The Treaty of Lisbon retains a right for member states – at least a quarter of them – to take initiatives in the fields of judicial cooperation in criminal matters and police cooperation.
Is the extension of the ‘Community method’ a welcome reform in the EU area of freedom, security and justice (FSJ) or justice and home affairs (JHA)? Is the residual right of initiative for member states a positive contribution or the sign of a timid approach to reform?
***
Article 76 of the Treaty on the Functioning of the European Union (TFEU), the last of Chapter 1 with general provisions, is presented as it stands after the intergovernmental conference (IGC 2007) in the Treaty of Lisbon (ToL), then renumbered and provisionally consolidated by the Council of the European Union (document 6655/08; page 98), with the location of the provision added from the table of equivalences (page 460 to 462):
Part Three ‘Policies and internal actions of the Union’
Title V TFEU ‘Area of freedom, security and justice’
Chapter 1 ‘General provisions’
Article 76 TFEU
The acts referred to in Chapters 4 and 5, together with the measures referred to in Article 74 which ensure administrative cooperation in the areas covered by these Chapters, shall be adopted:
(a) on a proposal from the Commission, or
(b) on the initiative of a quarter of the Member States.
***
In Article 2, points 62 and 64, of the Treaty of Lisbon (ToL) the intergovernmental conference (IGC 2007) agreed on the wording (as above) of the new Article 61i TFEU (ToL), which became Article 76 TFEU after renumbering in the consolidated version (OJ 17.12.2007 C 306/58).
The referral to the measures which ensure administrative cooperation in the original Lisbon Treaty was to Article 61g TFEU (ToL), which became Article 74 TFEU in the consolidated treaty (OJ 17.12.2007 C 306/209).
***
There are no directly corresponding provisions in the current Treaty on European Union (TEU) or the Treaty establishing the European Community (TEC). Cf. the latest consolidated version of the current treaties, in (OJ 29.12.2006 C 321 E/1).
But in the existing TEU Title VI on police and judicial cooperation in criminal matters, Article 34(2) TEU spells out that the Council shall take measures and promote cooperation acting unanimously on the initiative of any member state of the Commission (OJ 29.12.2006 C 321 E/26).
***
The European Convention modified the move of intergovernmental police and judicial cooperation in criminal matters (third pillar) to the unified EU structure (where the ‘Community method’ or ‘third pillar’ principles reigned) by retaining a residual right of initiative for a quarter of member states. The proposed Article III-165 of the draft Treaty establishing a Constitution for Europe served this purpose (OJ 18.7.2003 C 169/58):
Article III-165 Draft Constitution
The acts referred to in Sections 4 and 5 of this Chapter shall be adopted:
(a) on a proposal from the Commission, or
(b) on the initiative of a quarter of the Member States.
***
The IGC 2004 took over the text proposed by the European Convention, but added the regulations which ensured administrative cooperation in the areas of police and judicial cooperation in criminal matters to the scope of the provision (OJ 16.12.2004 C 310/114):
Article III-264 Constitution
The acts referred to in Sections 4 and 5, together with the European regulations referred to in Article III-263 which ensure administrative cooperation in the areas covered by these Sections, shall be adopted:
(a) on a proposal from the Commission, or
(b) on the initiative of a quarter of the Member States.
***
If we disregard the technical changes, we see that the IGC 2007 adopted the text of its predecessor, the IGC 2004, in accordance with the general rule on amendments to the TEC in the IGC 2007 Mandate: ‘The innovations as agreed in the 2004 IGC will be inserted into the Treaty by way of specific modifications in the usual manner.’ (See Council document 11218/07, point 18, page 7.)
***
The main rule within the European Community (future European Union), as part of the so called institutional balance, is the Commission’s monopoly to propose legislative acts (except where the treaties provide otherwise). In addition, the Commission proposes other acts where the treaties so provide.
The most up-to-date expression of these principles, which set the European Community (European Union) apart from traditional treaty based international organisations, is Article 17(2) TEU in the Council’s consolidated version of the Lisbon Treaty (document 6655/08, page 32).
***
The House of Lords European Union Committee report ‘The Treaty of Lisbon: an impact assessment, Volume I: Report’ (HL Paper 62-I, published 13 March 2008) discussed the right of initiative on page 123 and 124. The report presents the general background, the right of initiative for member states under Article 76 TFEU and the witnesses’ views on the problems connected with member states’ initiatives.
For the convenience of readers I quote the text here:
“The right of initiative
6.67. Under the Treaty of Lisbon the right to propose EU legislation—the right of initiative—will generally rest with the Commission, although in some circumstances Member States (and in limited cases other institutions) have the power to make a proposal for legislation.
i. Arrangements under the existing Treaties
6.68. While Title IV is subject to the “Community method” and therefore the Commission has exclusive right of initiative in respect of proposals for Community legislation, in Title VI the right of initiative is shared by the Commission and the Member States. In practice the majority of proposals emanate from the Commission, but any Member State may make a proposal for a Framework Decision and many have done so.
ii. Position post-Treaty of Lisbon
6.69. New Article 76 provides that measures in Chapters 4 and 5 of new Title V TFEU (i.e. measures relating to police and judicial cooperation in criminal matters—old Title VI TEU) shall be adopted on a proposal from the Commission or on the initiative of a quarter of the Member States. Thus some element of the Member States’ right of initiative has been retained, albeit in a more limited form.
6.70. The Law Societies welcomed the change. They considered that this would ensure a more coordinated and coherent approach to legislation, planned in line with long-term EU strategies rather than being based on topical national considerations (pp E99, E163).
6.71. Maria Fletcher regretted the retention of any right of initiative for Member States under the Treaty of Lisbon. She pointed to practical experience of Member States’ proposals, which in her view had been problematic to date: Member States tended to make proposals reflecting, to a disproportionate degree, domestic problems and proposals were often inadequately drafted. She considered that the Commission was better placed to submit proposals given that it acted in the interests of the Union and had the capacity and expertise to consult widely and conduct impact assessments (p E150). This was a view shared by FTI, which expressed regret that Member States would not be required to produce similar assessments when making use of their right of initiative (p E147).
6.72. Not all proposals in the area of FSJ, whether they emanate from Member States or the Commission, are supported by the statistical and other evidence critical for assessing the need for proposed legislation, and especially its compliance with the subsidiarity principle. The problem is greater with Member States’ initiatives: while the Commission always provides an explanatory memorandum and sometimes provides an impact assessment, Member States rarely provide either.”
The report is accessible at:
http://www.publications.parliament.uk/pa/ld200708/ldselect/ldeucom/62/62.pdf
Ralf Grahn
Consolidated EU Treaties:
If you want to read or download the Council’s consolidated Treaty on European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU) as amended by the Lisbon Treaty, the original Treaty of Lisbon, the current TEU and TEC, the Draft Constitution, the Constitutional Treaty, or other consolidated language versions of the Lisbon Treaty TEU and TFEU, you find the needed information and links in the blawg post ‘Consolidated Treaty of Lisbon and other EU materials’ of 21 April 2008:
http://grahnlaw.blogspot.com/2008/04/consolidated-treaty-of-lisbon-and-other.html
In addition, two ‘private’ annotated and consolidated versions including the Treaty of Lisbon amendments can be pointed out.
Peadar ó Broin, of the Institute of International and European Affairs (Dublin), has edited a consolidated and annotated version of the EU treaties as amended by the Treaty of Lisbon. The highlighted IIEA shows the differences between different stages. It is available through the web page of the European Policy Institutes Netword (EPIN):
http://www.epin.org/new/files/AnnotatedTreaties.pdf
Jens-Peter Bonde has issued a ‘Consolidated Reader-Friendly Edition’ of the TEU and the TFEU as amended by the Treaty of Lisbon. There are remarks about changes are in the margin and symbols are used to show amendments. The consolidation is available at:
http://www.j.dk/exp/images/bondes/Consolidated_LISBON_TREATY_3.pdf
The Irish Referendum Commission is gathering speed in its campaign to inform the public ahead of the 12 June 2008 Lisbon Treaty referendum. At this point in time it is possible to find information about the essential treaty changes boiled down to a few pages for the busy reader:
http://www.lisbontreaty2008.ie
Wednesday, 30 April 2008
Tuesday, 29 April 2008
EU TFEU: Freezing terrorists’ funds
The Treaty of Lisbon makes it easier for the EU to freeze terrorists’ funds. Even the UK government seems enthusiastic.
***
Article 75 of the Treaty on the Functioning of the European Union (TFEU) is presented as it stands after the intergovernmental conference (IGC 2007) in the Treaty of Lisbon (ToL), then renumbered and provisionally consolidated by the Council of the European Union (document 6655/08; page 98), with the location of the provision added from the table of equivalences (page 460 to 462):
Part Three ‘Policies and internal actions of the Union’
Title V TFEU ‘Area of freedom, security and justice’
Chapter 1 ‘General provisions’
Article 75 TFEU
(ex Article 60 TEC)
Where necessary to achieve the objectives set out in Article 67, as regards preventing and combating terrorism and related activities, the European Parliament and the Council, acting by means of regulations in accordance with the ordinary legislative procedure, shall define a framework for administrative measures with regard to capital movements and payments, such as the freezing of funds, financial assets or economic gains belonging to, or owned or held by, natural or legal persons, groups or non-State entities.
The Council, on a proposal from the Commission, shall adopt measures to implement the framework referred to in the first paragraph.
The acts referred to in this Article shall include necessary provisions on legal safeguards.
***
In Article 2, points 62 and 64, of the Treaty of Lisbon (ToL) the intergovernmental conference (IGC 2007) agreed on the wording (as above) of the new Article 61h TFEU (ToL), which became Article 75 TFEU after renumbering in the consolidated version (OJ 17.12.2007 C 306/58).
The referral to the objectives of the area of freedom, security and justice in the original Lisbon Treaty was to Article 61 TFEU (ToL), which became Article 67 TFEU in the consolidated treaty (OJ 17.12.2007 C 306/209).
***
Article 60 of the Treaty establishing the European Community (TEC), to be moved and amended, is found in the latest consolidated version of the current treaties, under TEC Title III ‘Free movement of persons, services and capital’ and its Chapter 4 ‘Capital and payments’ (OJ 29.12.2006 C 321 E/65):
Article 60 TEC
1. If, in the cases envisaged in Article 301, action by the Community is deemed necessary, the Council may, in accordance with the procedure provided for in Article 301, take the necessary urgent measures on the movement of capital and on payments as regards the third countries concerned.
2. Without prejudice to Article 297 and as long as the Council has not taken measures pursuant to paragraph 1, a Member State may, for serious political reasons and on grounds of urgency, take unilateral measures against a third country with regard to capital movements and payments. The Commission and the other Member States shall be informed of such measures by the date of their entry into force at the latest.
The Council may, acting by a qualified majority on a proposal from the Commission, decide that the Member State concerned shall amend or abolish such measures. The President of the Council shall inform the European Parliament of any such decision taken by the Council.
***
The European Convention proposed Article III-49 of the draft Treaty establishing a Constitution for Europe, still under Section 4 ‘Capital and payments’ (OJ 18.7.2003 C 169/35):
Article III-49 Draft Constitution
Where necessary to achieve the objectives set out in Article III-158, in particular as regards prevention of and fight against organised crime, terrorism and trafficking in human beings, European laws may define a framework for measures with regard to capital movements and payments, such as the freezing of funds, financial assets or economic gains belonging to, or owned or held by, natural or legal persons, groups or non-state entities.
The Council of Ministers, on a proposal from the Commission, shall adopt European regulations or European decisions in order to implement the laws referred to in the first paragraph.
***
Article III-160 of the Treaty establishing a Constitution for Europe, still under Section 4 on capital and payments, drew upon but amended the draft provision (OJ 16.12.2004 C 310/68):
Article III-160 Constitution
Where necessary to achieve the objectives set out in Article III-257, as regards preventing and combating terrorism and related activities, European laws shall define a framework for administrative measures with regard to capital movements and payments, such as the freezing of funds, financial assets or economic gains belonging to, or owned or held by, natural or legal persons, groups or non-State entities.
The Council, on a proposal from the Commission, shall adopt European regulations or European decisions in order to implement the European laws referred to in the first paragraph.
The acts referred to in this Article shall include necessary provisions on legal safeguards.
***
The current Article 60 TEC refers to cases envisaged in Article 301 TEC, namely economic sanctions targeting one or more third countries and based on a prior common position or joint action adopted according to the TEU (common foreign and security policy). The urgent unilateral measures by a member state are targeted at countries, too.
The existing provision is ill adapted to measures concerning non-state actors, such as terrorists.
The European Convention drew the first provision, which referred to the aims of the area of freedom, security and justice (FSJ). The proposed scope of Article III-49 of the draft Constitution was rather wide, including the prevention of and fight against organised crime, terrorism and trafficking in human beings.
Article III-160 of the Constitutional Treaty retained the referral to the objectives of the area of freedom, security and justice, but the IGC 2004 limited the scope of the provision to terrorism and related activities and to a framework for ‘administrative’ measures. The third paragraph on legal safeguards was added. Additionally, the IGC 2004 agreed on a Declaration (number 15) on Articles III-160 and III-322, recalling the respect for fundamental rights and the need for clear and distinct criteria.
Article 75 TFEU (61h ToL) of the Treaty of Lisbon contains technical adjustments and minor stylistic changes, but in essence it takes over the text of the Constitution.
***
There are two declarations to take into account. First, we have Declaration (number 25) on Articles 75 and 215 of the Treaty on the Functioning of the European Union, almost identical to the corresponding declaration of the IGC 2004 (in the Council’s consolidated version of the Lisbon Treaty, document 6655/08, page 439):
25. Declaration on Articles 75 and 215 of the Treaty on the Functioning of the European Union
The Conference recalls that the respect for fundamental rights and freedoms implies, in particular, that proper attention is given to the protection and observance of the due process rights of the individuals or entities concerned. For this purpose and in order to guarantee a thorough judicial review of decisions subjecting an individual or entity to restrictive measures, such decisions must be based on clear and distinct criteria. These criteria should be tailored to the specifics of each restrictive measure.
***
Second, there is a unilateral declaration of intent by the UK, namely (on page 453):
65. Declaration by the United Kingdom of Great Britain and Northern Ireland on Article 75 of the Treaty on the Functioning of the European Union
The United Kingdom fully supports robust action with regard to adopting financial sanctions designed to prevent and combat terrorism and related activities. Therefore, the United Kingdom declares that it intends to exercise its right under Article 3 of the Protocol on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice to take part in the adoption of all proposals made under Article 75 of the Treaty on the Functioning of the European Union.
