination between producers or consumers within the Union concerning the common agricultural market organisation.
Article 39 TFEU (ToL), renumbered Article 45 TFEU, on the prohibition against discrimination based on nationality between workers in the context of free movement.
Article 58 TFEU (ToL), renumbered Article 65 TFEU, which prohibits arbitrary discrimination or disguised restrictions on the free movement of capital and payments.
Article 75 TFEU (ToL), renumbered Article 95 TFEU, which prohibits discrimination in the case of transport within the Union.
Article 87 TFEU (ToL), renumbered Article 107, which allows, as compatible with the internal market, state aid having a social character, granted to individual consumers, if granted without discrimination related to the origin of the products concerned.
Article 94 TFEU (ToL), renumbered Article 114 TFEU, with the prohibition of national provisions as means of arbitrary discrimination or a disguised restriction on trade between Member States, within the context of approximation (harmonisation) of the laws of the member states.
Article 141 TFEU (ToL), renumbered Article 157 TFEU, on equal pay without discrimination based on sex.
Article 184 TFEU (ToL), renumbered Article 200 TFEU, prohibiting direct or indirect discrimination between imports from various Member States when introducing or changing customs duties on goods imported into the associated overseas countries and territories.
Article 188j TFEU (ToL), renumbered Article 214 TFEU, with non-discrimination as a principle of humanitarian aid operations.
Article 280a TFEU (ToL), renumbered Article 326 TFEU, which requires that enhanced cooperation complies with the Treaties and Union law, and that it does not undermine the internal market or economic, social and territorial cohesion and that it shall not constitute a barrier to or discrimination in trade between Member States or distort competition between them.
***
The listing shows us that there are two main contexts and groups of anti-discriminatory provisions in the EU treaties:
We have prohibitions, action to combat and incentive measures concerning discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation.
The second group is related to the internal market, meant to function as if there were no national borders between the member states.
Another question worth mentioning is the distinction between prohibitions of discrimination and active measures to mitigate evils, and the relative merits of these approaches.
***
Since today’s article regarded the legal basis for action to combat discrimination and for adopting basic principles of the Union's incentive measures, we conclude with suggested reading for those who want to know what the European Community (Union) actually does.
The Commission’s DG Employment, Social Affairs & Equal Opportunities has a web page titled Action against discrimination, Civil Society:
http://ec.europa.eu/employment_social/fundamental_rights/index_en.htm
News and links are on offer to the interested.
Ralf Grahn
A deeper understanding of these issues presupposes some knowledge of the legal basis on which the European Union acts in questions relating to discrimination.
Since the Treaty of Lisbon has been agreed between the member states’ governments, it is natural to take the amending treaty as our point of departure.
***
In Part Two – Non-discrimination and citizenship, the intergovernmental conference (IGC 2007) inserted an Article 16e on combating discrimination into the Treaty establishing the European Community (TEC). The Treaty of Lisbon (ToL) gave the treaty a new name: the Treaty on the Functioning of the European Union (TFEU). Here is the text of the IGC 2007 (Official Journal 17.12.2007 C 306/50):
33) An Article 16 E shall be inserted, with the wording of Article 13; in paragraph 2, the words ‘when the Council adopts Community’ shall be replaced by ‘the European Parliament and the Council, acting in accordance with the ordinary legislative procedure, may adopt the basic principles of the Union's’ and the words at the end of the paragraph ‘it shall act in accordance with the procedure referred to in Article 251’ shall be deleted.
***
The main clue offered by the IGC is ‘the wording of Article 13’, which means that we turn to the current TEC (in the latest consolidated version, together with the TEU, OJ 29.12.2006 C 321 E/48):
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 Zen of consolidation is to let the current text, the horizontal amendments and the express rewording flow together into a harmonious whole. Since the Lisbon Treaty uses one set of numbering, but offers renumbering for ultimate use, we mention both the ToL and the later Article numbers:
Article 16e TFEU (ToL), renumbered Article 19 TFEU
1. Without prejudice to the other provisions of the Treaties and within the limits of the powers conferred by them upon the Union, the Council, acting unanimously in accordance with a special legislative procedure and after obtaining the consent of 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, the European Parliament and the Council, acting in accordance with the ordinary legislative procedure, may adopt the basic principles of the Union's 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.
***
We notice that both paragraphs changed, although the first exclusively by the way of insidious horizontal amendments. Luckily, we can check our result against the ones who have gone before us: the consolidated TFEU versions on offer from the IIEA, the UK’s FCO, Statewatch or Open Europe. The practically minded, of course, turn to one of these consolidated versions immediately.
Web addresses and additional information on consolidated language versions of the Lisbon Treaty can be found in my latest general update:
Consolidated Lisbon Treaty Update (16 February 2008)
Then there are two later specific updates:
EU: Complete Dutch consolidated Lisbon Treaty (23 February 2008)
EU Lisbon Treaty: Ratification and consolidation in Finland (24 February 2008)
***
Although the Treaty of Lisbon amends the current treaties, the general purpose of the IGC 2007 was to enact at least the institutional innovations of the IGC 2004, if the Mandate did not stipulate otherwise.
Substantially, even if not formally, the two preceding stages are therefore of interest to the student of EU law and politics.
The European Convention, chaired by Valéry Giscard d’Estaing, proposed the following Article III-8 in the draft Treaty establishing a Constitution for Europe, Part III The policies and functioning of the Union, Title II Non-discrimination and citizenship (OJ 18.7.2003 C 169/29-30):
Article III-8 Draft Constitution
1. Without prejudice to the other provisions of the Constitution and within the limits of the powers conferred by it upon the Union, a European law or framework law of the Council of Ministers may establish the measures needed to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation. The Council of Ministers shall act unanimously after obtaining the consent of the European Parliament.
2. European laws or framework laws may establish basic principles for Union incentive measures and define such incentive measures, to support action taken by Member States, excluding any harmonisation of their laws and regulations.
***
The IGC 2004 agreed on the following wording, in Part III The policies and functioning of the Union, Title II Non-discrimination and citizenship, Article III-124 (OJ 16.12.2004 C 310/56):
Article III-124 Constitution
1. Without prejudice to the other provisions of the Constitution and within the limits of the powers assigned by it to the Union, a European law or framework law of the Council may establish the measures needed to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation. The Council shall act unanimously after obtaining the consent of the European Parliament.
2. By way of derogation from paragraph 1, European laws or framework laws may establish basic principles for Union incentive measures and define such measures, to support action taken by Member States in order to contribute to the achievement of the objectives referred to in paragraph 1, excluding any harmonisation of their laws and regulations.
***
The Convention introduced the ‘consent’ of the European Parliament instead of mere consultation as in the current 13(1) TEC. This was taken up in the Constitution and in the Lisbon Treaty, although the real dampener of expectations is that there has been no movement on the requirement of unanimity in the Council for action (measures).
The second paragraph, on incentive measures (supporting action) already adopted under the co-decision procedure, was given a somewhat strange form by the Convention, to ‘establish basic principles for Union incentive measures and define such incentive measures’ instead of adopting them, and the Constitution essentially followed in its footsteps.
Even odder is the wording of paragraph 2 of the Lisbon Treaty, when the European Parliament and the Council, acting in accordance with the ordinary legislative procedure ‘may adopt the basic principles of the Union's incentive measures’. If only basic principles can be adopted, what happens to the needed concrete measures?
***
The principle of non-discrimination is abundantly represented in the amended treaties. Some examples:
Article 1a TEU (ToL), renumbered Article 2 TEU, with non-discrimination as a value common to the Member States.
Article 2 TEU (ToL), renumbered Article 3 TEU, with the aim of the Union to combat social exclusion and discrimination.
Article 5b TFEU (ToL), renumbered Article 10 TFEU, with the aim to combat discrimination when defining and implementing Union policies. The “sister” of Article 16e (new 19) we studied today, and therefore rendered here in full to refresh our memories:
“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.”
Article 16d TFEU (ToL), renumbered Article 18 TFEU, prohibiting discrimination on grounds of nationality, where measures can be adopted according to the ordinary legislative procedure.
Article 16e TFEU (ToL), renumbered Article 19 TFEU, the various stages of which we have studied in this post, on action to combat discrimination and on basic principles for incentive measures.
Article 30 TFEU (ToL), renumbered Article 36 TFEU, on discrimination or a disguised restriction on trade between Member States.