Ralf Grahn
Consolidated EU Treaties:
If you want to read or download the Council’s consolidated Treaty on European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU) as amended by the Lisbon Treaty, the original Treaty of Lisbon, the current TEU and TEC, the Draft Constitution, the Constitutional Treaty, or other consolidated language versions of the Lisbon Treaty TEU and TFEU, you find the needed information and links in the blawg post ‘Consolidated Treaty of Lisbon and other EU materials’ of 21 April 2008:
http://grahnlaw.blogspot.com/2008/04/consolidated-treaty-of-lisbon-and-other.html
***
Article 75 of the Treaty on the Functioning of the European Union (TFEU) is presented as it stands after the intergovernmental conference (IGC 2007) in the Treaty of Lisbon (ToL), then renumbered and provisionally consolidated by the Council of the European Union (document 6655/08; page 98), with the location of the provision added from the table of equivalences (page 460 to 462):
Part Three ‘Policies and internal actions of the Union’
Title V TFEU ‘Area of freedom, security and justice’
Chapter 1 ‘General provisions’
Article 75 TFEU
(ex Article 60 TEC)
Where necessary to achieve the objectives set out in Article 67, as regards preventing and combating terrorism and related activities, the European Parliament and the Council, acting by means of regulations in accordance with the ordinary legislative procedure, shall define a framework for administrative measures with regard to capital movements and payments, such as the freezing of funds, financial assets or economic gains belonging to, or owned or held by, natural or legal persons, groups or non-State entities.
The Council, on a proposal from the Commission, shall adopt measures to implement the framework referred to in the first paragraph.
The acts referred to in this Article shall include necessary provisions on legal safeguards.
***
In Article 2, points 62 and 64, of the Treaty of Lisbon (ToL) the intergovernmental conference (IGC 2007) agreed on the wording (as above) of the new Article 61h TFEU (ToL), which became Article 75 TFEU after renumbering in the consolidated version (OJ 17.12.2007 C 306/58).
The referral to the objectives of the area of freedom, security and justice in the original Lisbon Treaty was to Article 61 TFEU (ToL), which became Article 67 TFEU in the consolidated treaty (OJ 17.12.2007 C 306/209).
***
Article 60 of the Treaty establishing the European Community (TEC), to be moved and amended, is found in the latest consolidated version of the current treaties, under TEC Title III ‘Free movement of persons, services and capital’ and its Chapter 4 ‘Capital and payments’ (OJ 29.12.2006 C 321 E/65):
Article 60 TEC
1. If, in the cases envisaged in Article 301, action by the Community is deemed necessary, the Council may, in accordance with the procedure provided for in Article 301, take the necessary urgent measures on the movement of capital and on payments as regards the third countries concerned.
2. Without prejudice to Article 297 and as long as the Council has not taken measures pursuant to paragraph 1, a Member State may, for serious political reasons and on grounds of urgency, take unilateral measures against a third country with regard to capital movements and payments. The Commission and the other Member States shall be informed of such measures by the date of their entry into force at the latest.
The Council may, acting by a qualified majority on a proposal from the Commission, decide that the Member State concerned shall amend or abolish such measures. The President of the Council shall inform the European Parliament of any such decision taken by the Council.
***
The European Convention proposed Article III-49 of the draft Treaty establishing a Constitution for Europe, still under Section 4 ‘Capital and payments’ (OJ 18.7.2003 C 169/35):
Article III-49 Draft Constitution
Where necessary to achieve the objectives set out in Article III-158, in particular as regards prevention of and fight against organised crime, terrorism and trafficking in human beings, European laws may define a framework for measures with regard to capital movements and payments, such as the freezing of funds, financial assets or economic gains belonging to, or owned or held by, natural or legal persons, groups or non-state entities.
The Council of Ministers, on a proposal from the Commission, shall adopt European regulations or European decisions in order to implement the laws referred to in the first paragraph.
***
Article III-160 of the Treaty establishing a Constitution for Europe, still under Section 4 on capital and payments, drew upon but amended the draft provision (OJ 16.12.2004 C 310/68):
Article III-160 Constitution
Where necessary to achieve the objectives set out in Article III-257, as regards preventing and combating terrorism and related activities, European laws shall define a framework for administrative measures with regard to capital movements and payments, such as the freezing of funds, financial assets or economic gains belonging to, or owned or held by, natural or legal persons, groups or non-State entities.
The Council, on a proposal from the Commission, shall adopt European regulations or European decisions in order to implement the European laws referred to in the first paragraph.
The acts referred to in this Article shall include necessary provisions on legal safeguards.
***
The current Article 60 TEC refers to cases envisaged in Article 301 TEC, namely economic sanctions targeting one or more third countries and based on a prior common position or joint action adopted according to the TEU (common foreign and security policy). The urgent unilateral measures by a member state are targeted at countries, too.
The existing provision is ill adapted to measures concerning non-state actors, such as terrorists.
The European Convention drew the first provision, which referred to the aims of the area of freedom, security and justice (FSJ). The proposed scope of Article III-49 of the draft Constitution was rather wide, including the prevention of and fight against organised crime, terrorism and trafficking in human beings.
Article III-160 of the Constitutional Treaty retained the referral to the objectives of the area of freedom, security and justice, but the IGC 2004 limited the scope of the provision to terrorism and related activities and to a framework for ‘administrative’ measures. The third paragraph on legal safeguards was added. Additionally, the IGC 2004 agreed on a Declaration (number 15) on Articles III-160 and III-322, recalling the respect for fundamental rights and the need for clear and distinct criteria.
Article 75 TFEU (61h ToL) of the Treaty of Lisbon contains technical adjustments and minor stylistic changes, but in essence it takes over the text of the Constitution.
***
There are two declarations to take into account. First, we have Declaration (number 25) on Articles 75 and 215 of the Treaty on the Functioning of the European Union, almost identical to the corresponding declaration of the IGC 2004 (in the Council’s consolidated version of the Lisbon Treaty, document 6655/08, page 439):
25. Declaration on Articles 75 and 215 of the Treaty on the Functioning of the European Union
The Conference recalls that the respect for fundamental rights and freedoms implies, in particular, that proper attention is given to the protection and observance of the due process rights of the individuals or entities concerned. For this purpose and in order to guarantee a thorough judicial review of decisions subjecting an individual or entity to restrictive measures, such decisions must be based on clear and distinct criteria. These criteria should be tailored to the specifics of each restrictive measure.
***
Second, there is a unilateral declaration of intent by the UK, namely (on page 453):
65. Declaration by the United Kingdom of Great Britain and Northern Ireland on Article 75 of the Treaty on the Functioning of the European Union
The United Kingdom fully supports robust action with regard to adopting financial sanctions designed to prevent and combat terrorism and related activities. Therefore, the United Kingdom declares that it intends to exercise its right under Article 3 of the Protocol on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice to take part in the adoption of all proposals made under Article 75 of the Treaty on the Functioning of the European Union.
Ralf Grahn
Consolidated EU Treaties:
If you want to read or download the Council’s consolidated Treaty on European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU) as amended by the Lisbon Treaty, the original Treaty of Lisbon, the current TEU and TEC, the Draft Constitution, the Constitutional Treaty, or other consolidated language versions of the Lisbon Treaty TEU and TFEU, you find the needed information and links in the blawg post ‘Consolidated Treaty of Lisbon and other EU materials’ of 21 April 2008:
http://grahnlaw.blogspot.com/2008/04/consolidated-treaty-of-lisbon-and-other.html
Monday, 28 April 2008
Åland Islands debate EU Lisbon Treaty
Fellow blogger EU Law asked me what the local Åland Islands parliament is doing with the Treaty of Lisbon today. I thought it would be better to try to answer in a separate post, not in the comments section of an unrelated blog post.
Due to time constraints this note is going to be rushed. Here are the essentials:
The regional parliament (lagtinget) debates the Treaty of Lisbon, remitted by the President of the Republic of Finland with regard to possible approval as regards Åland, with a view to sending it to committee. The local government (landskapsregeringen) has prepared a 22 page paper (meddelande, “Mitteilung”) where it stresses the importance of added influence for the Åland Islands in Finnish EU affairs.
The debate started at 13 o’clock local time and is ongoing. At least one delegate of the more separatist kind has proposed a moratorium on dealing with the proposal from the President until 15 September 2008, instead of remitting it to the committee. So, immediate or delayed remittal to committee will probably be voted upon later today.
Links for those who read Swedish are found at Ålands lagting:
http://www.lagtinget.aland.fi/
Ralf Grahn
Due to time constraints this note is going to be rushed. Here are the essentials:
The regional parliament (lagtinget) debates the Treaty of Lisbon, remitted by the President of the Republic of Finland with regard to possible approval as regards Åland, with a view to sending it to committee. The local government (landskapsregeringen) has prepared a 22 page paper (meddelande, “Mitteilung”) where it stresses the importance of added influence for the Åland Islands in Finnish EU affairs.
The debate started at 13 o’clock local time and is ongoing. At least one delegate of the more separatist kind has proposed a moratorium on dealing with the proposal from the President until 15 September 2008, instead of remitting it to the committee. So, immediate or delayed remittal to committee will probably be voted upon later today.
Links for those who read Swedish are found at Ålands lagting:
http://www.lagtinget.aland.fi/
Ralf Grahn
Reports and publications about the EU area of freedom, security and justice
Here are some suggestions for further reading on the EU area of freedom, security and justice (FSJ), by the way of an unsorted list of fairly recent publications:
Hugo Brady, of the Centre for European Reform, has written a blog post ‘The new politics of EU internal security’ (28 March 2008), where he calls for a more constructive working relationship between the member state governments and the LIBE Committee of the European Parliament:
http://centreforeuropeanreform.blogspot.com/2008/03/new-politics-of-eu-internal-security.html
A fairly recent CER entry on justice and home affairs is an article by Hugo Brady, published in the January – February 2008 issue of E!Sharp, ‘Wanted: an EU migration policy:
http://www.cer.org.uk/pdf/article_brady_esharp_jan08_1.pdf
The CER Policy Briefing ‘EU migration policy: An A–Z’ by Hugo Brady is a more substantial treatment of the matter:
http://www.cer.org.uk/pdf/briefing_813.pdf
CEPS, the Centre for European Policy Studies, has some interesting recent papers on freedom, security and justice issues. Hasso Lieber has written ‘Checks and balances: Dividing the Directorate General for Justice, Freedom and Security in two – an Interior and a Justice branch’ (CEPS Policy brief No. 158, April 2008):
http://www.cer.org.uk/pdf/article_brady_esharp_jan08_1.pdf
A 23 April 2008 CEPS Working Document by Florian Trauner and Imke Kruse is called ‘EC Visa Facilitation and Readmission Agreements: Implementing a New EU Security Approach in the Neighbourhood’:
http://shop.ceps.eu/BookDetail.php?item_id=1646
‘The Other Side of the Moons – The Schengen Information System and Human rights: A Task for National Courts’ is a CEPS Working Document by Evelien Brouwer, published 14 April 2008:
http://shop.ceps.eu/BookDetail.php?item_id=1642
Didier Bigo, Sergio Carrera and Elspeth Guild have authored ‘What Future for the Area of Freedom, Security and Justice? Recommendations on EU Migration and Borders Policies in a Globalising World’, CEPS Policy Brief, published 20 March 2008:
http://shop.ceps.eu/BookDetail.php?item_id=1627
Anaïs Faure Atger has produced the Challenge Paper ‘The Abolition of Internal Border Checks in an Enlarged Schengen Area: Freedom of movement or a scattered web of security checks?’, published 20 March 2008:
http://shop.ceps.eu/BookDetail.php?item_id=1629
Daniel Korski, of the European Council on Foreign Relations, comments on the external aspects of internal security in the article ‘Making Europe’s voice louder’, 19 April 2008:
http://www.ecfr.eu/content/entry/commentary_making_europes_voice_louder/
Hanna Goeters wrote a substantial report on ‘New Criminal Law Developments in the Community Legal Order, published in February 2008 by the Swedish Institute for European Policy Studies (Sieps):
http://www.sieps.se/publ/utredningar/bilagor/2007.1u.pdf
‘The Future of the Common European Asylum System: In Need of a More Comprehensive Burden-Sharing Approach’, by Eiko Thielemann, was published as a Sieps European Policy Analysis paper in January 2008:
http://www.sieps.se/publ/utredningar/bilagor/2007.1u.pdf
In an Events Report of the European Policy Centre (EPC), Irene Khan, Secretary-General of Amnesty International, gives her view on ‘EU asylum policy in a securitised world’, published 28 April 2008:
http://www.epc.eu/en/er.asp?TYP=ER&LV=293&see=y&t=2&PG=ER/EN/detail&l=&AI=799
Since external and internal aspect of security are inextricably linked, Antonio Missiroli’s European Policy Centre Policy Brief ‘Revisiting the European Security Strategy – beyond 2008’, published 23 April 2008, is relevant to the area of freedom, security and justice:
http://www.epc.eu/en/pub.asp?TYP=TEWN&LV=187&see=y&t=&PG=TEWN/EN/detailpub&l=12&AI=929
Statewatch runs the impressive European Monitoring & Documentation Centre on Justice and Home Affairs in the EU, with the latest news and documents added 23 April 2008. Some content requires a paid subscription, but much is freely available:
http://www.statewatch.org/semdoc/
There are Statewatch Observatories on the policy areas concerned with EU freedom, security and justice issues, with a special focus on civil liberties:
http://www.statewatch.org/
The House of Lords European Union Committee report ‘The Treaty of Lisbon: an impact assessment, Volume I: Report’ (HL Paper 62-I, published 13 March 2008) discusses the area of freedom, security and justice at length (Chapter 6, pages 110 – 177).
The report is available at:
http://www.publications.parliament.uk/pa/ld200708/ldselect/ldeucom/62/62.pdf
‘FRONTEX: the EU external borders agency’ is the 9th Report of Session 2007–08 by the House of Lords European Union Committee (HL Paper 60, published 5 March 2008):
http://www.publications.parliament.uk/pa/ld200708/ldselect/ldeucom/60/60.pdf
The European Commission churns out a daunting amount of proposals and related press releases, as can be seen in the Newsroom of the Directorate General:
http://ec.europa.eu/justice_home/news/intro/news_intro_en.htm
The home page of the Commissions Virtual Documentation Centre offers links to the different areas of EU justice and home affairs, including a consolidated list of the EU legislation in the area of freedom, security and justice (updated November 2007):
http://ec.europa.eu/justice_home/news/intro/news_intro_en.htm
Ralf Grahn
Consolidated EU Treaties:
If you want to read or download the Council’s consolidated Treaty on European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU) as amended by the Lisbon Treaty, the original Treaty of Lisbon, the current TEU and TEC, the Draft Constitution, the Constitutional Treaty, or other consolidated language versions of the Lisbon Treaty TEU and TFEU, you find the needed information and links in the blawg post ‘Consolidated Treaty of Lisbon and other EU materials’ of 21 April 2008:
http://grahnlaw.blogspot.com/2008/04/consolidated-treaty-of-lisbon-and-other.html
Hugo Brady, of the Centre for European Reform, has written a blog post ‘The new politics of EU internal security’ (28 March 2008), where he calls for a more constructive working relationship between the member state governments and the LIBE Committee of the European Parliament:
http://centreforeuropeanreform.blogspot.com/2008/03/new-politics-of-eu-internal-security.html
A fairly recent CER entry on justice and home affairs is an article by Hugo Brady, published in the January – February 2008 issue of E!Sharp, ‘Wanted: an EU migration policy:
http://www.cer.org.uk/pdf/article_brady_esharp_jan08_1.pdf
The CER Policy Briefing ‘EU migration policy: An A–Z’ by Hugo Brady is a more substantial treatment of the matter:
http://www.cer.org.uk/pdf/briefing_813.pdf
CEPS, the Centre for European Policy Studies, has some interesting recent papers on freedom, security and justice issues. Hasso Lieber has written ‘Checks and balances: Dividing the Directorate General for Justice, Freedom and Security in two – an Interior and a Justice branch’ (CEPS Policy brief No. 158, April 2008):
http://www.cer.org.uk/pdf/article_brady_esharp_jan08_1.pdf
A 23 April 2008 CEPS Working Document by Florian Trauner and Imke Kruse is called ‘EC Visa Facilitation and Readmission Agreements: Implementing a New EU Security Approach in the Neighbourhood’:
http://shop.ceps.eu/BookDetail.php?item_id=1646
‘The Other Side of the Moons – The Schengen Information System and Human rights: A Task for National Courts’ is a CEPS Working Document by Evelien Brouwer, published 14 April 2008:
http://shop.ceps.eu/BookDetail.php?item_id=1642
Didier Bigo, Sergio Carrera and Elspeth Guild have authored ‘What Future for the Area of Freedom, Security and Justice? Recommendations on EU Migration and Borders Policies in a Globalising World’, CEPS Policy Brief, published 20 March 2008:
http://shop.ceps.eu/BookDetail.php?item_id=1627
Anaïs Faure Atger has produced the Challenge Paper ‘The Abolition of Internal Border Checks in an Enlarged Schengen Area: Freedom of movement or a scattered web of security checks?’, published 20 March 2008:
http://shop.ceps.eu/BookDetail.php?item_id=1629
Daniel Korski, of the European Council on Foreign Relations, comments on the external aspects of internal security in the article ‘Making Europe’s voice louder’, 19 April 2008:
http://www.ecfr.eu/content/entry/commentary_making_europes_voice_louder/
Hanna Goeters wrote a substantial report on ‘New Criminal Law Developments in the Community Legal Order, published in February 2008 by the Swedish Institute for European Policy Studies (Sieps):
http://www.sieps.se/publ/utredningar/bilagor/2007.1u.pdf
‘The Future of the Common European Asylum System: In Need of a More Comprehensive Burden-Sharing Approach’, by Eiko Thielemann, was published as a Sieps European Policy Analysis paper in January 2008:
http://www.sieps.se/publ/utredningar/bilagor/2007.1u.pdf
In an Events Report of the European Policy Centre (EPC), Irene Khan, Secretary-General of Amnesty International, gives her view on ‘EU asylum policy in a securitised world’, published 28 April 2008:
http://www.epc.eu/en/er.asp?TYP=ER&LV=293&see=y&t=2&PG=ER/EN/detail&l=&AI=799
Since external and internal aspect of security are inextricably linked, Antonio Missiroli’s European Policy Centre Policy Brief ‘Revisiting the European Security Strategy – beyond 2008’, published 23 April 2008, is relevant to the area of freedom, security and justice:
http://www.epc.eu/en/pub.asp?TYP=TEWN&LV=187&see=y&t=&PG=TEWN/EN/detailpub&l=12&AI=929
Statewatch runs the impressive European Monitoring & Documentation Centre on Justice and Home Affairs in the EU, with the latest news and documents added 23 April 2008. Some content requires a paid subscription, but much is freely available:
http://www.statewatch.org/semdoc/
There are Statewatch Observatories on the policy areas concerned with EU freedom, security and justice issues, with a special focus on civil liberties:
http://www.statewatch.org/
The House of Lords European Union Committee report ‘The Treaty of Lisbon: an impact assessment, Volume I: Report’ (HL Paper 62-I, published 13 March 2008) discusses the area of freedom, security and justice at length (Chapter 6, pages 110 – 177).
The report is available at:
http://www.publications.parliament.uk/pa/ld200708/ldselect/ldeucom/62/62.pdf
‘FRONTEX: the EU external borders agency’ is the 9th Report of Session 2007–08 by the House of Lords European Union Committee (HL Paper 60, published 5 March 2008):
http://www.publications.parliament.uk/pa/ld200708/ldselect/ldeucom/60/60.pdf
The European Commission churns out a daunting amount of proposals and related press releases, as can be seen in the Newsroom of the Directorate General:
http://ec.europa.eu/justice_home/news/intro/news_intro_en.htm
The home page of the Commissions Virtual Documentation Centre offers links to the different areas of EU justice and home affairs, including a consolidated list of the EU legislation in the area of freedom, security and justice (updated November 2007):
http://ec.europa.eu/justice_home/news/intro/news_intro_en.htm
Ralf Grahn
Consolidated EU Treaties:
If you want to read or download the Council’s consolidated Treaty on European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU) as amended by the Lisbon Treaty, the original Treaty of Lisbon, the current TEU and TEC, the Draft Constitution, the Constitutional Treaty, or other consolidated language versions of the Lisbon Treaty TEU and TFEU, you find the needed information and links in the blawg post ‘Consolidated Treaty of Lisbon and other EU materials’ of 21 April 2008:
http://grahnlaw.blogspot.com/2008/04/consolidated-treaty-of-lisbon-and-other.html
EU TFEU: Administrative cooperation in justice and home affairs
With the Treaty of Lisbon, administrative cooperation in the EU area of freedom, security and justice (FSJ) widens to police and judicial cooperation in criminal matters.
We follow the relevant Lisbon Treaty provision during the treaty reform process and look at how Ireland informs its citizens ahead of the 12 June referendum as well as at what the governments of Sweden and Finland have commented.
***
Article 74 of the Treaty on the Functioning of the European Union (TFEU) is presented as it stands after the intergovernmental conference (IGC 2007) in the Treaty of Lisbon (ToL), renumbered and provisionally consolidated by the Council of the European Union (document 6655/08; page 97), with the location of the provision added from the table of equivalences (page 460 to 462):
Part Three ‘Policies and internal actions of the Union’
Title V TFEU ‘Area of freedom, security and justice’
Chapter 1 ‘General provisions’
Article 74 TFEU
(ex Article 66 TEC)
The Council shall adopt measures to ensure administrative cooperation between the relevant departments of the Member States in the areas covered by this Title, as well as between those departments and the Commission. It shall act on a Commission proposal, subject to Article 76, and after consulting the European Parliament.
***
In Article 2, point 64, of the Treaty of Lisbon (ToL) the intergovernmental conference (IGC 2007) agreed on the wording (as above) of the new Article 61g TFEU (ToL), which became Article 74 TFEU after renumbering in the consolidated version. The referral in the original Lisbon Treaty was to Article 61i, which became Article 76 TFEU in the consolidated treaty (OJ 17.12.2007 C 308/58).
***
Article 66 of the Treaty establishing the European Community (TEC), to be replaced, is found in the latest consolidated version of the current treaties (OJ 29.12.2006 C 321 E/69):
Article 66 TEC
The Council, acting in accordance with the procedure referred to in Article 67, shall take measures to ensure cooperation between the relevant departments of the administrations of the Member States in the areas covered by this title, as well as between those departments and the Commission.
***
The corresponding provision in the draft Treaty establishing a Constitution for Europe was Article III-164 (OJ 18.7.2003 C 169/58):
Article III-164 Draft Constitution
The Council of Ministers shall adopt European regulations to ensure administrative cooperation between the relevant departments of the Member States in the areas covered by this Chapter, as well as between those departments and the Commission. It shall act on a Commission proposal, without prejudice to Article III-165, and after consulting the European Parliament.
***
This is how Article III-263 of the Treaty establishing a Constitution for Europe looked as part of the IGC 2004 ‘acquis’ which formed the basis for the IGC 2007 leading to the Treaty of Lisbon (OJ 16.12.2004 C 310/114):
Article III-263 Constitution
The Council shall adopt European regulations to ensure administrative cooperation between the relevant departments of the Member States in the areas covered by this Chapter, as well as between those departments and the Commission. It shall act on a Commission proposal, subject to Article III-264, and after consulting the European Parliament.
***
What has changed along the way, if anything?
The current Article 66 TEC covers the present Title 4 on visas, asylum, immigration and other policies related to free movement of persons. Since the European Convention’s draft Constitution the intention has been to extend the scope to cover the whole area of freedom, security and justice.
The more developed system (taxonomy) of legislative acts in the draft Constitution and the Constitution was, of course, lost as part of the ‘constitutional concept’, so the Treaty of Lisbon reverted to the nondescript ‘measures’ to be adopted.
The Council adopts the measures by qualified majority voting (QMV), since Article 74 TFEU does not spell out a requirement of unanimity. Currently unanimous decisions apply within the third pillar questions on police and judicial cooperation in criminal matters according to Article 34(2) TEU, but qualified majority voting in first pillar matters.
The referral to Article 76 TFEU means that the measures concerning administrative cooperation in the areas of judicial cooperation in criminal matters (Chapter 4) and police cooperation (Chapter 5) can be adopted either on a proposal from the Commission or on the initiative of a quarter of the member states. Presently each member state has the right of initiative in these intergovernmental areas based on Article 34(2) TEU, so it is possible to speak about a residual right of initiative.
***
Administrative cooperation in general is mentioned in the Treaty of Lisbon as one of the new areas, where the EU has competence to carry out actions to support, coordinate or supplement the actions of the member states. See the Council’s consolidated version, Article 6(1)(g) TFEU, page 67.
***
Irish guides and summaries
When governments or other official bodies provide guides or summaries for the general public concerning the Treaty of Lisbon, the main aim has to be to present essentially correct information about the main changes in a fairly reader-friendly manner.
In its April 2008 White Paper ‘The EU Reform Treaty’ (page 67, point 9), the Department of Foreign Affairs of Ireland states that administrative co-operation between Member States is also envisaged.
The White Paper and a wealth other information in English and Gaelic is available on the web page ‘The EU Reform Treaty’ of the Department of Foreign Affairs:
http://www.reformtreaty.ie/
The upcoming 12 June 2008 Irish referendum on the Treaty of Lisbon has led to a lively debate about the advantages and disadvantages of the amending treaties as well the need for factual information. The National Forum of Europe serves both purposes:
http://www.forumoneurope.ie/
The National Forum on Europe has published ‘A Summary Guide to the Treaty of Lisbon (EU Reform Treaty)’, in English and Irish. The guides are available at:
http://www.forumoneurope.ie/eng/index.asp?docID=1489
The Summary mentions ‘Administrative cooperation within the area of freedom, security and justice after consulting the European Parliament’ as one of the new or TFEU areas changed to QMV. Although the change actually applies only to the current intergovernmental fields, the Summary sums it up as well as can be expected in an abbreviated form.
In my opinion, the White Paper and the Summary impart essentially correct information concerning this point to the Irish voters (and to other interested persons).
Would it be too much to ask campaigners to adhere to the same standards of objectivity with regard to facts? Nobody restricts the freedom to form positive or negative opinions about the consequences of the Lisbon Treaty, but it would certainly raise the standard of the debate and the possibility of informed choice if all sides adhered to basic requirements of truthful representation of facts and expressed opinions based on these facts.
The IIEA’s Consolidated and Annotated Version of the Treaties, by Peadar ó Broin, is available at:
http://www.epin.org/new/home
***
Sweden
The consultation paper of the government of Sweden, ‘Lissabonfördraget; Statsrådsberedningen, Departementsserien (Ds), Ds 2007:48’ published 20 December 2007, dedicates a paragraph on page 304 ‘Administrativt samarbete’ to administrative cooperation. The essential statement is that the provision is extended to police and criminal justice cooperation.
The consultation paper ’Lissabonfördraget’ is available at:
http://www.regeringen.se/content/1/c6/09/49/81/107aa077.pdf
***
Finland
The Finnish ratification bill ‘Hallituksen esitys Eduskunnalle Euroopan unionista tehdyn sopimuksen ja Euroopan yhteisön perustamissopimuksen muuttamisesta tehdyn Lissabonin sopimuksen hyväksymisestä ja laiksi sen lainsäädännön alaan kuuluvien määräysten voimaansaattamisesta’ (HE 23/2008 vp) gives a fairly detailed description of Article 61g TFEU (ToL), renumbered Article 74 TFEU on page 190.
The government remarks on the express intent to limit this cooperation to administrative matters, which leaves operational cooperation outside the scope of the provision.
The bill is available at:
http://www.finlex.fi/fi/esitykset/he/2008/20080023.pdf
The Swedish language version of the ratification bill ‘Regeringens proposition till Riksdagen med förslag om godkännande av Lissabonfördraget om ändring av fördraget om Europeiska unionen och fördraget om upprättandet av Europeiska gemenskapen och till lag om sättande i kraft av de bestämmelser i fördraget som hör till området för lagstiftningen’ (RP 23/2008 rp), contains the same remarks on page193.
The ratification bill in Swedish can be accessed at:
http://www.finlex.fi/sv/esitykset/he/2008/20080023.pdf
Ralf Grahn
Consolidated EU Treaties:
If you want to read or download the Council’s consolidated Treaty on European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU) as amended by the Lisbon Treaty, the original Treaty of Lisbon, the current TEU and TEC, the Draft Constitution, the Constitutional Treaty, or other consolidated language versions of the Lisbon Treaty TEU and TFEU, you find the needed information and links in the blawg post ‘Consolidated Treaty of Lisbon and other EU materials’ of 21 April 2008:
http://grahnlaw.blogspot.com/2008/04/consolidated-treaty-of-lisbon-and-other.html
We follow the relevant Lisbon Treaty provision during the treaty reform process and look at how Ireland informs its citizens ahead of the 12 June referendum as well as at what the governments of Sweden and Finland have commented.