Article 31 TFEU (ToL), renumberd Article 37 TFEU, on discrimination regarding the conditions under which goods are procured and marketed between nationals of Member States.
Article 34 TFEU (ToL), renumbered Article 40 TFEU, on the prohibition of any discrimination between producers or consumers within the Union concerning the common agricultural market organisation.
Article 39 TFEU (ToL), renumbered Article 45 TFEU, on the prohibition against discrimination based on nationality between workers in the context of free movement.
Article 58 TFEU (ToL), renumbered Article 65 TFEU, which prohibits arbitrary discrimination or disguised restrictions on the free movement of capital and payments.
Article 75 TFEU (ToL), renumbered Article 95 TFEU, which prohibits discrimination in the case of transport within the Union.
Article 87 TFEU (ToL), renumbered Article 107, which allows, as compatible with the internal market, state aid having a social character, granted to individual consumers, if granted without discrimination related to the origin of the products concerned.
Article 94 TFEU (ToL), renumbered Article 114 TFEU, with the prohibition of national provisions as means of arbitrary discrimination or a disguised restriction on trade between Member States, within the context of approximation (harmonisation) of the laws of the member states.
Article 141 TFEU (ToL), renumbered Article 157 TFEU, on equal pay without discrimination based on sex.
Article 184 TFEU (ToL), renumbered Article 200 TFEU, prohibiting direct or indirect discrimination between imports from various Member States when introducing or changing customs duties on goods imported into the associated overseas countries and territories.
Article 188j TFEU (ToL), renumbered Article 214 TFEU, with non-discrimination as a principle of humanitarian aid operations.
Article 280a TFEU (ToL), renumbered Article 326 TFEU, which requires that enhanced cooperation complies with the Treaties and Union law, and that it does not undermine the internal market or economic, social and territorial cohesion and that it shall not constitute a barrier to or discrimination in trade between Member States or distort competition between them.
***
The listing shows us that there are two main contexts and groups of anti-discriminatory provisions in the EU treaties:
We have prohibitions, action to combat and incentive measures concerning discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation.
The second group is related to the internal market, meant to function as if there were no national borders between the member states.
Another question worth mentioning is the distinction between prohibitions of discrimination and active measures to mitigate evils, and the relative merits of these approaches.
***
Since today’s article regarded the legal basis for action to combat discrimination and for adopting basic principles of the Union's incentive measures, we conclude with suggested reading for those who want to know what the European Community (Union) actually does.
The Commission’s DG Employment, Social Affairs & Equal Opportunities has a web page titled Action against discrimination, Civil Society:
http://ec.europa.eu/employment_social/fundamental_rights/index_en.htm
News and links are on offer to the interested.
Ralf Grahn
Tuesday, 4 March 2008
EU TFEU: Nationality and non-discrimination
The declaration by the French foreign minister Robert Schuman on 9 May 1950 started the ongoing quest to build Europe “through concrete achievements which first create a de facto solidarity”.
Already the Treaty establishing the European Coal and Steel Community (ECSC) prohibited discriminating practices (Article 4).
Since the then Article 7 of the Treaty establishing the European Economic Community (EEC), non-discrimination on the grounds of nationality has been a fundamental principle of the common market, enriched by the landmark decisions of the European Court of Justice.
Today, the prohibition of discrimination on grounds of nationality is found in Article 12 of the Treaty establishing the European Community, but achieving the mindset expressed by ‘de facto solidarity’ is a never ending challenge for both national governments and citizens.
***
We start to look at Part Two of the Treaty establishing the European Community (TEC), renamed the Treaty on the Functioning of the European Union (TFEU). In the Treaty of Lisbon (ToL) the intergovernmental conference (IGC 2007) gave Part Two a new headline: Non-discrimination and citizenship of the Union (adding ‘Non-discrimination and’). See Official Journal (OJ) 17.12.2007 C 306/50:
NON-DISCRIMINATION AND CITIZENSHIP
31) The heading of Part Two shall be replaced by the following heading: ‘NON-DISCRIMINATION AND CITIZENSHIP OF THE UNION’.
32) An Article 16 D shall be inserted, with the wording of Article 12.
***
We are sent scurrying for Article 12 TEC, currently in Part One, Principles. The provision can be found in the latest consolidated version of the present TEU and TEC, in 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.
***
After the obligatory horizontal amendments, we have the text of the Lisbon Treaty provision before our eyes:
Part Two – Non-discrimination and citizenship of the Union
Article 16d TFEU (ToL), after renumbering Article 18 TFEU
Within the scope of application of the Treaties, and without prejudice to any special provisions contained therein, any discrimination on grounds of nationality shall be prohibited.
The European Parliament and the Council, acting in accordance with the ordinary legislative procedure, may adopt rules designed to prohibit such discrimination.
***
The European Convention proposed to give the fundamental principle of non-discrimination on grounds of nationality the visibility it deserved by placing the provision in Article I-4(2) of Part I, Title I Definition and objectives of the Union, of the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/8):
Article I-4 Draft Constitution
Fundamental freedoms and non-discrimination
1. Free movement of persons, goods, services and capital, and freedom of establishment shall be guaranteed within and by the Union, in accordance with the provisions of the Constitution.
2. In the field of application of the Constitution, and without prejudice to any of its specific provisions, any discrimination on grounds of nationality shall be prohibited.
***
Article III-7 of the draft Constitution contained the basis for legislation (OJ 18.7.2003 C 169/29):
TITLE II
NON-DISCRIMINATION AND CITIZENSHIP
Article III-7 Draft Constitution
European laws or framework laws may lay down rules to prohibit discrimination on grounds of nationality as referred to in Article I-4.
***
The IGC 2004 followed the same approach in the Treaty establishing a Constitution for Europe, where Title I Definition and objectives of the Union, of Part I, contained Article I-4(2) (OJ 16.12.2004 C 310/12):
Article I-4 Constitution
Fundamental freedoms and non-discrimination
1. The free movement of persons, services, goods and capital, and freedom of establishment shall
be guaranteed within and by the Union, in accordance with the Constitution.
2. Within the scope of the Constitution, and without prejudice to any of its specific provisions, any discrimination on grounds of nationality shall be prohibited.
***
The legal basis is found in Article III-123 of the Constitutional Treaty (OJ 16.12.2004 C 310/56):
TITLE II
NON-DISCRIMINATION AND CITIZENSHIP
Article III-123 Constitution
European laws or framework laws may lay down rules to prohibit discrimination on grounds of nationality as referred to in Article I-4(2).
***
A few remarks by your glossator:
The position of the prohibition of discrimination on grounds of nationality may be less dignified in the Lisbon Treaty than in the Constitution, but the fundamental principle is preserved and its scope widens from the ‘Community’ to encompass the treaties as a whole.
Specific provisions against discrimination and the (gradual) establishment of EU citizenship as a fundamental status for equal rights bolster the classical non-discrimination requirement on the basis of nationality.
The ordinary legislative procedure applies, replacing the co-decision procedure (Article 251 TEC), although many problems relate to partial practices rather than lack of legislation.
***
An introduction to the inventiveness concerning discrimination on grounds of nationality is offered, free of charge, by the ECJ’s Digest of case-law (available only in French).
Ralf Grahn
Sources:
Declaration of 9 May 1950 (the Schuman declaration)
http://europa.eu/abc/symbols/9-may/decl_en.htm
European Court of Justice: Répertoire de jurisprudence communautaire (Digest of Community case-law), B – The European Community (EEC/EC), B-01.05 Interdiction de discrimination en raison de la nationalité (Derniére mise à jour au 02/03/2008), 83 summaries
http://curia.europa.eu/common/recdoc/repertoire_jurisp/bull_cee/data/index_B-01_05.htm
Already the Treaty establishing the European Coal and Steel Community (ECSC) prohibited discriminating practices (Article 4).
Since the then Article 7 of the Treaty establishing the European Economic Community (EEC), non-discrimination on the grounds of nationality has been a fundamental principle of the common market, enriched by the landmark decisions of the European Court of Justice.
Today, the prohibition of discrimination on grounds of nationality is found in Article 12 of the Treaty establishing the European Community, but achieving the mindset expressed by ‘de facto solidarity’ is a never ending challenge for both national governments and citizens.