***
Article 74 of the Treaty on the Functioning of the European Union (TFEU) is presented as it stands after the intergovernmental conference (IGC 2007) in the Treaty of Lisbon (ToL), renumbered and provisionally consolidated by the Council of the European Union (document 6655/08; page 97), with the location of the provision added from the table of equivalences (page 460 to 462):
Part Three ‘Policies and internal actions of the Union’
Title V TFEU ‘Area of freedom, security and justice’
Chapter 1 ‘General provisions’
Article 74 TFEU
(ex Article 66 TEC)
The Council shall adopt measures to ensure administrative cooperation between the relevant departments of the Member States in the areas covered by this Title, as well as between those departments and the Commission. It shall act on a Commission proposal, subject to Article 76, and after consulting the European Parliament.
***
In Article 2, point 64, of the Treaty of Lisbon (ToL) the intergovernmental conference (IGC 2007) agreed on the wording (as above) of the new Article 61g TFEU (ToL), which became Article 74 TFEU after renumbering in the consolidated version. The referral in the original Lisbon Treaty was to Article 61i, which became Article 76 TFEU in the consolidated treaty (OJ 17.12.2007 C 308/58).
***
Article 66 of the Treaty establishing the European Community (TEC), to be replaced, is found in the latest consolidated version of the current treaties (OJ 29.12.2006 C 321 E/69):
Article 66 TEC
The Council, acting in accordance with the procedure referred to in Article 67, shall take measures to ensure cooperation between the relevant departments of the administrations of the Member States in the areas covered by this title, as well as between those departments and the Commission.
***
The corresponding provision in the draft Treaty establishing a Constitution for Europe was Article III-164 (OJ 18.7.2003 C 169/58):
Article III-164 Draft Constitution
The Council of Ministers shall adopt European regulations to ensure administrative cooperation between the relevant departments of the Member States in the areas covered by this Chapter, as well as between those departments and the Commission. It shall act on a Commission proposal, without prejudice to Article III-165, and after consulting the European Parliament.
***
This is how Article III-263 of the Treaty establishing a Constitution for Europe looked as part of the IGC 2004 ‘acquis’ which formed the basis for the IGC 2007 leading to the Treaty of Lisbon (OJ 16.12.2004 C 310/114):
Article III-263 Constitution
The Council shall adopt European regulations to ensure administrative cooperation between the relevant departments of the Member States in the areas covered by this Chapter, as well as between those departments and the Commission. It shall act on a Commission proposal, subject to Article III-264, and after consulting the European Parliament.
***
What has changed along the way, if anything?
The current Article 66 TEC covers the present Title 4 on visas, asylum, immigration and other policies related to free movement of persons. Since the European Convention’s draft Constitution the intention has been to extend the scope to cover the whole area of freedom, security and justice.
The more developed system (taxonomy) of legislative acts in the draft Constitution and the Constitution was, of course, lost as part of the ‘constitutional concept’, so the Treaty of Lisbon reverted to the nondescript ‘measures’ to be adopted.
The Council adopts the measures by qualified majority voting (QMV), since Article 74 TFEU does not spell out a requirement of unanimity. Currently unanimous decisions apply within the third pillar questions on police and judicial cooperation in criminal matters according to Article 34(2) TEU, but qualified majority voting in first pillar matters.
The referral to Article 76 TFEU means that the measures concerning administrative cooperation in the areas of judicial cooperation in criminal matters (Chapter 4) and police cooperation (Chapter 5) can be adopted either on a proposal from the Commission or on the initiative of a quarter of the member states. Presently each member state has the right of initiative in these intergovernmental areas based on Article 34(2) TEU, so it is possible to speak about a residual right of initiative.
***
Administrative cooperation in general is mentioned in the Treaty of Lisbon as one of the new areas, where the EU has competence to carry out actions to support, coordinate or supplement the actions of the member states. See the Council’s consolidated version, Article 6(1)(g) TFEU, page 67.
***
Irish guides and summaries
When governments or other official bodies provide guides or summaries for the general public concerning the Treaty of Lisbon, the main aim has to be to present essentially correct information about the main changes in a fairly reader-friendly manner.
In its April 2008 White Paper ‘The EU Reform Treaty’ (page 67, point 9), the Department of Foreign Affairs of Ireland states that administrative co-operation between Member States is also envisaged.
The White Paper and a wealth other information in English and Gaelic is available on the web page ‘The EU Reform Treaty’ of the Department of Foreign Affairs:
http://www.reformtreaty.ie/
The upcoming 12 June 2008 Irish referendum on the Treaty of Lisbon has led to a lively debate about the advantages and disadvantages of the amending treaties as well the need for factual information. The National Forum of Europe serves both purposes:
http://www.forumoneurope.ie/
The National Forum on Europe has published ‘A Summary Guide to the Treaty of Lisbon (EU Reform Treaty)’, in English and Irish. The guides are available at:
http://www.forumoneurope.ie/eng/index.asp?docID=1489
The Summary mentions ‘Administrative cooperation within the area of freedom, security and justice after consulting the European Parliament’ as one of the new or TFEU areas changed to QMV. Although the change actually applies only to the current intergovernmental fields, the Summary sums it up as well as can be expected in an abbreviated form.
In my opinion, the White Paper and the Summary impart essentially correct information concerning this point to the Irish voters (and to other interested persons).
Would it be too much to ask campaigners to adhere to the same standards of objectivity with regard to facts? Nobody restricts the freedom to form positive or negative opinions about the consequences of the Lisbon Treaty, but it would certainly raise the standard of the debate and the possibility of informed choice if all sides adhered to basic requirements of truthful representation of facts and expressed opinions based on these facts.
The IIEA’s Consolidated and Annotated Version of the Treaties, by Peadar ó Broin, is available at:
http://www.epin.org/new/home
***
Sweden
The consultation paper of the government of Sweden, ‘Lissabonfördraget; Statsrådsberedningen, Departementsserien (Ds), Ds 2007:48’ published 20 December 2007, dedicates a paragraph on page 304 ‘Administrativt samarbete’ to administrative cooperation. The essential statement is that the provision is extended to police and criminal justice cooperation.
The consultation paper ’Lissabonfördraget’ is available at:
http://www.regeringen.se/content/1/c6/09/49/81/107aa077.pdf
***
Finland
The Finnish ratification bill ‘Hallituksen esitys Eduskunnalle Euroopan unionista tehdyn sopimuksen ja Euroopan yhteisön perustamissopimuksen muuttamisesta tehdyn Lissabonin sopimuksen hyväksymisestä ja laiksi sen lainsäädännön alaan kuuluvien määräysten voimaansaattamisesta’ (HE 23/2008 vp) gives a fairly detailed description of Article 61g TFEU (ToL), renumbered Article 74 TFEU on page 190.
The government remarks on the express intent to limit this cooperation to administrative matters, which leaves operational cooperation outside the scope of the provision.
The bill is available at:
http://www.finlex.fi/fi/esitykset/he/2008/20080023.pdf
The Swedish language version of the ratification bill ‘Regeringens proposition till Riksdagen med förslag om godkännande av Lissabonfördraget om ändring av fördraget om Europeiska unionen och fördraget om upprättandet av Europeiska gemenskapen och till lag om sättande i kraft av de bestämmelser i fördraget som hör till området för lagstiftningen’ (RP 23/2008 rp), contains the same remarks on page193.
The ratification bill in Swedish can be accessed at:
http://www.finlex.fi/sv/esitykset/he/2008/20080023.pdf
Ralf Grahn
Consolidated EU Treaties:
If you want to read or download the Council’s consolidated Treaty on European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU) as amended by the Lisbon Treaty, the original Treaty of Lisbon, the current TEU and TEC, the Draft Constitution, the Constitutional Treaty, or other consolidated language versions of the Lisbon Treaty TEU and TFEU, you find the needed information and links in the blawg post ‘Consolidated Treaty of Lisbon and other EU materials’ of 21 April 2008:
http://grahnlaw.blogspot.com/2008/04/consolidated-treaty-of-lisbon-and-other.html
Sunday, 27 April 2008
EU TFEU: Member states and national security cooperation
As a corollary to the exclusionary powers of each member state to provide ‘national security’, the Treaty of Lisbon spells out the freedom of the member states of the European Union to cooperate and coordinate their actions as the see fit, outside the EU structures and under their responsibility.
Is this a fruitful approach to enhancing the security for EU citizens?
***
Article 73 of the Treaty on the Functioning of the European Union (TFEU) is presented as it stands after the intergovernmental conference (IGC 2007) in the Treaty of Lisbon (ToL), renumbered and provisionally consolidated by the Council of the European Union (document 6655/08; page 97), with the location of the provision added from the table of equivalences (page 460 to 462):
Part Three ‘Policies and internal actions of the Union’
Title V TFEU ‘Area of freedom, security and justice’
Chapter 1 ‘General provisions’
Article 73 TFEU
It shall be open to Member States to organise between themselves and under their responsibility such forms of cooperation and coordination as they deem appropriate between the competent departments of their administrations responsible for safeguarding national security.
***
In Article 2, point 64, of the Treaty of Lisbon (ToL) the intergovernmental conference (IGC 2007) agreed on the wording (as above) of the new Article 61f TFEU (ToL), which became Article 73 TFEU after renumbering in the consolidated version (OJ 17.12.2007 C 308/58).
***
The IGC 2007 Mandate mentioned the insertion of a provision about cooperation and coordination by member states in the field of national security as one of the modifications compared to the results of the IGC 2004 (Council document 11218/07, pages 7 – 8, point 19j). Point 2(a) of Annex 2 (page 15) spelt out the text of what then called the ‘following new second subparagraph’, but became Article 73 TFEU with almost identical wording.
Annex 1, point 4 (page 12), contained the amendments to be made in what was to become Article 4 TEU, including the sentence added to the end of the second paragraph: ‘In particular, national security remains the sole responsibility of each Member State’. – We mentioned the amended Article 4(2) TEU in yesterday’s post on Article 72 TFEU, when we wondered at what appeared to be a lack of discussion on the merits of this go-it-alone approach.
***
As the brainchild of the IGC 2007, Article 73 TFEU has no corresponding provision in the current treaties, the draft Constitution or the Constitutional Treaty.
***
Here are a few thoughts for you, dear readers, to develop further and possibly to discuss:
The member states of the European Union have introduced the term ‘national security’ into the EU treaties.
‘National security’ has been resolutely excluded from the scope of EU competences, by declaring it to be the sole responsibility of each member state, while ‘internal security’ is to some extent an area for EU action.
Member states may (as a meaningless consolation?) or may not cooperate or coordinate their actions between themselves in the field of ‘national security’, outside the EU structures and under their sole responsibility, as they see fit.
The only treaty obligations coming to my mind at this point seem to be of a negative kind and quite general in nature: to refrain from any measure which could jeopardise the attainment of the Union’s objectives (Article 4(3) TEU).
The troubling aspect is that ‘national security’ is centred on exclusionary turf thinking – to shut the EU and the other member states out from meddling in ‘our’ affairs – while evading the questions about what would be conducive to an enhanced level of security for citizens of the European Union.
Are the public goods delivered less important than the monopoly to handle or mishandle these affairs?
Ralf Grahn
Consolidated EU Treaties:
If you want to read or download the Council’s consolidated Treaty on European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU) as amended by the Lisbon Treaty, the original Treaty of Lisbon, the current TEU and TEC, the Draft Constitution, the Constitutional Treaty, or other consolidated language versions of the Lisbon Treaty TEU and TFEU, you find the needed information and links in the blawg post ‘Consolidated Treaty of Lisbon and other EU materials’ of 21 April 2008:
http://grahnlaw.blogspot.com/2008/04/consolidated-treaty-of-lisbon-and-other.html
Is this a fruitful approach to enhancing the security for EU citizens?
***
Article 73 of the Treaty on the Functioning of the European Union (TFEU) is presented as it stands after the intergovernmental conference (IGC 2007) in the Treaty of Lisbon (ToL), renumbered and provisionally consolidated by the Council of the European Union (document 6655/08; page 97), with the location of the provision added from the table of equivalences (page 460 to 462):
Part Three ‘Policies and internal actions of the Union’
Title V TFEU ‘Area of freedom, security and justice’
Chapter 1 ‘General provisions’
Article 73 TFEU
It shall be open to Member States to organise between themselves and under their responsibility such forms of cooperation and coordination as they deem appropriate between the competent departments of their administrations responsible for safeguarding national security.
***
In Article 2, point 64, of the Treaty of Lisbon (ToL) the intergovernmental conference (IGC 2007) agreed on the wording (as above) of the new Article 61f TFEU (ToL), which became Article 73 TFEU after renumbering in the consolidated version (OJ 17.12.2007 C 308/58).
***
The IGC 2007 Mandate mentioned the insertion of a provision about cooperation and coordination by member states in the field of national security as one of the modifications compared to the results of the IGC 2004 (Council document 11218/07, pages 7 – 8, point 19j). Point 2(a) of Annex 2 (page 15) spelt out the text of what then called the ‘following new second subparagraph’, but became Article 73 TFEU with almost identical wording.
Annex 1, point 4 (page 12), contained the amendments to be made in what was to become Article 4 TEU, including the sentence added to the end of the second paragraph: ‘In particular, national security remains the sole responsibility of each Member State’. – We mentioned the amended Article 4(2) TEU in yesterday’s post on Article 72 TFEU, when we wondered at what appeared to be a lack of discussion on the merits of this go-it-alone approach.
***
As the brainchild of the IGC 2007, Article 73 TFEU has no corresponding provision in the current treaties, the draft Constitution or the Constitutional Treaty.
***
Here are a few thoughts for you, dear readers, to develop further and possibly to discuss:
The member states of the European Union have introduced the term ‘national security’ into the EU treaties.
‘National security’ has been resolutely excluded from the scope of EU competences, by declaring it to be the sole responsibility of each member state, while ‘internal security’ is to some extent an area for EU action.
Member states may (as a meaningless consolation?) or may not cooperate or coordinate their actions between themselves in the field of ‘national security’, outside the EU structures and under their sole responsibility, as they see fit.
The only treaty obligations coming to my mind at this point seem to be of a negative kind and quite general in nature: to refrain from any measure which could jeopardise the attainment of the Union’s objectives (Article 4(3) TEU).
The troubling aspect is that ‘national security’ is centred on exclusionary turf thinking – to shut the EU and the other member states out from meddling in ‘our’ affairs – while evading the questions about what would be conducive to an enhanced level of security for citizens of the European Union.
Are the public goods delivered less important than the monopoly to handle or mishandle these affairs?
Ralf Grahn
Consolidated EU Treaties:
If you want to read or download the Council’s consolidated Treaty on European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU) as amended by the Lisbon Treaty, the original Treaty of Lisbon, the current TEU and TEC, the Draft Constitution, the Constitutional Treaty, or other consolidated language versions of the Lisbon Treaty TEU and TFEU, you find the needed information and links in the blawg post ‘Consolidated Treaty of Lisbon and other EU materials’ of 21 April 2008:
http://grahnlaw.blogspot.com/2008/04/consolidated-treaty-of-lisbon-and-other.html
Saturday, 26 April 2008
EU TFEU: Member states and internal security
The UK government has stressed the importance of retaining full control of national security. But a quick view at Lisbon Treaty provisions concerning ‘internal security’ and ‘national security’ fails to unearth substantial evidence on or even discussion about how the government’s approach will enhance the security of British nationals (or EU citizens).
Surely, there must be people who have studied these matters more closely. Would it be too much to ask them to bring forward more developed thoughts than the questions raised in this brief introduction?
***
Article 72 of the Treaty on the Functioning of the European Union (TFEU) is presented as it stands after the intergovernmental conference (IGC 2007) in the Treaty of Lisbon (ToL), renumbered and provisionally consolidated by the Council of the European Union (document 6655/08; page 97), with the location of the provision added from the table of equivalences (page 460 to 462):
Part Three ‘Policies and internal actions of the Union’
Title V TFEU ‘Area of freedom, security and justice’
Chapter 1 ‘General provisions’
Article 72 TFEU
(ex Article 64(1) TEC and ex Article 33 TEU)
This Title shall not affect the exercise of the responsibilities incumbent upon Member States with regard to the maintenance of law and order and the safeguarding of internal security.
***
In Article 2, point 64, of the Treaty of Lisbon the intergovernmental conference presented the wording (as above) of the new Article 61e ToL, which became Article 72 TFEU after renumbering in the consolidated version (OJ 17.12.2007 C 306/57).
***
Article 64(1) of the Treaty establishing the European Community (TEC) and Article 33 of the Treaty on European Union (TEU), to be replaced, are found in the latest consolidated version of the treaties, published in the Official Journal, OJ 29.12.2006 C 321 E/68 and 26, respectively:
Article 64(1) TEC
1. This title shall not affect the exercise of the responsibilities incumbent upon Member States with regard to the maintenance of law and order and the safeguarding of internal security.
Article 33 TEU
This title shall not affect the exercise of the responsibilities incumbent upon Member States with regard to the maintenance of law and order and the safeguarding of internal security.
***
In line with its general aim to achieve a (more or less) unified structure for the area of freedom, security and justice, the European Convention amalgamated the two separate provisions for the two different pillars into one Article III-163 of the draft Treaty establishing a Constitution for Europe, with minute change to the wording (OJ 18.7.2003 C 169/58).
***
The Treaty establishing a Constitution for Europe took over the draft text with only different numbering of the provision and minor change in wording in Article III-262 (OJ 16.12.2004 C 310/114).
***
The European Convention initiated the abolition of the pillar structure in justice and home affairs, by proposing to bring TEC Title IV on visas, asylum, immigration and other policies related to the free movement of persons and TEU Title VI with provisions on police and judicial cooperation in criminal matters under one roof, namely the area of freedom, security and justice.
The merger of two provisions with the same contents into one Article 72 TFEU (Article 61e according to the original ToL numbering) is but the logical consequence of this move towards greater inner consistency.
On the other hand, the provision must be seen against the background of the two last sentences of Article 4(2) TEU, where ‘law and order’ is mentioned among essential state functions, and ‘national security’ is emphasised twice, both as an essential state function and as the sole responsibility of each member state (Council’s consolidation, document 6655/08, page 22):
Article 4(2) TEU
“2. The Union shall respect the equality of Member States before the Treaties as well as their national identities, inherent in their fundamental structures, political and constitutional, inclusive of regional and local self-government. It shall respect their essential State functions, including ensuring the territorial integrity of the State, maintaining law and order and safeguarding national security. In particular, national security remains the sole responsibility of each Member State.”
Strictly speaking, Article 72 TFEU looks like an unnecessary (part) repetition of the limitations on EU competences mentioned in Article 4(2) TEU.
***
Yesterday’s post ‘EU TFEU: Internal security committee’ referred the reader to the discussion in the UK House of Lords European Union Committee report on the impact of the Treaty of Lisbon, as regards the relative merits of terms ‘internal security’ and ‘national security’.
This discussion is not new, but part of an ongoing debate which surfaced at least during the work of the European Convention. Étienne de Poncins, who worked in the Secretariat of the Convention, commented on in his book ‘Vers une Constitution européenne’ (Éditions 10/18, 2003), page 357:
« Commentaire : un débat feutré a porté sur l’éventuel remplacement de la notion de « sédurité intérieure » par celle de « sécurité nationale », considérée comme plus vaste et plus protectrice des actions conduites par certains services spécialisés. Il n’a pas abouti, le texte ‘etant maintenu inchangé par rapport à l’actuel article 33 TUE. »
The view may have been correct at the time, but the amended TEU introduces and underlines the term ‘national security’ while the TFEU provision continues to speak of ‘internal security’.
The UK House of Commons Library Research Paper 08/09 ‘The Treaty of Lisbon: amendments to the Treaty on European Union’ (published 24 January 2008; page 22 - 23) stated that ‘of particular importance to the British Government, Lisbon adds that “in particular, national security remains the sole responsibility of each Member State”.’
What can be more official than a government statement on the British position as regards negotiations to reform and improve the European Union? In the FCO Command Paper ‘The Reform Treaty, The British Approach to the European Union Intergovernmental Conference, July 2007’, Prime Minister Gordon Brown saw fit to stress the following goals and achievements (page 1):
“Ahead of the June European Council, we set out our red lines to ensure that there would not be a transfer of power away from the UK on issues of fundamental importance to our sovereignty. The Mandate for the new amending Treaty meets these red lines. It ensures that our existing labour and social legislation remains intact; protects our common law system, police and judicial processes, as well as our tax and social security systems; and preserves our independent foreign and defence policy. In addition, the Treaty will make clear for the first time that national security remains a matter for Member States.”
On page 10, the UK government added some detail to its line on national security:
“The Government also secured an important exemption for national security from the scope of the Treaty: for the first time, the new Treaty will state, explicitly, that national security remains the sole responsibility of each Member State. This is an important clarification, and will ensure that the UK will retain full control of matters relating to national security.”
The importance of the UK retaining full control of matters relating to national security was underlined a few more times in the position paper, but without elucidating or evaluating how this go-it-alone approach would enhance the security of UK (or EU) citizens.
***
Ireland
In its April 2008 White Paper ‘The EU Reform Treaty’ (page 67, point 10), the Department of Foreign Affairs of Ireland states that the responsibilities of the member states for the maintenance of law and order and internal security are unaffected by the Reform Treaty.
The White Paper is an option for those who want to find out the main points of the Lisbon Treaty in some detail, but still in a readable form. The White Paper and a wealth other information in English and Gaelic is available on the web page ‘The EU Reform Treaty’ of the Department of Foreign Affairs:
http://www.reformtreaty.ie/
The upcoming 12 June 2008 Irish referendum on the Treaty of Lisbon has led to a lively debate about the advantages and disadvantages of the amending treaties as well the need for factual information. The National Forum of Europe serves both purposes:
http://www.forumoneurope.ie/
The National Forum on Europe has published ‘A Summary Guide to the Treaty of Lisbon (EU Reform Treaty)’, in English and Irish. The guides are available at:
http://www.forumoneurope.ie/eng/index.asp?docID=1489
The Institute of European Affairs did a sterling job in publishing consolidated versions of the treaties as amended by the Treaty of Lisbon, well ahead of the consolidations by the EU Council. They are available at:
http://www.iiea.com/publicationxtest.php?publication_id=33
***
United Kingdom
Since English is the main language of more than a half of the readers of this blog, there is cause to mention a few British resources on the Lisbon Treaty, too.
What changes? ‘A comparative table of the current EC and EU treaties as amended by the Treaty of Lisbon’, published by the UK foreign and Commonwealth Office (Command Paper 7311; published 21 January 2008), offers an opportunity for instant orientation with its annotations in telegraphic style. As an example, today’s Article 72 TFEU (61e ToL): ‘Unchanged from Article 33 TEU and Article 64(1) TEC.’
The Comparative Table is available at:
http://www.official-documents.gov.uk/document/cm73/7311/7311.pdf
The House of Commons Library Research Paper 07/86 ‘The Treaty of Lisbon: amendments to the Treaty establishing the European Community’ (published 6 December 2007) mentions the amendments, sometimes with more detailed comments. Today’s provision received the following treatment:
‘Article 61E (Constitution Article III-262) confirms that this title will not affect the responsibility of Member States with regard to the maintenance of law and order and the safeguarding of internal security. It adds a new element not in the Constitution that Member States may decide to cooperate and coordinate among themselves in safeguarding national security.’
(Actually, the latter sentence referred to the following provision, Article 61f in the ToL version, renumbered Article 73 TFEU, at least in the form the treaty was signed.)
The Library Research Paper 07/86 is accessible at:
http://www.parliament.uk/commons/lib/research/rp2007/rp07-086.pdf
In Statewatch analysis, EU Reform Treaty: analysis 1: Version 3 JHA provisions (22 October 2007), Professor Steve Peers highlights the differences between the current treaties, the Constitutional Treaty and the Lisbon Treaty TFEU, and he offers short comments on the principal changes. Available together with the other analyses, which together cover all the treaty areas, through:
http://www.statewatch.org/euconstitution.htm
In the context of justice and home affairs (JHA), readers in Great Britain and Ireland (and Denmark) can turn ‘Analysis no. 4: British and Irish opt-outs from EU Justice and Home Affairs (JHA) law’ (Version 2: 26 October 2007), where Peers sorts out the complex special arrangements for the countries that remain (partly) outside this emerging core policy area.
Since the treaty provision we look at today offers nothing more than the merger of two current provisions, Peers comments briefly: ‘This Article is identical to the current Article 33 TEU and Afticle 64(1) TEC.’
The House of Lords European Union Committee report ‘The Treaty of Lisbon: an impact assessment, Volume I: Report’ (HL Paper 62-I, published 13 March 2008) discusses the area of freedom, security and justice at length (Chapter 6, pages 110 – 177).
The report is available at:
http://www.publications.parliament.uk/pa/ld200708/ldselect/ldeucom/62/62.pdf
The Committee dealt with the terms ‘internal security’ and ‘national security’ on page 157 to 159, and it ended up with the following conclusions:
“6.242. It may be significant that the Treaties for the first time make clear that national security is a matter solely for the Member States.
6.243. It is unfortunate that a number of provisions of the Treaties refer to “internal security” when the meaning of that expression is unclear.”
I found no substantial evaluation of the government’s goal to exclude or limit the competence of the European Union with regard to security, either internal or national.
But perhaps someone knows where to find the reasons, what they are and how well they stand up to scrutiny?
Ralf Grahn
EU Treaty materials:
If you want to read or download the Council’s consolidated Treaty on European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU) as amended by the Lisbon Treaty, the original Treaty of Lisbon, the current TEU and TEC, the Draft Constitution, the Constitutional Treaty, or other consolidated language versions of the Lisbon Treaty TEU and TFEU, you find the needed information and links in the blawg post ‘Consolidated Treaty of Lisbon and other EU materials’ of 21 April 2008:
http://grahnlaw.blogspot.com/2008/04/consolidated-treaty-of-lisbon-and-other.html
Surely, there must be people who have studied these matters more closely. Would it be too much to ask them to bring forward more developed thoughts than the questions raised in this brief introduction?
***
Article 72 of the Treaty on the Functioning of the European Union (TFEU) is presented as it stands after the intergovernmental conference (IGC 2007) in the Treaty of Lisbon (ToL), renumbered and provisionally consolidated by the Council of the European Union (document 6655/08; page 97), with the location of the provision added from the table of equivalences (page 460 to 462):
Part Three ‘Policies and internal actions of the Union’
Title V TFEU ‘Area of freedom, security and justice’
Chapter 1 ‘General provisions’
Article 72 TFEU
(ex Article 64(1) TEC and ex Article 33 TEU)
This Title shall not affect the exercise of the responsibilities incumbent upon Member States with regard to the maintenance of law and order and the safeguarding of internal security.
***
In Article 2, point 64, of the Treaty of Lisbon the intergovernmental conference presented the wording (as above) of the new Article 61e ToL, which became Article 72 TFEU after renumbering in the consolidated version (OJ 17.12.2007 C 306/57).
***
Article 64(1) of the Treaty establishing the European Community (TEC) and Article 33 of the Treaty on European Union (TEU), to be replaced, are found in the latest consolidated version of the treaties, published in the Official Journal, OJ 29.12.2006 C 321 E/68 and 26, respectively:
Article 64(1) TEC
1. This title shall not affect the exercise of the responsibilities incumbent upon Member States with regard to the maintenance of law and order and the safeguarding of internal security.
Article 33 TEU
This title shall not affect the exercise of the responsibilities incumbent upon Member States with regard to the maintenance of law and order and the safeguarding of internal security.
***
In line with its general aim to achieve a (more or less) unified structure for the area of freedom, security and justice, the European Convention amalgamated the two separate provisions for the two different pillars into one Article III-163 of the draft Treaty establishing a Constitution for Europe, with minute change to the wording (OJ 18.7.2003 C 169/58).
***
The Treaty establishing a Constitution for Europe took over the draft text with only different numbering of the provision and minor change in wording in Article III-262 (OJ 16.12.2004 C 310/114).
***
The European Convention initiated the abolition of the pillar structure in justice and home affairs, by proposing to bring TEC Title IV on visas, asylum, immigration and other policies related to the free movement of persons and TEU Title VI with provisions on police and judicial cooperation in criminal matters under one roof, namely the area of freedom, security and justice.
The merger of two provisions with the same contents into one Article 72 TFEU (Article 61e according to the original ToL numbering) is but the logical consequence of this move towards greater inner consistency.