***
We start to look at Part Two of the Treaty establishing the European Community (TEC), renamed the Treaty on the Functioning of the European Union (TFEU). In the Treaty of Lisbon (ToL) the intergovernmental conference (IGC 2007) gave Part Two a new headline: Non-discrimination and citizenship of the Union (adding ‘Non-discrimination and’). See Official Journal (OJ) 17.12.2007 C 306/50:
NON-DISCRIMINATION AND CITIZENSHIP
31) The heading of Part Two shall be replaced by the following heading: ‘NON-DISCRIMINATION AND CITIZENSHIP OF THE UNION’.
32) An Article 16 D shall be inserted, with the wording of Article 12.
***
We are sent scurrying for Article 12 TEC, currently in Part One, Principles. The provision can be found in the latest consolidated version of the present TEU and TEC, in 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.
***
After the obligatory horizontal amendments, we have the text of the Lisbon Treaty provision before our eyes:
Part Two – Non-discrimination and citizenship of the Union
Article 16d TFEU (ToL), after renumbering Article 18 TFEU
Within the scope of application of the Treaties, and without prejudice to any special provisions contained therein, any discrimination on grounds of nationality shall be prohibited.
The European Parliament and the Council, acting in accordance with the ordinary legislative procedure, may adopt rules designed to prohibit such discrimination.
***
The European Convention proposed to give the fundamental principle of non-discrimination on grounds of nationality the visibility it deserved by placing the provision in Article I-4(2) of Part I, Title I Definition and objectives of the Union, of the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/8):
Article I-4 Draft Constitution
Fundamental freedoms and non-discrimination
1. Free movement of persons, goods, services and capital, and freedom of establishment shall be guaranteed within and by the Union, in accordance with the provisions of the Constitution.
2. In the field of application of the Constitution, and without prejudice to any of its specific provisions, any discrimination on grounds of nationality shall be prohibited.
***
Article III-7 of the draft Constitution contained the basis for legislation (OJ 18.7.2003 C 169/29):
TITLE II
NON-DISCRIMINATION AND CITIZENSHIP
Article III-7 Draft Constitution
European laws or framework laws may lay down rules to prohibit discrimination on grounds of nationality as referred to in Article I-4.
***
The IGC 2004 followed the same approach in the Treaty establishing a Constitution for Europe, where Title I Definition and objectives of the Union, of Part I, contained Article I-4(2) (OJ 16.12.2004 C 310/12):
Article I-4 Constitution
Fundamental freedoms and non-discrimination
1. The free movement of persons, services, goods and capital, and freedom of establishment shall
be guaranteed within and by the Union, in accordance with the Constitution.
2. Within the scope of the Constitution, and without prejudice to any of its specific provisions, any discrimination on grounds of nationality shall be prohibited.
***
The legal basis is found in Article III-123 of the Constitutional Treaty (OJ 16.12.2004 C 310/56):
TITLE II
NON-DISCRIMINATION AND CITIZENSHIP
Article III-123 Constitution
European laws or framework laws may lay down rules to prohibit discrimination on grounds of nationality as referred to in Article I-4(2).
***
A few remarks by your glossator:
The position of the prohibition of discrimination on grounds of nationality may be less dignified in the Lisbon Treaty than in the Constitution, but the fundamental principle is preserved and its scope widens from the ‘Community’ to encompass the treaties as a whole.
Specific provisions against discrimination and the (gradual) establishment of EU citizenship as a fundamental status for equal rights bolster the classical non-discrimination requirement on the basis of nationality.
The ordinary legislative procedure applies, replacing the co-decision procedure (Article 251 TEC), although many problems relate to partial practices rather than lack of legislation.
***
An introduction to the inventiveness concerning discrimination on grounds of nationality is offered, free of charge, by the ECJ’s Digest of case-law (available only in French).
Ralf Grahn
Sources:
Declaration of 9 May 1950 (the Schuman declaration)
http://europa.eu/abc/symbols/9-may/decl_en.htm
European Court of Justice: Répertoire de jurisprudence communautaire (Digest of Community case-law), B – The European Community (EEC/EC), B-01.05 Interdiction de discrimination en raison de la nationalité (Derniére mise à jour au 02/03/2008), 83 summaries
http://curia.europa.eu/common/recdoc/repertoire_jurisp/bull_cee/data/index_B-01_05.htm
Monday, 3 March 2008
EU TFEU: Churches and non-confessional organisations
Can a member state of the European Union contemplate the death penalty for apostasy, the renunciation of a religious faith, since the relations between state and church are exclusive competences of the member states?
We take a look at what the Lisbon Treaty has to say about state powers in religious matters, and we outline the limits of these competences.
Europe is no Iran.
***
The intergovernmental conference (IGC 2007) inserted a new Article 16c on churches and religions into the Treaty of Lisbon (ToL), in Part One, Principles, Title II, Provisions having general application, of the Treaty establishing the European Community (TEC), renamed the Treaty on the Functioning of the European Union (TFEU). See the Official Journal (OJ) 17.12.2007 C 306/50:
30) The following new Article 16 C shall be inserted:
Article 16c TFEU (ToL), after renumbering Article 17 TFEU
1. The Union respects and does not prejudice the status under national law of churches and religious associations or communities in the Member States.
2. The Union equally respects the status under national law of philosophical and non-confessional organisations.
3. Recognising their identity and their specific contribution, the Union shall maintain an open, transparent and regular dialogue with these churches and organisations.
***
There is no corresponding provision in the current treaties, but the first two paragraphs derive from Declaration 11 attached to the Treaty of Amsterdam. Available at:
http://europa.eu.int/eur-lex/lex/en/treaties/dat/11997D/htm/11997D.html#0133040028
11. Declaration on the status of churches and non-confessional organisations
The European Union respects and does not prejudice the status under national law of churches and religious associations or communities in the Member States.
The European Union equally respects the status of philosophical and non-confessional organisations.
***
The European Convention debated the place of God, churches and religion in the draft Treaty establishing a Constitution for Europe, and ended up with the following provision in Part I, Title VI The democratic life of the Union (OJ 18.7.2003 C 169/20):
Article I-51 Draft Constitution
Status of churches and non-confessional organisations
1. The Union respects and does not prejudice the status under national law of churches and religious associations or communities in the Member States.
2. The Union equally respects the status of philosophical and non-confessional organisations.
3. Recognising their identity and their specific contribution, the Union shall maintain an open, transparent and regular dialogue with these churches and organisations.
***
We can see that the two paragraphs of Declaration 11 were numbered, but inserted ‘verbatim’. The third paragraph, on a regular dialogue with churches as well as religious and non-confessional organisations was new.
The IGC 2004 continued the discussion on the place of God and religion in the secular Treaty establishing a Constitution for Europe, but as in the draft Constitution, there was no specific mention of God. The Constitution began its Preamble with the following referral:
DRAWING INSPIRATION from the cultural, religious and humanist inheritance of Europe, from which have developed the universal values of the inviolable and inalienable rights of the human person, freedom, democracy, equality and the rule of law, …
***
As you can see, the Constitutional Treaty took over the provision of the draft Constitution, in Part I, Title VI The democratic life of the Union, adding ‘under national law’ to the second paragraph (OJ 16.12.2004 C 310/36):
Article I-52 Constitution
Status of churches and non-confessional organisations
1. The Union respects and does not prejudice the status under national law of churches and
religious associations or communities in the Member States.
2. The Union equally respects the status under national law of philosophical and non-confessional
organisations.
3. Recognising their identity and their specific contribution, the Union shall maintain an open,
transparent and regular dialogue with these churches and organisations.
***
These provisions of the Lisbon Treaty TFEU and the Constitution are identical.
If God is universal, the relations between states and churches are manifold. The European Union recognises that these relations are within the exclusive competence of the member states.
***
On the other hand, the powers of the member states may be exclusive, but not without limits. All the EU members are members of the Council of Europe, and they are parties to the pan-European Convention for the Protection of Human Rights and Fundamental Freedoms, available at:
www.coe.int
The Charter of Fundamental Rights of the European Union expressly recognises the right to freedom of thought, conscience and religion. This right includes the freedom to change religion or belief (OJ 14.12.2007 C 303/4):
Article 10 Charter
Freedom of thought, conscience and religion
1. Everyone has the right to freedom of thought, conscience and religion. This right includes freedom to change religion or belief and freedom, either alone or in community with others and in public or in private, to manifest religion or belief, in worship, teaching, practice and observance.
2. The right to conscientious objection is recognised, in accordance with the national laws governing the exercise of this right.