On the other hand, the provision must be seen against the background of the two last sentences of Article 4(2) TEU, where ‘law and order’ is mentioned among essential state functions, and ‘national security’ is emphasised twice, both as an essential state function and as the sole responsibility of each member state (Council’s consolidation, document 6655/08, page 22):
Article 4(2) TEU
“2. The Union shall respect the equality of Member States before the Treaties as well as their national identities, inherent in their fundamental structures, political and constitutional, inclusive of regional and local self-government. It shall respect their essential State functions, including ensuring the territorial integrity of the State, maintaining law and order and safeguarding national security. In particular, national security remains the sole responsibility of each Member State.”
Strictly speaking, Article 72 TFEU looks like an unnecessary (part) repetition of the limitations on EU competences mentioned in Article 4(2) TEU.
***
Yesterday’s post ‘EU TFEU: Internal security committee’ referred the reader to the discussion in the UK House of Lords European Union Committee report on the impact of the Treaty of Lisbon, as regards the relative merits of terms ‘internal security’ and ‘national security’.
This discussion is not new, but part of an ongoing debate which surfaced at least during the work of the European Convention. Étienne de Poncins, who worked in the Secretariat of the Convention, commented on in his book ‘Vers une Constitution européenne’ (Éditions 10/18, 2003), page 357:
« Commentaire : un débat feutré a porté sur l’éventuel remplacement de la notion de « sédurité intérieure » par celle de « sécurité nationale », considérée comme plus vaste et plus protectrice des actions conduites par certains services spécialisés. Il n’a pas abouti, le texte ‘etant maintenu inchangé par rapport à l’actuel article 33 TUE. »
The view may have been correct at the time, but the amended TEU introduces and underlines the term ‘national security’ while the TFEU provision continues to speak of ‘internal security’.
The UK House of Commons Library Research Paper 08/09 ‘The Treaty of Lisbon: amendments to the Treaty on European Union’ (published 24 January 2008; page 22 - 23) stated that ‘of particular importance to the British Government, Lisbon adds that “in particular, national security remains the sole responsibility of each Member State”.’
What can be more official than a government statement on the British position as regards negotiations to reform and improve the European Union? In the FCO Command Paper ‘The Reform Treaty, The British Approach to the European Union Intergovernmental Conference, July 2007’, Prime Minister Gordon Brown saw fit to stress the following goals and achievements (page 1):
“Ahead of the June European Council, we set out our red lines to ensure that there would not be a transfer of power away from the UK on issues of fundamental importance to our sovereignty. The Mandate for the new amending Treaty meets these red lines. It ensures that our existing labour and social legislation remains intact; protects our common law system, police and judicial processes, as well as our tax and social security systems; and preserves our independent foreign and defence policy. In addition, the Treaty will make clear for the first time that national security remains a matter for Member States.”
On page 10, the UK government added some detail to its line on national security:
“The Government also secured an important exemption for national security from the scope of the Treaty: for the first time, the new Treaty will state, explicitly, that national security remains the sole responsibility of each Member State. This is an important clarification, and will ensure that the UK will retain full control of matters relating to national security.”
The importance of the UK retaining full control of matters relating to national security was underlined a few more times in the position paper, but without elucidating or evaluating how this go-it-alone approach would enhance the security of UK (or EU) citizens.
***
Ireland
In its April 2008 White Paper ‘The EU Reform Treaty’ (page 67, point 10), the Department of Foreign Affairs of Ireland states that the responsibilities of the member states for the maintenance of law and order and internal security are unaffected by the Reform Treaty.
The White Paper is an option for those who want to find out the main points of the Lisbon Treaty in some detail, but still in a readable form. The White Paper and a wealth other information in English and Gaelic is available on the web page ‘The EU Reform Treaty’ of the Department of Foreign Affairs:
http://www.reformtreaty.ie/
The upcoming 12 June 2008 Irish referendum on the Treaty of Lisbon has led to a lively debate about the advantages and disadvantages of the amending treaties as well the need for factual information. The National Forum of Europe serves both purposes:
http://www.forumoneurope.ie/
The National Forum on Europe has published ‘A Summary Guide to the Treaty of Lisbon (EU Reform Treaty)’, in English and Irish. The guides are available at:
http://www.forumoneurope.ie/eng/index.asp?docID=1489
The Institute of European Affairs did a sterling job in publishing consolidated versions of the treaties as amended by the Treaty of Lisbon, well ahead of the consolidations by the EU Council. They are available at:
http://www.iiea.com/publicationxtest.php?publication_id=33
***
United Kingdom
Since English is the main language of more than a half of the readers of this blog, there is cause to mention a few British resources on the Lisbon Treaty, too.
What changes? ‘A comparative table of the current EC and EU treaties as amended by the Treaty of Lisbon’, published by the UK foreign and Commonwealth Office (Command Paper 7311; published 21 January 2008), offers an opportunity for instant orientation with its annotations in telegraphic style. As an example, today’s Article 72 TFEU (61e ToL): ‘Unchanged from Article 33 TEU and Article 64(1) TEC.’
The Comparative Table is available at:
http://www.official-documents.gov.uk/document/cm73/7311/7311.pdf
The House of Commons Library Research Paper 07/86 ‘The Treaty of Lisbon: amendments to the Treaty establishing the European Community’ (published 6 December 2007) mentions the amendments, sometimes with more detailed comments. Today’s provision received the following treatment:
‘Article 61E (Constitution Article III-262) confirms that this title will not affect the responsibility of Member States with regard to the maintenance of law and order and the safeguarding of internal security. It adds a new element not in the Constitution that Member States may decide to cooperate and coordinate among themselves in safeguarding national security.’
(Actually, the latter sentence referred to the following provision, Article 61f in the ToL version, renumbered Article 73 TFEU, at least in the form the treaty was signed.)
The Library Research Paper 07/86 is accessible at:
http://www.parliament.uk/commons/lib/research/rp2007/rp07-086.pdf
In Statewatch analysis, EU Reform Treaty: analysis 1: Version 3 JHA provisions (22 October 2007), Professor Steve Peers highlights the differences between the current treaties, the Constitutional Treaty and the Lisbon Treaty TFEU, and he offers short comments on the principal changes. Available together with the other analyses, which together cover all the treaty areas, through:
http://www.statewatch.org/euconstitution.htm
In the context of justice and home affairs (JHA), readers in Great Britain and Ireland (and Denmark) can turn ‘Analysis no. 4: British and Irish opt-outs from EU Justice and Home Affairs (JHA) law’ (Version 2: 26 October 2007), where Peers sorts out the complex special arrangements for the countries that remain (partly) outside this emerging core policy area.
Since the treaty provision we look at today offers nothing more than the merger of two current provisions, Peers comments briefly: ‘This Article is identical to the current Article 33 TEU and Afticle 64(1) TEC.’
The House of Lords European Union Committee report ‘The Treaty of Lisbon: an impact assessment, Volume I: Report’ (HL Paper 62-I, published 13 March 2008) discusses the area of freedom, security and justice at length (Chapter 6, pages 110 – 177).
The report is available at:
http://www.publications.parliament.uk/pa/ld200708/ldselect/ldeucom/62/62.pdf
The Committee dealt with the terms ‘internal security’ and ‘national security’ on page 157 to 159, and it ended up with the following conclusions:
“6.242. It may be significant that the Treaties for the first time make clear that national security is a matter solely for the Member States.
6.243. It is unfortunate that a number of provisions of the Treaties refer to “internal security” when the meaning of that expression is unclear.”
I found no substantial evaluation of the government’s goal to exclude or limit the competence of the European Union with regard to security, either internal or national.
But perhaps someone knows where to find the reasons, what they are and how well they stand up to scrutiny?
Ralf Grahn
EU Treaty materials:
If you want to read or download the Council’s consolidated Treaty on European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU) as amended by the Lisbon Treaty, the original Treaty of Lisbon, the current TEU and TEC, the Draft Constitution, the Constitutional Treaty, or other consolidated language versions of the Lisbon Treaty TEU and TFEU, you find the needed information and links in the blawg post ‘Consolidated Treaty of Lisbon and other EU materials’ of 21 April 2008:
http://grahnlaw.blogspot.com/2008/04/consolidated-treaty-of-lisbon-and-other.html
Friday, 25 April 2008
EU reintroducing the death penalty?
Are these the words you would associate with an organisation bent on reintroducing the death penalty?
Here is the text from the Council of the European Union:
“COUNCIL OF THE EUROPEAN UNION
EN
Brussels, 25 April 2008
8767/08 (Presse 110)
P 57
Declaration by the Presidency on behalf of the EU concerning the death penalty in the USA
On September 11, 2007 the Ambassadors of the European Union in Washington appealed to the Governor of Kentucky, the Honorable Ernie Fletcher to spare the life of Mr Ralph Baze, whose execution would have broken a de facto moratorium that was in place within the State of Kentucky since 1999.
On 16 April 2008, the United States Supreme Court issued a ruling in Mr Baze's case which will allow the continued use of lethal injection as practiced by the State of Kentucky. The European Union notes with disappointment the United State Supreme Court's decision in this case and renews its call on Governor Fletcher to commute the
sentence of Mr. Baze.
The EU reiterates its longstanding position against the death penalty in all circumstances and accordingly strives to achieve its universal abolition, seeking a global moratorium on the death penalty as the first step. We believe that the elimination of the death penalty is fundamental to the protection of human dignity, and to the progressive development of human rights.
The EU recalls that on 18 December 2007, the United Nations General Assembly adopted a resolution on a Moratorium on the use of the death penalty, which explicitly calls upon all States that still maintain the death penalty to establish a moratorium on executions with a view to abolishing the death penalty
The EU recalls that any miscarriage or failure of justice in the application of capital punishment represents an irreparable and irreversible loss of human life. No legal system is immune from mistakes and there is no reliable evidence that the death penalty provides added value in terms of deterrence.
In light of this US Supreme Court decision, we strongly encourage the continuation of the de facto moratorium in place within the United States allowing the ongoing debate on the complex issues involved to be thoroughly deliberated.
The Candidate Countries Turkey, Croatia* and the former Yugoslav Republic of Macedonia*, the Countries of the Stabilisation and Association Process and potential candidates Bosnia and Herzegovina, Montenegro, Serbia, and the EFTA countries Iceland, Liechtenstein and Norway, members of the European Economic Area, as well as Ukraine, the Republic of Moldova and Azerbaijan align themselves with this declaration.
* Croatia and the former Yugoslav Republic of Macedonia continue to be part of the
Stabilisation and Association Process.”
***
The pan-European Council of Europe has pioneered the work to abolish the death penalty, and membership in the Council of Europe can be seen as part of the admission criteria for membership in the European Union. The goal has been to abolish the death penalty once and for all, but the work has advanced in stages.
First came the abolition of the death penalty in general, but left the possibility for member states to use it in war or when war was imminent.
***
The EU Charter of Human Rights was prepared by the first EU Convention led by Roman Herzog, following the conclusions of the European Council in Cologne in 1999. The Charter was declared politically binding by the EU institutions in Nice in December 2000.
***
The Council of Europe Protocol number 13 on the abolition of the death penalty in all circumstances was signed 3 May 2002, and it entered into force 1 July 2003 after ten ratifications, just days before the European Convention published its final text of the draft Constitution. Anyway, the European Convention adopted the 2000 Charter and the Explanations with mainly technical modifications.
The Treaty establishing a Constitution for Europe took over the Charter inserted into the Treaty (as Part II), with technical adjustments and some limitations concerning its scope. Many of the EU member states ratified the Council of Europe Protocol 13 later, the latest entry into force seems to be France, 1 February 2008.
***
Today, there are still three EU members which have signed, but not ratified the Protocol numbered 13 on the abolition under all circumstances: Italy, Poland and Spain.
In other words, it has not been possible for the EU to update its reference to the European Convention on Human Rights or the Explanations (basically by the first European Union Convention in 2000), even in the context of the Treaty of Lisbon, because it would not have been covered by all members by the way of the additions (protocols) to the Human Rights Convention of the Council of Europe.
***
But if every single member state of the European Union is not yet legally bound by the Protocol 13 on the total abolition of capital punishment, it does not mean that the European Union is about to make a U-turn and start reintroducing the death penalty.
***
To conclude: 24 out of 27 member states are individually bound by their commitments to the European Human Rights Convention. There has been no opportunity to update the EU Charter or its Explanations. The EU as an organisation is dead set against the death penalty. The press release above is only the latest manifestation of the political will of the European Union.
To allege that the European Union has, on purpose, left a backdoor open in the Constitutional Treaty or the Treaty of Lisbon with the intent to reintroduce the death penalty, is contrary to facts and unsupported in law.
Ralf Grahn
P.S. Correction, 25 April 2008: There seems to be a fourth laggard among the EU member states in ratifying Protocol 13 to the European Convention for the Protection of Human Rights and Fundamental Freedoms, concerning the abolition of the death penalty in all circumstances: Latvia. - So 23 have ratified and four are still lagging behind. I hope that I got it right this time around. :-)
Here is the text from the Council of the European Union:
“COUNCIL OF THE EUROPEAN UNION
EN
Brussels, 25 April 2008
8767/08 (Presse 110)
P 57
Declaration by the Presidency on behalf of the EU concerning the death penalty in the USA
On September 11, 2007 the Ambassadors of the European Union in Washington appealed to the Governor of Kentucky, the Honorable Ernie Fletcher to spare the life of Mr Ralph Baze, whose execution would have broken a de facto moratorium that was in place within the State of Kentucky since 1999.
On 16 April 2008, the United States Supreme Court issued a ruling in Mr Baze's case which will allow the continued use of lethal injection as practiced by the State of Kentucky. The European Union notes with disappointment the United State Supreme Court's decision in this case and renews its call on Governor Fletcher to commute the
sentence of Mr. Baze.
The EU reiterates its longstanding position against the death penalty in all circumstances and accordingly strives to achieve its universal abolition, seeking a global moratorium on the death penalty as the first step. We believe that the elimination of the death penalty is fundamental to the protection of human dignity, and to the progressive development of human rights.
The EU recalls that on 18 December 2007, the United Nations General Assembly adopted a resolution on a Moratorium on the use of the death penalty, which explicitly calls upon all States that still maintain the death penalty to establish a moratorium on executions with a view to abolishing the death penalty
The EU recalls that any miscarriage or failure of justice in the application of capital punishment represents an irreparable and irreversible loss of human life. No legal system is immune from mistakes and there is no reliable evidence that the death penalty provides added value in terms of deterrence.