***
The first stop for the background of Charter provisions are the Explanations relating to the Charter of Fundamental Rights (OJ 14.12.2007 C 303/21):
Explanation on Article 10 — Freedom of thought, conscience and religion
The right guaranteed in paragraph 1 corresponds to the right guaranteed in Article 9 of the ECHR and, in accordance with Article 52(3) of the Charter, has the same meaning and scope. Limitations must therefore respect Article 9(2) of the Convention, which reads as follows: ‘Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.’
The right guaranteed in paragraph 2 corresponds to national constitutional traditions and to the development of national legislation on this issue.
***
Article 2 of the Charter protects the right to life, which includes the abolishment of the death penalty (OJ 14.12.2007 C 303/3):
Article 2 Charter
Right to life
1. Everyone has the right to life.
2. No one shall be condemned to the death penalty, or executed.
***
The European Union, which sees its values as universal, has predictably condemned the Iranian Parliament’s draft criminal code, which would sanction apostasy with the death penalty. See the CFSP Statement on the web site of the Slovenian Presidency of the EU Council, “Declaration by the Presidency on behalf of the EU concerning the consideration of a draft Penal code in the Islamic Republic of Iran”:
http://www.eu2008.si/en/News_and_Documents/CFSP_Statements/February/0225MZZiran.html
The Iranian draft code contradicts two fundamental values of the European Union (and the Council of Europe): right to freedom of thought, conscience and religion, including the freedom to change religion or belief, and the ban on the death penalty, seen as barbarous and cruel.
The leadership of Iran has shown little concern for human rights and international public opinion, but some reader might be interested enough to sort out Iran’s commitments under international law, including conventions on human rights.
***
The amended Treaty on European Unionof (TEU), Article 8b TEU (ToL), renumbered Article 11 TEU, already provides for exchanges of views, dialogue and consultations with citizens, representative associations, civil society and parties concerned (OJ 17.12.2007 C 306/14):
Article 8b TEU (ToL), after renumbering Article 11 TEU
1. The institutions shall, by appropriate means, give citizens and representative associations the opportunity to make known and publicly exchange their views in all areas of Union action.
2. The institutions shall maintain an open, transparent and regular dialogue with representative associations and civil society.
3. The European Commission shall carry out broad consultations with parties concerned in order to ensure that the Union's actions are coherent and transparent.
4. Not less than one million citizens who are nationals of a significant number of Member States may take the initiative of inviting the European Commission, within the framework of its powers, to submit any appropriate proposal on matters where citizens consider that a legal act of the Union is required for the purpose of implementing the Treaties.
The procedures and conditions required for such a citizens' initiative shall be determined in accordance with the first paragraph of Article 21 of the Treaty on the Functioning of the European Union.
***
The general TEU clause on dialogue leaves the EU institutions wide scope to select the issues and participants, whereas the specific TFEU provision on dialogue with religious and non-confessional organisations creates an obligation with some minimum content for the institutions.
Ralf Grahn
We take a look at what the Lisbon Treaty has to say about state powers in religious matters, and we outline the limits of these competences.
Europe is no Iran.
***
The intergovernmental conference (IGC 2007) inserted a new Article 16c on churches and religions into the Treaty of Lisbon (ToL), in Part One, Principles, Title II, Provisions having general application, of the Treaty establishing the European Community (TEC), renamed the Treaty on the Functioning of the European Union (TFEU). See the Official Journal (OJ) 17.12.2007 C 306/50:
30) The following new Article 16 C shall be inserted:
Article 16c TFEU (ToL), after renumbering Article 17 TFEU
1. The Union respects and does not prejudice the status under national law of churches and religious associations or communities in the Member States.
2. The Union equally respects the status under national law of philosophical and non-confessional organisations.
3. Recognising their identity and their specific contribution, the Union shall maintain an open, transparent and regular dialogue with these churches and organisations.
***
There is no corresponding provision in the current treaties, but the first two paragraphs derive from Declaration 11 attached to the Treaty of Amsterdam. Available at:
http://europa.eu.int/eur-lex/lex/en/treaties/dat/11997D/htm/11997D.html#0133040028
11. Declaration on the status of churches and non-confessional organisations
The European Union respects and does not prejudice the status under national law of churches and religious associations or communities in the Member States.
The European Union equally respects the status of philosophical and non-confessional organisations.
***
The European Convention debated the place of God, churches and religion in the draft Treaty establishing a Constitution for Europe, and ended up with the following provision in Part I, Title VI The democratic life of the Union (OJ 18.7.2003 C 169/20):
Article I-51 Draft Constitution
Status of churches and non-confessional organisations
1. The Union respects and does not prejudice the status under national law of churches and religious associations or communities in the Member States.
2. The Union equally respects the status of philosophical and non-confessional organisations.
3. Recognising their identity and their specific contribution, the Union shall maintain an open, transparent and regular dialogue with these churches and organisations.
***
We can see that the two paragraphs of Declaration 11 were numbered, but inserted ‘verbatim’. The third paragraph, on a regular dialogue with churches as well as religious and non-confessional organisations was new.
The IGC 2004 continued the discussion on the place of God and religion in the secular Treaty establishing a Constitution for Europe, but as in the draft Constitution, there was no specific mention of God. The Constitution began its Preamble with the following referral:
DRAWING INSPIRATION from the cultural, religious and humanist inheritance of Europe, from which have developed the universal values of the inviolable and inalienable rights of the human person, freedom, democracy, equality and the rule of law, …
***
As you can see, the Constitutional Treaty took over the provision of the draft Constitution, in Part I, Title VI The democratic life of the Union, adding ‘under national law’ to the second paragraph (OJ 16.12.2004 C 310/36):
Article I-52 Constitution
Status of churches and non-confessional organisations
1. The Union respects and does not prejudice the status under national law of churches and
religious associations or communities in the Member States.
2. The Union equally respects the status under national law of philosophical and non-confessional
organisations.
3. Recognising their identity and their specific contribution, the Union shall maintain an open,
transparent and regular dialogue with these churches and organisations.
***
These provisions of the Lisbon Treaty TFEU and the Constitution are identical.
If God is universal, the relations between states and churches are manifold. The European Union recognises that these relations are within the exclusive competence of the member states.
***
On the other hand, the powers of the member states may be exclusive, but not without limits. All the EU members are members of the Council of Europe, and they are parties to the pan-European Convention for the Protection of Human Rights and Fundamental Freedoms, available at:
www.coe.int
The Charter of Fundamental Rights of the European Union expressly recognises the right to freedom of thought, conscience and religion. This right includes the freedom to change religion or belief (OJ 14.12.2007 C 303/4):
Article 10 Charter
Freedom of thought, conscience and religion
1. Everyone has the right to freedom of thought, conscience and religion. This right includes freedom to change religion or belief and freedom, either alone or in community with others and in public or in private, to manifest religion or belief, in worship, teaching, practice and observance.
2. The right to conscientious objection is recognised, in accordance with the national laws governing the exercise of this right.
***
The first stop for the background of Charter provisions are the Explanations relating to the Charter of Fundamental Rights (OJ 14.12.2007 C 303/21):
Explanation on Article 10 — Freedom of thought, conscience and religion
The right guaranteed in paragraph 1 corresponds to the right guaranteed in Article 9 of the ECHR and, in accordance with Article 52(3) of the Charter, has the same meaning and scope. Limitations must therefore respect Article 9(2) of the Convention, which reads as follows: ‘Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.’
The right guaranteed in paragraph 2 corresponds to national constitutional traditions and to the development of national legislation on this issue.
***
Article 2 of the Charter protects the right to life, which includes the abolishment of the death penalty (OJ 14.12.2007 C 303/3):
Article 2 Charter
Right to life
1. Everyone has the right to life.
2. No one shall be condemned to the death penalty, or executed.
***
The European Union, which sees its values as universal, has predictably condemned the Iranian Parliament’s draft criminal code, which would sanction apostasy with the death penalty. See the CFSP Statement on the web site of the Slovenian Presidency of the EU Council, “Declaration by the Presidency on behalf of the EU concerning the consideration of a draft Penal code in the Islamic Republic of Iran”:
http://www.eu2008.si/en/News_and_Documents/CFSP_Statements/February/0225MZZiran.html
The Iranian draft code contradicts two fundamental values of the European Union (and the Council of Europe): right to freedom of thought, conscience and religion, including the freedom to change religion or belief, and the ban on the death penalty, seen as barbarous and cruel.