In light of this US Supreme Court decision, we strongly encourage the continuation of the de facto moratorium in place within the United States allowing the ongoing debate on the complex issues involved to be thoroughly deliberated.
The Candidate Countries Turkey, Croatia* and the former Yugoslav Republic of Macedonia*, the Countries of the Stabilisation and Association Process and potential candidates Bosnia and Herzegovina, Montenegro, Serbia, and the EFTA countries Iceland, Liechtenstein and Norway, members of the European Economic Area, as well as Ukraine, the Republic of Moldova and Azerbaijan align themselves with this declaration.
* Croatia and the former Yugoslav Republic of Macedonia continue to be part of the
Stabilisation and Association Process.”
***
The pan-European Council of Europe has pioneered the work to abolish the death penalty, and membership in the Council of Europe can be seen as part of the admission criteria for membership in the European Union. The goal has been to abolish the death penalty once and for all, but the work has advanced in stages.
First came the abolition of the death penalty in general, but left the possibility for member states to use it in war or when war was imminent.
***
The EU Charter of Human Rights was prepared by the first EU Convention led by Roman Herzog, following the conclusions of the European Council in Cologne in 1999. The Charter was declared politically binding by the EU institutions in Nice in December 2000.
***
The Council of Europe Protocol number 13 on the abolition of the death penalty in all circumstances was signed 3 May 2002, and it entered into force 1 July 2003 after ten ratifications, just days before the European Convention published its final text of the draft Constitution. Anyway, the European Convention adopted the 2000 Charter and the Explanations with mainly technical modifications.
The Treaty establishing a Constitution for Europe took over the Charter inserted into the Treaty (as Part II), with technical adjustments and some limitations concerning its scope. Many of the EU member states ratified the Council of Europe Protocol 13 later, the latest entry into force seems to be France, 1 February 2008.
***
Today, there are still three EU members which have signed, but not ratified the Protocol numbered 13 on the abolition under all circumstances: Italy, Poland and Spain.
In other words, it has not been possible for the EU to update its reference to the European Convention on Human Rights or the Explanations (basically by the first European Union Convention in 2000), even in the context of the Treaty of Lisbon, because it would not have been covered by all members by the way of the additions (protocols) to the Human Rights Convention of the Council of Europe.
***
But if every single member state of the European Union is not yet legally bound by the Protocol 13 on the total abolition of capital punishment, it does not mean that the European Union is about to make a U-turn and start reintroducing the death penalty.
***
To conclude: 24 out of 27 member states are individually bound by their commitments to the European Human Rights Convention. There has been no opportunity to update the EU Charter or its Explanations. The EU as an organisation is dead set against the death penalty. The press release above is only the latest manifestation of the political will of the European Union.
To allege that the European Union has, on purpose, left a backdoor open in the Constitutional Treaty or the Treaty of Lisbon with the intent to reintroduce the death penalty, is contrary to facts and unsupported in law.
Ralf Grahn
P.S. Correction, 25 April 2008: There seems to be a fourth laggard among the EU member states in ratifying Protocol 13 to the European Convention for the Protection of Human Rights and Fundamental Freedoms, concerning the abolition of the death penalty in all circumstances: Latvia. - So 23 have ratified and four are still lagging behind. I hope that I got it right this time around. :-)
EU TFEU: Internal security committee
Is this the new Ministry of the Interior of the European Union, with its henchmen ready to quash the cherished liberties of citizens of the member states in order to establish the Orwellian 1984 state?
I regret to announce that, yet again, conspiracy theorists would have to clear some virgin fields for scare-mongering, if the citizens of the European Union took the trouble to read the contents of the Treaty of Lisbon as regards justice and home affairs (JHA), or the area of freedom, security and justice (FSJ) as it is called, on the topic of the new internal security committee.
Regretfully? Well, life would be so much more colourful if the conspiracy theories were true.
***
Article 71 of the Treaty on the Functioning of the European Union (TFEU) is presented as it stands after the intergovernmental conference (IGC 2007) in the Treaty of Lisbon (ToL), renumbered and provisionally consolidated by the Council of the European Union (document 6655/08; page 97), with the location of the provision added from the table of equivalences (page 460 to 462):
Part Three ‘Policies and internal actions of the Union’
Title V TFEU ‘Area of freedom, security and justice’
Chapter 1 ‘General provisions’
Article 71TFEU
(ex Article 36 TEU)
A standing committee shall be set up within the Council in order to ensure that operational cooperation on internal security is promoted and strengthened within the Union. Without prejudice to Article 240, it shall facilitate coordination of the action of Member States' competent authorities. Representatives of the Union bodies, offices and agencies concerned may be involved in the proceedings of this committee. The European Parliament and national Parliaments shall be kept informed of the proceedings.
***
In Article 2, point 64, of the Treaty of Lisbon the intergovernmental conference presented the wording (as above) of the new Article 61d ToL, which became Article 71 TFEU after renumbering in the consolidated version (OJ 17.12.2007 C 306/57).
***
Article 36 of the Treaty on European Union (TEU), to be replaced, is found in the latest consolidated version of the treaties, published in the Official Journal, OJ 29.12.2006 C 321 E/28:
Article 36 TEU
1. A Coordinating Committee shall be set up consisting of senior officials. In addition to its coordinating role, it shall be the task of the Committee to:
— give opinions for the attention of the Council, either at the Council's request or on its own initiative,
— contribute, without prejudice to Article 207 of the Treaty establishing the European Community, to the preparation of the Council's discussions in the areas referred to in Article 29.
2. The Commission shall be fully associated with the work in the areas referred to in this title.
***
The European Convention proposed the following Article III-162 of the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/58):
Article III-162 Draft Constitution
A standing committee shall be set up within the Council of Ministers in order to ensure that operational cooperation on internal security is promoted and strengthened within the Union. Without prejudice to Article III-247, it shall facilitate coordination of the action of Member States' competent authorities. Representatives of the Union bodies and agencies concerned may be involved in the proceedings of this committee. The European Parliament and Member States' national parliaments shall be kept informed of the proceedings.
***
The Treaty establishing a Constitution for Europe took over the draft text with only different numbering of the provision and the referrals and minor change in Article III-261 (OJ 16.12.2004 C 310/114):
Article III-261 Constitution
A standing committee shall be set up within the Council in order to ensure that operational cooperation on internal security is promoted and strengthened within the Union. Without prejudice to Article III-344, it shall facilitate coordination of the action of Member States' competent authorities. Representatives of the Union bodies, offices and agencies concerned may be involved in the proceedings of this committee. The European Parliament and national Parliaments shall be kept informed of the proceedings.
***
The European Convention clarified the role of the committee by spelling out that its remit was internal security, instead of the current reference to ‘areas referred to in Article 29’, namely third pillar police and judicial cooperation in criminal matters.
The Constitutional Treaty and the Treaty of Lisbon brought only technical modifications.
***
Étienne de Poncins commented on the work of the European Convention in his book ‘Vers une Constitution européenne’ (Éditions 10/18, 2003), page 357:
« Commentaire : l’institution de ce comité est une des nouveautés proposées par la Convention dans la domaine de l’espace de liberté, de securité et de justice. Elle fait suite du constat de l’éclatment actuel des fonctions de coordination opérationelles entre les anciens piliers « communautaire » et « Justice et affaires intérieures » (JAI).
He then added a more audacious perspective, which has been more than fully extrapolated by some:
« Ce comité pourrait donner naissance à une structure opérationnelle préfigurant un état-major de police au niveau de l’Union européenne. Sa compétence devrait couvrir l’ensemble du champ de l’espace de l’espace de liberté, de securité et de justice, c’est-à-dire également la composante de contrôle des frontières extérieures. »
***
Ireland
In its April 2008 White Paper ‘The EU Reform Treaty’ (page 67, point 10), the Department of Foreign Affairs of Ireland mentions the new standing committee, but emphasises that the responsibilities of the member states for the maintenance of law and order and internal security are unaffected by the Reform Treaty.
The White Paper is an option for those who want to find out the main points of the Lisbon Treaty in some detail, but still in a readable form. The White Paper and a wealth other information in English and Gaelic is available at the web page ‘The EU Reform Treaty’ of the Department of Foreign Affairs:
http://www.reformtreaty.ie/
***
United Kingdom
The House of Lords European Union Committee report ‘The Treaty of Lisbon: an impact assessment, Volume I: Report’ (HL Paper 62-I, published 13 March 2008) discusses the new provision, Article 71 TFEU, setting up a standing committee within the Council. The UK government and the House Committee seemed to share a preference for the new treaty term ‘national security’ to underline areas that are the sole responsibility of the member states, in contrast to the phrase ‘internal security’, which could cover internal security both within member states and within the European Union. Se pages 158 and 159 (points 6.238 to 6.243).
The report is accessible at:
http://www.publications.parliament.uk/pa/ld200708/ldselect/ldeucom/62/62.pdf
Professor Steve Peers remarks that ‘This committee can be regarded as a successor to the current Article 36 Committee, which prepares the Council’s policing and criminal law work, although the new committee will have a wholly operational role’. – In Statewatch analysis, EU Reorm Treat: analysis 1: Version 3 JHA provisions (22 October 2007). Available together with the other analyses through:
http://www.statewatch.org/euconstitution.htm
***
Finland
The Finnish ratification bill ‘Hallituksen esitys Eduskunnalle Euroopan unionista tehdyn sopimuksen ja Euroopan yhteisön perustamissopimuksen muuttamisesta tehdyn Lissabonin sopimuksen hyväksymisestä ja laiksi sen lainsäädännön alaan kuuluvien määräysten voimaansaattamisesta’ (HE 23/2008 vp) describes the purpose and contents Article 61d TFEU (ToL), renumbered Article 71 TFEU on page 189.
The government remarks that it is the task of the committee to facilitate the coordination of member states’ action. The new committee is not intended to limit the powers of the committee of the permanent representatives of the governments of the member states (Coreper), as pointed out in Article 207 TFEU (ToL), now renumbered Article 240 TFEU (and found on page 202 of the Council’s consolidated version).
The remit of the new committee covers all questions concerning internal security. Thus, it is wider than that of the present Article 36 TEU committee, competent to deal only with questions pertaining to Article 29 TEU. Thus, the new committee can deal with, for instance, border control, asylum or immigration, although these questions are currently dealt with at committee level (SCIFA).
The bill is available at:
http://www.finlex.fi/fi/esitykset/he/2008/20080023.pdf
The Swedish language version of the ratification bill ‘Regeringens proposition till Riksdagen med förslag om godkännande av Lissabonfördraget om ändring av fördraget om Europeiska unionen och fördraget om upprättandet av Europeiska gemenskapen och till lag om sättande i kraft av de bestämmelser i fördraget som hör till området för lagstiftningen’ (RP 23/2008 rp), contains the same remarks on pages 192 and 193.
The ratification bill in Swedish can be accessed at:
http://www.finlex.fi/sv/esitykset/he/2008/20080023.pdf
***
Sweden
The consultation paper of the government of Sweden, ‘Lissabonfördraget; Statsrådsberedningen, Departementsserien (Ds), Ds 2007:48’ published 20 December 2007, mentions that the national parliaments and the European Parliament are to be kept informed about the operational committee (page 300).
Evaluating the results of the treaty negotiations, the Swedish government stresses the strategic national importance for Sweden of the continued development of the European police cooperation. The combat against for example trafficking in human beings, the illegal drugs trade and terrorism require well-working police and customs cooperation. The Treaty of Lisbon facilitates cross-border cooperation (page 326).
In a section on page 327, the Swedish government discusses the committee for operational cooperation. The government stresses the idea to focus on Union level strategic questions, and it mentions the role of the committee in the context of the solidarity clause. Additionally, the committee can serve as a forum for the exchange of experiences of work at the national level.
The consultation paper ’Lissabonfördraget’ is available at:
http://www.regeringen.se/content/1/c6/09/49/81/107aa077.pdf
***
Representatives of the Union bodies, offices and agencies concerned may be involved in the proceedings of the internal security committee, and the European Parliament and national Parliaments shall be kept informed of the proceedings, but the new permanent committee on internal security is explicitly set up within the Council, namely intergovernmentally.
While ‘internal security’ can mean both the protection of national citizens and of EU citizens, the proposed structures mean no wholesale adoption of a ‘Community’ approach to justice and home affairs, only a gradual realisation of the need for enhanced cooperation.
***
The committee on internal security looks like a parallel structure to the political and security committee covering the common foreign and security policy (mentioned in Articles 38 and 43 TEU and in Article 222 TFEU, following the numbering of the Council’s consolidated version).
Ralf Grahn
EU Treaty materials:
If you want to read or download the Council’s consolidated Treaty on European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU) as amended by the Lisbon Treaty, the original Treaty of Lisbon, the current TEU and TEC, the Draft Constitution, the Constitutional Treaty, or other consolidated language versions of the Lisbon Treaty TEU and TFEU, you find the needed information and links in the blawg post ‘Consolidated Treaty of Lisbon and other EU materials’ of 21 April 2008:
http://grahnlaw.blogspot.com/2008/04/consolidated-treaty-of-lisbon-and-other.html
I regret to announce that, yet again, conspiracy theorists would have to clear some virgin fields for scare-mongering, if the citizens of the European Union took the trouble to read the contents of the Treaty of Lisbon as regards justice and home affairs (JHA), or the area of freedom, security and justice (FSJ) as it is called, on the topic of the new internal security committee.
Regretfully? Well, life would be so much more colourful if the conspiracy theories were true.
***
Article 71 of the Treaty on the Functioning of the European Union (TFEU) is presented as it stands after the intergovernmental conference (IGC 2007) in the Treaty of Lisbon (ToL), renumbered and provisionally consolidated by the Council of the European Union (document 6655/08; page 97), with the location of the provision added from the table of equivalences (page 460 to 462):
Part Three ‘Policies and internal actions of the Union’
Title V TFEU ‘Area of freedom, security and justice’
Chapter 1 ‘General provisions’
Article 71TFEU
(ex Article 36 TEU)
A standing committee shall be set up within the Council in order to ensure that operational cooperation on internal security is promoted and strengthened within the Union. Without prejudice to Article 240, it shall facilitate coordination of the action of Member States' competent authorities. Representatives of the Union bodies, offices and agencies concerned may be involved in the proceedings of this committee. The European Parliament and national Parliaments shall be kept informed of the proceedings.
***
In Article 2, point 64, of the Treaty of Lisbon the intergovernmental conference presented the wording (as above) of the new Article 61d ToL, which became Article 71 TFEU after renumbering in the consolidated version (OJ 17.12.2007 C 306/57).