The leadership of Iran has shown little concern for human rights and international public opinion, but some reader might be interested enough to sort out Iran’s commitments under international law, including conventions on human rights.
***
The amended Treaty on European Unionof (TEU), Article 8b TEU (ToL), renumbered Article 11 TEU, already provides for exchanges of views, dialogue and consultations with citizens, representative associations, civil society and parties concerned (OJ 17.12.2007 C 306/14):
Article 8b TEU (ToL), after renumbering Article 11 TEU
1. The institutions shall, by appropriate means, give citizens and representative associations the opportunity to make known and publicly exchange their views in all areas of Union action.
2. The institutions shall maintain an open, transparent and regular dialogue with representative associations and civil society.
3. The European Commission shall carry out broad consultations with parties concerned in order to ensure that the Union's actions are coherent and transparent.
4. Not less than one million citizens who are nationals of a significant number of Member States may take the initiative of inviting the European Commission, within the framework of its powers, to submit any appropriate proposal on matters where citizens consider that a legal act of the Union is required for the purpose of implementing the Treaties.
The procedures and conditions required for such a citizens' initiative shall be determined in accordance with the first paragraph of Article 21 of the Treaty on the Functioning of the European Union.
***
The general TEU clause on dialogue leaves the EU institutions wide scope to select the issues and participants, whereas the specific TFEU provision on dialogue with religious and non-confessional organisations creates an obligation with some minimum content for the institutions.
Ralf Grahn
Sunday, 2 March 2008
EU TFEU: Personal data protection
Protection of personal data looks nice on paper for the citizen of the European Union, but what are the principles worth in practice when assailed by the US administration’s ‘war on terror’, unscrupulous ICT business practices beyond the reach of EU jurisdiction, or the EU member states’ common foreign and security concerns as well as their combat against terrorism and crime?
The first step towards answers is to get acquainted with the basic provisions at the EU treaty level, both the current ones and those proposed by the Treaty of Lisbon.
***
In the Treaty of Lisbon (ToL) the intergovernmental conference (IGC 2007) inserts a provision on personal data protection in the Treaty establishing the European Community (TEC), to be called the Treaty on the Functioning of the European Union (TFEU). The Article is placed in TFEU Part One, Title II Provisions having general application. See Official Journal (OJ) 17.12.2007 C 306/50:
29) An Article 16 B shall be inserted, replacing Article 286:
Article 16b TFEU (ToL), when renumbered Article 16 TFEU
1. Everyone has the right to the protection of personal data concerning them.
2. The European Parliament and the Council, acting in accordance with the ordinary legislative procedure, shall lay down the rules relating to the protection of individuals with regard to the processing of personal data by Union institutions, bodies, offices and agencies, and by the Member States when carrying out activities which fall within the scope of Union law, and the rules relating to the free movement of such data. Compliance with these rules shall be subject to the control of independent authorities.
The rules adopted on the basis of this Article shall be without prejudice to the specific rules laid down in Article 25a of the Treaty on European Union.
***
Comparing the Lisbon Treaty provision, we start with the existing Article 286 TEC being replaced (in the latest consolidated version of the current TEU and TEC, OJ 29.12.2006 C 321 E/171):
Article 286 TEC
1. From 1 January 1999, Community acts on the protection of individuals with regard to the processing of personal data and the free movement of such data shall apply to the institutions and bodies set up by, or on the basis of, this Treaty.
2. Before the date referred to in paragraph 1, the Council, acting in accordance with the procedure referred to in Article 251, shall establish an independent supervisory body responsible for monitoring the application of such Community acts to Community institutions and bodies and shall adopt any other relevant provisions as appropriate.
***
The European Convention proposed the following Article I-50 under Title VI The democratic life of the Union of the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/20):
Article I-50 Draft Constitution
Protection of personal data
1. Everyone has the right to the protection of personal data concerning him or her.
2. A European law shall lay down the rules relating to the protection of individuals with regard to the processing of personal data by Union Institutions, bodies and agencies, and by the Member States when carrying out activities which come under the scope of Union law, and the rules relating to the free movement of such data. Compliance with these rules shall be subject to the control of an independent authority.
***
The IGC 2004 took up the proposal of the European Convention, and in the Treaty establishing a Constitution for Europe we find Article I-51, under Title VI The democratic life of the Union (OJ 16.12.2004 C 310/36):
Article I-51 Constitution
Protection of personal data
1. Everyone has the right to the protection of personal data concerning him or her.
2. European laws or framework laws shall lay down the rules relating to the protection of individuals with regard to the processing of personal data by Union institutions, bodies, offices and agencies, and by the Member States when carrying out activities which fall within the scope of Union law, and the rules relating to the free movement of such data. Compliance with these rules shall be subject to the control of independent authorities.
***
The IGC 2004 wanted to make clear that national security may override personal data protection sensitivities, and agreed on a declaration (OJ 16.12.2004 C 310/423):
10. Declaration on Article I-51 (Constitution)
The Conference declares that, whenever rules on protection of personal data to be adopted on the basis of Article I-51 could have direct implications for national security, due account will have to be taken of the specific characteristics of the matter. It recalls that the legislation presently applicable (see in particular Directive 95/46/EC) includes specific derogations in this regard.
***
Although the basis for Community legislation exists, the wording of the current TEC is badly dated. The draft Constitution and the Constitution and the TFEU seem to be essentially equal. The Lisbon Treaty follows in their footsteps, but adds a second subparagraph to paragraph 2, with a referral to a new TEU provision we have visited earlier on specific rules concerning Chapter 2 Specific provisions on the common foreign and security policy (OJ 17.12.2007 C 306/31):
Article 25a TEU (ToL), renumbered Article 39 TEU
In accordance with Article 16 B of the Treaty on the Functioning of the European Union and by way of derogation from paragraph 2 thereof, the Council shall adopt a decision laying down the rules relating to the protection of individuals with regard to the processing of personal data by the Member States when carrying out activities which fall within the scope of this Chapter, and the rules relating to the free movement of such data. Compliance with these rules shall be subject to the control of independent authorities.
***
The IGC 2007 added two declarations of relevance here (OJ 17.12.2007 C 306/255). Declaration 20 lays stress on national security, and in substance repeats the text of the IGC 2004 declaration, although the TFEU referral and the new specific CFSP provision have been introduced:
20. Declaration on Article 16 B of the Treaty on the Functioning of the European Union
The Conference declares that, whenever rules on protection of personal data to be adopted on the basis of Article 15a could have direct implications for national security, due account will have to be taken of the specific characteristics of the matter. It recalls that the legislation presently applicable (see in particular Directive 95/46/EC) includes specific derogations in this regard.
***
The other IGC 2007 declaration concerns raises another area of concern for the member states, judicial cooperation in criminal matters and police cooperation:
21. Declaration on the protection of personal data in the fields of judicial cooperation in criminal matters and police cooperation
The Conference acknowledges that specific rules on the protection of personal data and the free movement of such data in the fields of judicial cooperation in criminal matters and police cooperation based on Article 16 B of the Treaty on the Functioning of the European Union may prove necessary because of the specific nature of these fields.
***
Article 8 of the Charter of Fundamental Rights of the European Union provides for the protection of personal data (OJ 14.12.2007 C 303/4):
Article 8 Charter
Protection of personal data
1. Everyone has the right to the protection of personal data concerning him or her.
2. Such data must be processed fairly for specified purposes and on the basis of the consent of the person concerned or some other legitimate basis laid down by law. Everyone has the right of access to data which has been collected concerning him or her, and the right to have it rectified.
3. Compliance with these rules shall be subject to control by an independent authority.
***
The Explanations relating to the Charter of Fundamental Rights traces the Charter provision back to its origins (OJ 14.12.2007 C 303/20):
Explanation on Article 8 — Protection of personal data
This Article has been based on Article 286 of the Treaty establishing the European Community and Directive 95/46/EC of the European Parliament and of the Council on the protection of individuals with regard to the processing of personal data and on the free movement of such data (OJ L 281, 23.11.1995, p. 31) as well as on Article 8 of the ECHR and on the Council of Europe Convention of 28 January 1981 for the Protection of Individuals with regard to Automatic Processing of Personal Data, which has been ratified by all the Member States. Article 286 of the EC Treaty is now replaced by Article 16 of the Treaty on the Functioning of the European Union and Article 39 of the Treaty on European Union. Reference is also made to Regulation (EC) No 45/2001 of the European Parliament and of the Council on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data (OJ L 8, 12.1.2001, p. 1). The above-mentioned Directive and Regulation contain conditions and limitations for the exercise of the right to the protection of personal data.
***
Those who want to dig deeper could start their study of secondary legislation with the European Commission’s web pages on Freedom, Security and Justice, with Data Protection, Legislative documents:
http://ec.europa.eu/justice_home/fsj/privacy/law/index_en.htm
***
The EurActiv 14 February 2008 news story “US air security plans ‘unacceptable’, says EU” on transatlantic tensions and a crumbling EU front is just one topical example of an area, which looks set to engage EU institutions, member state governments, NGOs and courts of justice in the years to come:
http://www.euractiv.com/en/transport/us-air-security-plans-unacceptable-eu/article-170303
Privacy or personal data protection issues concern every citizen of the European Union.
Ralf Grahn
The first step towards answers is to get acquainted with the basic provisions at the EU treaty level, both the current ones and those proposed by the Treaty of Lisbon.
***
In the Treaty of Lisbon (ToL) the intergovernmental conference (IGC 2007) inserts a provision on personal data protection in the Treaty establishing the European Community (TEC), to be called the Treaty on the Functioning of the European Union (TFEU). The Article is placed in TFEU Part One, Title II Provisions having general application. See Official Journal (OJ) 17.12.2007 C 306/50:
29) An Article 16 B shall be inserted, replacing Article 286:
Article 16b TFEU (ToL), when renumbered Article 16 TFEU
1. Everyone has the right to the protection of personal data concerning them.
2. The European Parliament and the Council, acting in accordance with the ordinary legislative procedure, shall lay down the rules relating to the protection of individuals with regard to the processing of personal data by Union institutions, bodies, offices and agencies, and by the Member States when carrying out activities which fall within the scope of Union law, and the rules relating to the free movement of such data. Compliance with these rules shall be subject to the control of independent authorities.
The rules adopted on the basis of this Article shall be without prejudice to the specific rules laid down in Article 25a of the Treaty on European Union.
***
Comparing the Lisbon Treaty provision, we start with the existing Article 286 TEC being replaced (in the latest consolidated version of the current TEU and TEC, OJ 29.12.2006 C 321 E/171):
Article 286 TEC
1. From 1 January 1999, Community acts on the protection of individuals with regard to the processing of personal data and the free movement of such data shall apply to the institutions and bodies set up by, or on the basis of, this Treaty.
2. Before the date referred to in paragraph 1, the Council, acting in accordance with the procedure referred to in Article 251, shall establish an independent supervisory body responsible for monitoring the application of such Community acts to Community institutions and bodies and shall adopt any other relevant provisions as appropriate.
***
The European Convention proposed the following Article I-50 under Title VI The democratic life of the Union of the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/20):
Article I-50 Draft Constitution
Protection of personal data
1. Everyone has the right to the protection of personal data concerning him or her.
2. A European law shall lay down the rules relating to the protection of individuals with regard to the processing of personal data by Union Institutions, bodies and agencies, and by the Member States when carrying out activities which come under the scope of Union law, and the rules relating to the free movement of such data. Compliance with these rules shall be subject to the control of an independent authority.
***
The IGC 2004 took up the proposal of the European Convention, and in the Treaty establishing a Constitution for Europe we find Article I-51, under Title VI The democratic life of the Union (OJ 16.12.2004 C 310/36):
Article I-51 Constitution
Protection of personal data
1. Everyone has the right to the protection of personal data concerning him or her.
2. European laws or framework laws shall lay down the rules relating to the protection of individuals with regard to the processing of personal data by Union institutions, bodies, offices and agencies, and by the Member States when carrying out activities which fall within the scope of Union law, and the rules relating to the free movement of such data. Compliance with these rules shall be subject to the control of independent authorities.
***
The IGC 2004 wanted to make clear that national security may override personal data protection sensitivities, and agreed on a declaration (OJ 16.12.2004 C 310/423):
10. Declaration on Article I-51 (Constitution)
The Conference declares that, whenever rules on protection of personal data to be adopted on the basis of Article I-51 could have direct implications for national security, due account will have to be taken of the specific characteristics of the matter. It recalls that the legislation presently applicable (see in particular Directive 95/46/EC) includes specific derogations in this regard.
***
Although the basis for Community legislation exists, the wording of the current TEC is badly dated. The draft Constitution and the Constitution and the TFEU seem to be essentially equal. The Lisbon Treaty follows in their footsteps, but adds a second subparagraph to paragraph 2, with a referral to a new TEU provision we have visited earlier on specific rules concerning Chapter 2 Specific provisions on the common foreign and security policy (OJ 17.12.2007 C 306/31):
Article 25a TEU (ToL), renumbered Article 39 TEU
In accordance with Article 16 B of the Treaty on the Functioning of the European Union and by way of derogation from paragraph 2 thereof, the Council shall adopt a decision laying down the rules relating to the protection of individuals with regard to the processing of personal data by the Member States when carrying out activities which fall within the scope of this Chapter, and the rules relating to the free movement of such data. Compliance with these rules shall be subject to the control of independent authorities.
***
The IGC 2007 added two declarations of relevance here (OJ 17.12.2007 C 306/255). Declaration 20 lays stress on national security, and in substance repeats the text of the IGC 2004 declaration, although the TFEU referral and the new specific CFSP provision have been introduced:
20. Declaration on Article 16 B of the Treaty on the Functioning of the European Union
The Conference declares that, whenever rules on protection of personal data to be adopted on the basis of Article 15a could have direct implications for national security, due account will have to be taken of the specific characteristics of the matter. It recalls that the legislation presently applicable (see in particular Directive 95/46/EC) includes specific derogations in this regard.
***
The other IGC 2007 declaration concerns raises another area of concern for the member states, judicial cooperation in criminal matters and police cooperation:
21. Declaration on the protection of personal data in the fields of judicial cooperation in criminal matters and police cooperation
The Conference acknowledges that specific rules on the protection of personal data and the free movement of such data in the fields of judicial cooperation in criminal matters and police cooperation based on Article 16 B of the Treaty on the Functioning of the European Union may prove necessary because of the specific nature of these fields.
***
Article 8 of the Charter of Fundamental Rights of the European Union provides for the protection of personal data (OJ 14.12.2007 C 303/4):
Article 8 Charter
Protection of personal data
1. Everyone has the right to the protection of personal data concerning him or her.
2. Such data must be processed fairly for specified purposes and on the basis of the consent of the person concerned or some other legitimate basis laid down by law. Everyone has the right of access to data which has been collected concerning him or her, and the right to have it rectified.
3. Compliance with these rules shall be subject to control by an independent authority.
***
The Explanations relating to the Charter of Fundamental Rights traces the Charter provision back to its origins (OJ 14.12.2007 C 303/20):
Explanation on Article 8 — Protection of personal data
This Article has been based on Article 286 of the Treaty establishing the European Community and Directive 95/46/EC of the European Parliament and of the Council on the protection of individuals with regard to the processing of personal data and on the free movement of such data (OJ L 281, 23.11.1995, p. 31) as well as on Article 8 of the ECHR and on the Council of Europe Convention of 28 January 1981 for the Protection of Individuals with regard to Automatic Processing of Personal Data, which has been ratified by all the Member States. Article 286 of the EC Treaty is now replaced by Article 16 of the Treaty on the Functioning of the European Union and Article 39 of the Treaty on European Union. Reference is also made to Regulation (EC) No 45/2001 of the European Parliament and of the Council on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data (OJ L 8, 12.1.2001, p. 1). The above-mentioned Directive and Regulation contain conditions and limitations for the exercise of the right to the protection of personal data.
***
Those who want to dig deeper could start their study of secondary legislation with the European Commission’s web pages on Freedom, Security and Justice, with Data Protection, Legislative documents:
http://ec.europa.eu/justice_home/fsj/privacy/law/index_en.htm
***
The EurActiv 14 February 2008 news story “US air security plans ‘unacceptable’, says EU” on transatlantic tensions and a crumbling EU front is just one topical example of an area, which looks set to engage EU institutions, member state governments, NGOs and courts of justice in the years to come:
http://www.euractiv.com/en/transport/us-air-security-plans-unacceptable-eu/article-170303
Privacy or personal data protection issues concern every citizen of the European Union.
Ralf Grahn
Saturday, 1 March 2008
EU TFEU: Openness, transparency and access to documents
It looks like a contradiction in terms: The intergovernmental conference, in secret, produces inaccessible amending treaties for the European Union, but meant to improve good governance, legislation in public, the participation of civil society, as well as openness and transparency.
The Council then refuses to publish readable, consolidated versions of the Lisbon Treaty, to further underline the chasm between principles and practices.
Whatever it is, I fear European leaders even when they bring gifts.
***
Let nobody deny the intergovernmental conference a keen sense of humour. In the Treaty of Lisbon (ToL) the IGC 2007 documented its determination to promote good governance, the participation of civil society, openness and transparency as follows (Official Journal 17.12.2007 C 306/49-50):
28) An Article 16 A shall be inserted, with the wording of Article 255; it shall be amended as
follows:
(a) paragraph 1 shall be preceded by the following text, paragraph 1 being renumbered 3 and paragraphs 2 and 3 becoming subparagraphs:
‘1. In order to promote good governance and ensure the participation of civil society, the Union institutions, bodies, offices and agencies shall conduct their work as openly as possible.
2. The European Parliament shall meet in public, as shall the Council when considering and voting on a draft legislative act.’;
(b) in paragraph 1, renumbered 3, which shall become the first subparagraph of paragraph 3, a change shall be made to the French which does not concern the English version. The words ‘European Parliament, Council and Commission documents’ shall be replaced by ‘documents of the Union institutions, bodies, offices and agencies, whatever their medium’ and the words ‘paragraphs 2 and 3’ shall be replaced by the words ‘this paragraph’;
(c) in paragraph 2, which shall become the second subparagraph of paragraph 1, renumbered 3, the words ‘by means of regulations’ shall be inserted after ‘shall be determined by the Council’ and the words ‘within two years of the entry into force of the Treaty of Amsterdam’ shall be deleted;
(d) in paragraph 3, which shall become the third subparagraph of paragraph 1, renumbered 3, the words ‘referred to above shall elaborate’ shall be replaced by ‘shall ensure that its proceedings are transparent and shall elaborate’, the words ‘, in accordance with the regulations referred to in the second subparagraph’ shall be inserted at the end of the subparagraph and the following two new subparagraphs shall be added:
‘The Court of Justice of the European Union, the European Central Bank and the European Investment Bank shall be subject to this paragraph only when exercising their administrative tasks.
The European Parliament and the Council shall ensure publication of the documents relating to the legislative procedures under the terms laid down by the regulation referred to in the second subparagraph.’.
***
The amended Article is based on of the current Article 255 of the Treaty establishing the European Community (TEC), so the missing link is found in the latest consolidated version of the treaties in OJ 29.12.2006 C 321 E/156-157:
Article 255 TEC
1. Any citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, shall have a right of access to European Parliament, Council and Commission documents, subject to the principles and the conditions to be defined in accordance with paragraphs 2 and 3.
2. General principles and limits on grounds of public or private interest governing this right of access to documents shall be determined by the Council, acting in accordance with the procedure referred to in Article 251 within two years of the entry into force of the Treaty of Amsterdam.
3. Each institution referred to above shall elaborate in its own Rules of Procedure specific provisions regarding access to its documents.
***
A few moments of happy tinkering are needed to open up the noble intentions of the IGC 2007, and to produce a consolidated version of the new Article 16a of the Treaty on the Functioning of the European Union (TFEU ToL). Under Part One Principles, Title II Provisions having general application, we should have the following new or amended provision, although it is extremely easy to miss a horizontal amendment or to make some other mistake:
Article 16a TFEU (ToL), after renumbering Article 15 TFEU
1. In order to promote good governance and ensure the participation of civil society, the Union institutions, bodies, offices and agencies shall conduct their work as openly as possible.
2. The European Parliament shall meet in public, as shall the Council when considering and voting on a draft legislative act.
3. Any citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, shall have a right of access to documents of the Union institutions, bodies, offices and agencies, whatever their medium, subject to the principles and the conditions to be defined in accordance with this paragraph.
General principles and limits on grounds of public or private interest governing this right of access to documents shall be determined by the European Parliament and the Council by means of regulations, acting in accordance with the ordinary legislative procedure.
Each institution, body, office or agency shall ensure that its proceedings are transparent and shall elaborate in its own Rules of Procedure specific provisions regarding access to its documents, in accordance with the regulations referred to in the second subparagraph.
The Court of Justice of the European Union, the European Central Bank and the European Investment Bank shall be subject to this paragraph only when exercising their administrative tasks.
The European Parliament and the Council shall ensure publication of the documents relating to the legislative procedures under the terms laid down by the regulation referred to in the second subparagraph.
***
The European Convention, in Part I, Title VI The democratic life of the Union, proposed the following Article I-49 of the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/20):
Article 49 Draft Constitution
Transparency of the proceedings of Union Institutions
1. In order to promote good governance and ensure the participation of civil society, the Union Institutions, bodies and agencies shall conduct their work as openly as possible.
2. The European Parliament shall meet in public, as shall the Council of Ministers when examining and adopting a legislative proposal.
3. Any citizen of the Union, and any natural or legal person residing or having its registered office in a Member State shall have a right of access to documents of the Union Institutions, bodies and agencies in whatever form they are produced, in accordance with the conditions laid down in Part III.
4. A European law shall lay down the general principles and limits which, on grounds of public or private interest, govern the right of access to such documents.
5. Each Institution, body or agency referred to in paragraph 3 shall determine in its own rules of procedure specific provisions regarding access to its documents, in accordance with the European law referred to in paragraph 4.
***
In addition, Article III-305 of the draft Constitution, under Part III The policies and functioning of the Union, Title VI The functioning of the Union, Section 4 Provisions common to Union institutions, bodies and agencies, is of interest (OJ 18.7.2003 C 169/85):
Article III-305 Draft Constitution
1. The Institutions, bodies and agencies of the Union shall recognise the importance of transparency in their work and shall, in application of Article I-49, lay down in their rules of procedure the specific provisions for public access to documents. The Court of Justice and the European Central Bank shall be subject to the provisions of Article I-49(3) when exercising their administrative tasks.
2. The European Parliament and the Council of Ministers shall ensure publication of the documents relating to the legislative procedures.
***
For easy comparison we take retrieve the main corresponding provisions of the Treaty establishing a Constitution for Europe. First, in Part I, Title VI The democratic life of the Union, Article I-50 (OJ 16.12.2004 C 310/35):
Article I-50 Constitution
Transparency of the proceedings of Union institutions, bodies, offices and agencies
1. In order to promote good governance and ensure the participation of civil society, the Union institutions, bodies, offices and agencies shall conduct their work as openly as possible.
2. The European Parliament shall meet in public, as shall the Council when considering and voting on a draft legislative act.
3. Any citizen of the Union, and any natural or legal person residing or having its registered office in a Member State shall have, under the conditions laid down in Part III, a right of access to documents of the Union institutions, bodies, offices and agencies, whatever their medium.
European laws shall lay down the general principles and limits which, on grounds of public or private interest, govern the right of access to such documents.
4. Each institution, body, office or agency shall determine in its own rules of procedure specific provisions regarding access to its documents, in accordance with the European laws referred to in paragraph 3.
***
Second, we fetch Article III-399 of the Constitutional Treaty, in Part III The policies and functioning of the Union, Title VI The functioning of the Union, Chapter I Provisions governing the institutions, Section 4 Provisions common to the Union institutions, bodies, offices and agencies (OJ 16.12.2004 C 310/172):
Article III-399 Constitution
1. The institutions, bodies, offices and agencies of the Union shall ensure transparency in their work and shall, pursuant to Article I-50, determine in their rules of procedure specific provisions for public access to their documents. The Court of Justice of the European Union, the European Central Bank and the European Investment Bank shall be subject to the provisions of Article I-50(3) and to this Article only when exercising their administrative tasks.
2. The European Parliament and the Council shall ensure publication of the documents relating to the legislative procedures under the terms laid down by the European law referred to in Article I-50(3).
***
Having served you the drafting history from the current TEC, through the draft Constitution and the Constitution, to the Lisbon Treaty, I leave it to you to compare the stages and to draw your own conclusions on how the principles of openness and transparency, including the right of access to documents, are going to advance according to the Lisbon Reform Treaty.
After all the self-congratulatory words by EU notables on the Lisbon Treaty, I prefer to ruminate on the vote this week of the European Parliament’s Committee on Budgetary Control (CONT) not to publish even a censored version of the internal audit report on a sample of MEPs’ expenses.
Ralf Grahn
The Council then refuses to publish readable, consolidated versions of the Lisbon Treaty, to further underline the chasm between principles and practices.
Whatever it is, I fear European leaders even when they bring gifts.
***
Let nobody deny the intergovernmental conference a keen sense of humour. In the Treaty of Lisbon (ToL) the IGC 2007 documented its determination to promote good governance, the participation of civil society, openness and transparency as follows (Official Journal 17.12.2007 C 306/49-50):
28) An Article 16 A shall be inserted, with the wording of Article 255; it shall be amended as
follows:
(a) paragraph 1 shall be preceded by the following text, paragraph 1 being renumbered 3 and paragraphs 2 and 3 becoming subparagraphs:
‘1. In order to promote good governance and ensure the participation of civil society, the Union institutions, bodies, offices and agencies shall conduct their work as openly as possible.
2. The European Parliament shall meet in public, as shall the Council when considering and voting on a draft legislative act.’;
(b) in paragraph 1, renumbered 3, which shall become the first subparagraph of paragraph 3, a change shall be made to the French which does not concern the English version. The words ‘European Parliament, Council and Commission documents’ shall be replaced by ‘documents of the Union institutions, bodies, offices and agencies, whatever their medium’ and the words ‘paragraphs 2 and 3’ shall be replaced by the words ‘this paragraph’;
(c) in paragraph 2, which shall become the second subparagraph of paragraph 1, renumbered 3, the words ‘by means of regulations’ shall be inserted after ‘shall be determined by the Council’ and the words ‘within two years of the entry into force of the Treaty of Amsterdam’ shall be deleted;
(d) in paragraph 3, which shall become the third subparagraph of paragraph 1, renumbered 3, the words ‘referred to above shall elaborate’ shall be replaced by ‘shall ensure that its proceedings are transparent and shall elaborate’, the words ‘, in accordance with the regulations referred to in the second subparagraph’ shall be inserted at the end of the subparagraph and the following two new subparagraphs shall be added:
‘The Court of Justice of the European Union, the European Central Bank and the European Investment Bank shall be subject to this paragraph only when exercising their administrative tasks.
The European Parliament and the Council shall ensure publication of the documents relating to the legislative procedures under the terms laid down by the regulation referred to in the second subparagraph.’.
***
The amended Article is based on of the current Article 255 of the Treaty establishing the European Community (TEC), so the missing link is found in the latest consolidated version of the treaties in OJ 29.12.2006 C 321 E/156-157:
Article 255 TEC
1. Any citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, shall have a right of access to European Parliament, Council and Commission documents, subject to the principles and the conditions to be defined in accordance with paragraphs 2 and 3.
2. General principles and limits on grounds of public or private interest governing this right of access to documents shall be determined by the Council, acting in accordance with the procedure referred to in Article 251 within two years of the entry into force of the Treaty of Amsterdam.
3. Each institution referred to above shall elaborate in its own Rules of Procedure specific provisions regarding access to its documents.
***
A few moments of happy tinkering are needed to open up the noble intentions of the IGC 2007, and to produce a consolidated version of the new Article 16a of the Treaty on the Functioning of the European Union (TFEU ToL). Under Part One Principles, Title II Provisions having general application, we should have the following new or amended provision, although it is extremely easy to miss a horizontal amendment or to make some other mistake:
Article 16a TFEU (ToL), after renumbering Article 15 TFEU
1. In order to promote good governance and ensure the participation of civil society, the Union institutions, bodies, offices and agencies shall conduct their work as openly as possible.
2. The European Parliament shall meet in public, as shall the Council when considering and voting on a draft legislative act.
3. Any citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, shall have a right of access to documents of the Union institutions, bodies, offices and agencies, whatever their medium, subject to the principles and the conditions to be defined in accordance with this paragraph.
General principles and limits on grounds of public or private interest governing this right of access to documents shall be determined by the European Parliament and the Council by means of regulations, acting in accordance with the ordinary legislative procedure.
Each institution, body, office or agency shall ensure that its proceedings are transparent and shall elaborate in its own Rules of Procedure specific provisions regarding access to its documents, in accordance with the regulations referred to in the second subparagraph.
The Court of Justice of the European Union, the European Central Bank and the European Investment Bank shall be subject to this paragraph only when exercising their administrative tasks.
The European Parliament and the Council shall ensure publication of the documents relating to the legislative procedures under the terms laid down by the regulation referred to in the second subparagraph.
***
The European Convention, in Part I, Title VI The democratic life of the Union, proposed the following Article I-49 of the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/20):
Article 49 Draft Constitution
Transparency of the proceedings of Union Institutions
1. In order to promote good governance and ensure the participation of civil society, the Union Institutions, bodies and agencies shall conduct their work as openly as possible.
2. The European Parliament shall meet in public, as shall the Council of Ministers when examining and adopting a legislative proposal.
3. Any citizen of the Union, and any natural or legal person residing or having its registered office in a Member State shall have a right of access to documents of the Union Institutions, bodies and agencies in whatever form they are produced, in accordance with the conditions laid down in Part III.
4. A European law shall lay down the general principles and limits which, on grounds of public or private interest, govern the right of access to such documents.
5. Each Institution, body or agency referred to in paragraph 3 shall determine in its own rules of procedure specific provisions regarding access to its documents, in accordance with the European law referred to in paragraph 4.
***
In addition, Article III-305 of the draft Constitution, under Part III The policies and functioning of the Union, Title VI The functioning of the Union, Section 4 Provisions common to Union institutions, bodies and agencies, is of interest (OJ 18.7.2003 C 169/85):
Article III-305 Draft Constitution
1. The Institutions, bodies and agencies of the Union shall recognise the importance of transparency in their work and shall, in application of Article I-49, lay down in their rules of procedure the specific provisions for public access to documents. The Court of Justice and the European Central Bank shall be subject to the provisions of Article I-49(3) when exercising their administrative tasks.
2. The European Parliament and the Council of Ministers shall ensure publication of the documents relating to the legislative procedures.
***
For easy comparison we take retrieve the main corresponding provisions of the Treaty establishing a Constitution for Europe. First, in Part I, Title VI The democratic life of the Union, Article I-50 (OJ 16.12.2004 C 310/35):
Article I-50 Constitution
Transparency of the proceedings of Union institutions, bodies, offices and agencies
1. In order to promote good governance and ensure the participation of civil society, the Union institutions, bodies, offices and agencies shall conduct their work as openly as possible.
2. The European Parliament shall meet in public, as shall the Council when considering and voting on a draft legislative act.
3. Any citizen of the Union, and any natural or legal person residing or having its registered office in a Member State shall have, under the conditions laid down in Part III, a right of access to documents of the Union institutions, bodies, offices and agencies, whatever their medium.
European laws shall lay down the general principles and limits which, on grounds of public or private interest, govern the right of access to such documents.
4. Each institution, body, office or agency shall determine in its own rules of procedure specific provisions regarding access to its documents, in accordance with the European laws referred to in paragraph 3.
***
Second, we fetch Article III-399 of the Constitutional Treaty, in Part III The policies and functioning of the Union, Title VI The functioning of the Union, Chapter I Provisions governing the institutions, Section 4 Provisions common to the Union institutions, bodies, offices and agencies (OJ 16.12.2004 C 310/172):
Article III-399 Constitution
1. The institutions, bodies, offices and agencies of the Union shall ensure transparency in their work and shall, pursuant to Article I-50, determine in their rules of procedure specific provisions for public access to their documents. The Court of Justice of the European Union, the European Central Bank and the European Investment Bank shall be subject to the provisions of Article I-50(3) and to this Article only when exercising their administrative tasks.
2. The European Parliament and the Council shall ensure publication of the documents relating to the legislative procedures under the terms laid down by the European law referred to in Article I-50(3).
***
Having served you the drafting history from the current TEC, through the draft Constitution and the Constitution, to the Lisbon Treaty, I leave it to you to compare the stages and to draw your own conclusions on how the principles of openness and transparency, including the right of access to documents, are going to advance according to the Lisbon Reform Treaty.
After all the self-congratulatory words by EU notables on the Lisbon Treaty, I prefer to ruminate on the vote this week of the European Parliament’s Committee on Budgetary Control (CONT) not to publish even a censored version of the internal audit report on a sample of MEPs’ expenses.
Ralf Grahn
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