***
Article 36 of the Treaty on European Union (TEU), to be replaced, is found in the latest consolidated version of the treaties, published in the Official Journal, OJ 29.12.2006 C 321 E/28:
Article 36 TEU
1. A Coordinating Committee shall be set up consisting of senior officials. In addition to its coordinating role, it shall be the task of the Committee to:
— give opinions for the attention of the Council, either at the Council's request or on its own initiative,
— contribute, without prejudice to Article 207 of the Treaty establishing the European Community, to the preparation of the Council's discussions in the areas referred to in Article 29.
2. The Commission shall be fully associated with the work in the areas referred to in this title.
***
The European Convention proposed the following Article III-162 of the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/58):
Article III-162 Draft Constitution
A standing committee shall be set up within the Council of Ministers in order to ensure that operational cooperation on internal security is promoted and strengthened within the Union. Without prejudice to Article III-247, it shall facilitate coordination of the action of Member States' competent authorities. Representatives of the Union bodies and agencies concerned may be involved in the proceedings of this committee. The European Parliament and Member States' national parliaments shall be kept informed of the proceedings.
***
The Treaty establishing a Constitution for Europe took over the draft text with only different numbering of the provision and the referrals and minor change in Article III-261 (OJ 16.12.2004 C 310/114):
Article III-261 Constitution
A standing committee shall be set up within the Council in order to ensure that operational cooperation on internal security is promoted and strengthened within the Union. Without prejudice to Article III-344, it shall facilitate coordination of the action of Member States' competent authorities. Representatives of the Union bodies, offices and agencies concerned may be involved in the proceedings of this committee. The European Parliament and national Parliaments shall be kept informed of the proceedings.
***
The European Convention clarified the role of the committee by spelling out that its remit was internal security, instead of the current reference to ‘areas referred to in Article 29’, namely third pillar police and judicial cooperation in criminal matters.
The Constitutional Treaty and the Treaty of Lisbon brought only technical modifications.
***
Étienne de Poncins commented on the work of the European Convention in his book ‘Vers une Constitution européenne’ (Éditions 10/18, 2003), page 357:
« Commentaire : l’institution de ce comité est une des nouveautés proposées par la Convention dans la domaine de l’espace de liberté, de securité et de justice. Elle fait suite du constat de l’éclatment actuel des fonctions de coordination opérationelles entre les anciens piliers « communautaire » et « Justice et affaires intérieures » (JAI).
He then added a more audacious perspective, which has been more than fully extrapolated by some:
« Ce comité pourrait donner naissance à une structure opérationnelle préfigurant un état-major de police au niveau de l’Union européenne. Sa compétence devrait couvrir l’ensemble du champ de l’espace de l’espace de liberté, de securité et de justice, c’est-à-dire également la composante de contrôle des frontières extérieures. »
***
Ireland
In its April 2008 White Paper ‘The EU Reform Treaty’ (page 67, point 10), the Department of Foreign Affairs of Ireland mentions the new standing committee, but emphasises that the responsibilities of the member states for the maintenance of law and order and internal security are unaffected by the Reform Treaty.
The White Paper is an option for those who want to find out the main points of the Lisbon Treaty in some detail, but still in a readable form. The White Paper and a wealth other information in English and Gaelic is available at the web page ‘The EU Reform Treaty’ of the Department of Foreign Affairs:
http://www.reformtreaty.ie/
***
United Kingdom
The House of Lords European Union Committee report ‘The Treaty of Lisbon: an impact assessment, Volume I: Report’ (HL Paper 62-I, published 13 March 2008) discusses the new provision, Article 71 TFEU, setting up a standing committee within the Council. The UK government and the House Committee seemed to share a preference for the new treaty term ‘national security’ to underline areas that are the sole responsibility of the member states, in contrast to the phrase ‘internal security’, which could cover internal security both within member states and within the European Union. Se pages 158 and 159 (points 6.238 to 6.243).
The report is accessible at:
http://www.publications.parliament.uk/pa/ld200708/ldselect/ldeucom/62/62.pdf
Professor Steve Peers remarks that ‘This committee can be regarded as a successor to the current Article 36 Committee, which prepares the Council’s policing and criminal law work, although the new committee will have a wholly operational role’. – In Statewatch analysis, EU Reorm Treat: analysis 1: Version 3 JHA provisions (22 October 2007). Available together with the other analyses through:
http://www.statewatch.org/euconstitution.htm
***
Finland
The Finnish ratification bill ‘Hallituksen esitys Eduskunnalle Euroopan unionista tehdyn sopimuksen ja Euroopan yhteisön perustamissopimuksen muuttamisesta tehdyn Lissabonin sopimuksen hyväksymisestä ja laiksi sen lainsäädännön alaan kuuluvien määräysten voimaansaattamisesta’ (HE 23/2008 vp) describes the purpose and contents Article 61d TFEU (ToL), renumbered Article 71 TFEU on page 189.
The government remarks that it is the task of the committee to facilitate the coordination of member states’ action. The new committee is not intended to limit the powers of the committee of the permanent representatives of the governments of the member states (Coreper), as pointed out in Article 207 TFEU (ToL), now renumbered Article 240 TFEU (and found on page 202 of the Council’s consolidated version).
The remit of the new committee covers all questions concerning internal security. Thus, it is wider than that of the present Article 36 TEU committee, competent to deal only with questions pertaining to Article 29 TEU. Thus, the new committee can deal with, for instance, border control, asylum or immigration, although these questions are currently dealt with at committee level (SCIFA).
The bill is available at:
http://www.finlex.fi/fi/esitykset/he/2008/20080023.pdf
The Swedish language version of the ratification bill ‘Regeringens proposition till Riksdagen med förslag om godkännande av Lissabonfördraget om ändring av fördraget om Europeiska unionen och fördraget om upprättandet av Europeiska gemenskapen och till lag om sättande i kraft av de bestämmelser i fördraget som hör till området för lagstiftningen’ (RP 23/2008 rp), contains the same remarks on pages 192 and 193.
The ratification bill in Swedish can be accessed at:
http://www.finlex.fi/sv/esitykset/he/2008/20080023.pdf
***
Sweden
The consultation paper of the government of Sweden, ‘Lissabonfördraget; Statsrådsberedningen, Departementsserien (Ds), Ds 2007:48’ published 20 December 2007, mentions that the national parliaments and the European Parliament are to be kept informed about the operational committee (page 300).
Evaluating the results of the treaty negotiations, the Swedish government stresses the strategic national importance for Sweden of the continued development of the European police cooperation. The combat against for example trafficking in human beings, the illegal drugs trade and terrorism require well-working police and customs cooperation. The Treaty of Lisbon facilitates cross-border cooperation (page 326).
In a section on page 327, the Swedish government discusses the committee for operational cooperation. The government stresses the idea to focus on Union level strategic questions, and it mentions the role of the committee in the context of the solidarity clause. Additionally, the committee can serve as a forum for the exchange of experiences of work at the national level.
The consultation paper ’Lissabonfördraget’ is available at:
http://www.regeringen.se/content/1/c6/09/49/81/107aa077.pdf
***
Representatives of the Union bodies, offices and agencies concerned may be involved in the proceedings of the internal security committee, and the European Parliament and national Parliaments shall be kept informed of the proceedings, but the new permanent committee on internal security is explicitly set up within the Council, namely intergovernmentally.
While ‘internal security’ can mean both the protection of national citizens and of EU citizens, the proposed structures mean no wholesale adoption of a ‘Community’ approach to justice and home affairs, only a gradual realisation of the need for enhanced cooperation.
***
The committee on internal security looks like a parallel structure to the political and security committee covering the common foreign and security policy (mentioned in Articles 38 and 43 TEU and in Article 222 TFEU, following the numbering of the Council’s consolidated version).
Ralf Grahn
EU Treaty materials:
If you want to read or download the Council’s consolidated Treaty on European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU) as amended by the Lisbon Treaty, the original Treaty of Lisbon, the current TEU and TEC, the Draft Constitution, the Constitutional Treaty, or other consolidated language versions of the Lisbon Treaty TEU and TFEU, you find the needed information and links in the blawg post ‘Consolidated Treaty of Lisbon and other EU materials’ of 21 April 2008:
http://grahnlaw.blogspot.com/2008/04/consolidated-treaty-of-lisbon-and-other.html
Thursday, 24 April 2008
EU TFEU: Peer review in the area of freedom, security and justice
In EU justice and home affairs (JHA), or the area of freedom, security and justice (FSJ), the Treaty of Lisbon brings about some real change, at least for the 24 member states committed to more effective decision-making in this evolving core policy area.
But is the special intergovernmental JHA or FSJ peer review an indication that the governments believe at least as much in a soft-pedalling approach as in European legislation to achieve a free flow of justice within the European Union?
***
Article 70 of the Treaty on the Functioning of the European Union (TFEU) is presented as it stands after the intergovernmental conference (IGC 2007) in the Treaty of Lisbon (ToL), renumbered and provisionally consolidated by the Council of the European Union (document 6655/08; page 96), with the location of the provision added from the table of equivalences (page 460 to 462):
Part Three ‘Policies and internal actions of the Union’
Title V TFEU ‘Area of freedom, security and justice’
Chapter 1 ‘General provisions’
Article 70 TFEU
Without prejudice to Articles 258, 259 and 260, the Council may, on a proposal from the Commission, adopt measures laying down the arrangements whereby Member States, in collaboration with the Commission, conduct objective and impartial evaluation of the implementation of the Union policies referred to in this Title by Member States' authorities, in particular in order to facilitate full application of the principle of mutual recognition. The European Parliament and national Parliaments shall be informed of the content and results of the evaluation.
***
In Article 2, point 64, of the Treaty of Lisbon the intergovernmental conference presented the wording of the new Article 61c, which became Article 70 TFEU after renumbering in the consolidated version (OJ 17.12.2007 C 306/57).
***
There is no directly corresponding Article in the present treaties. Cf. TFEU Table of equivalences, OJ 17.12.2007 C 306/209.
***
The European Convention proposed the following Article III-161 of the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/58):
Article III-161 Draft Constitution
Without prejudice to Articles III-265 to III-267, the Council of Ministers may, on a proposal from the Commission, adopt European regulations or decisions laying down the arrangements whereby Member States, in collaboration with the Commission, conduct objective and impartial evaluation of the implementation of the Union policies referred to in this Chapter by Member States' authorities, in particular in order to facilitate full application of the principle of mutual recognition. The European Parliament and Member States' national Parliaments shall be informed of the content and results of the evaluation.
***
The Treaty establishing a Constitution for Europe took over the draft text with only different numbering of the provision and the referrals and minimal stylistic change in Article III-260 (OJ 16.12.2004 C 310/113).
***
Since the proposed Article 70 TFEU is essentially (with technical modifications) the same as Article III-260 of the Constitutional Treaty, we can conclude that the new provision is in substance the work of the broadly based European Convention, although more than five years will have been wasted before its labours bear fruit, if the Treaty of Lisbon enters into force according to the wishes of all member state governments and a growing number of ratifying parliaments.
If we take the agreement on the unsatisfactory Treaty of Nice as our starting point for the treaty reform cycle, the corresponding time is longer: about eight years.
***
What does the new Artilcle 70 TFEU mean?
As a name ‘objective and impartial evaluation of the implementation of the Union policies referred to in this Title’ is even more unwieldy than that of its sibling the ‘open method of coordination’ (OMC).
The Wikipedia article ‘Open Method of Coordination’ could serve to give the reader a view of what to expect from this kind of ‘soft law’ approach, based on voluntary intergovernmental cooperation (latest update 6 December 2007):
http://en.wikipedia.org/wiki/Open_Method_of_Coordination
Paul Craig and Gráinne de Búrca: EU Law, Text, Cases, and Materials (Fourth edition, Oxford University Press, 2007) discusses the open method of coordination in the context of Chapter 5 ‘New forms of governance’ (page 144 to 166).
***
Ireland: In its April 2008 White Paper ‘The EU Reform Treaty’ (page 67, point 9), the Department of Foreign Affairs of Ireland speaks of ‘peer review’, a term gratefully adopted by this writer.
***
The basically intergovernmental nature of the peer review – in spite of proposals from and collaboration by the Commission – is shown by the language of the provision, including the sentence on the parliaments: ‘The European Parliament and national Parliaments shall be informed of the content and results of the evaluation.’
***
United Kingdom: Chapter 11: national parliaments – the democratic challenge, of the House of Lords European Union Committee report ‘The Treaty of Lisbon: an impact assessmen, Volume I: Report’ (HL Papere 62-I, published 13 March 2008) is a detailed discussion of the role of national parliaments, with a fleeting mention of ‘Taking part in evaluation of EU policies in the area of freedom, security and justice (see also new Article 70 TFEU)’, on page 234. The Peers' review is accessible at:
http://www.publications.parliament.uk/pa/ld200708/ldselect/ldeucom/62/62.pdf
***
Finland: The Finnish ratification bill ‘Hallituksen esitys Eduskunnalle Euroopan unionista tehdyn sopimuksen ja Euroopan yhteisön perustamissopimuksen muuttamisesta tehdyn Lissabonin sopimuksen hyväksymisestä ja laiksi sen lainsäädännön alaan kuuluvien määräysten voimaansaattamisesta’ (HE 23/2008 vp) follows the Nordic tradition of government proposals explaining each amendment. The description of Article 61c ToL, renumbered Article 70 TFEU, is found on page 189. The bill is available at:
http://www.finlex.fi/fi/esitykset/he/2008/20080023.pdf
Finnish government proposals and legislation are available in Swedish. The same ratification bill ‘Regeringens proposition till Riksdagen med förslag om godkännande av Lissabonfördraget om ändring av fördraget om Europeiska unionen och fördraget om upprättandet av Europeiska gemenskapen och till lag om sättande i kraft av de bestämmelser i fördraget som hör till området för lagstiftningen’ (RP 23/2008 rp), with the relevant description on page 192, can be accessed at:
http://www.finlex.fi/sv/esitykset/he/2008/20080023.pdf
The ratification bill is now at the committee stage, with the Foreign Affairs Committee expecting opinion from other parliamentary committees by 9 May 2008. Ratification for the Finnish mainland is expected before the summer recess.
The autonomous province of the Åland Islands with a special status (Protocol) within the EU may protract its approval or rejection of the Lisbon Treaty while trying to extract concessions from the Finnish government and exploring the consequences of a possible rejection (including a future outside the European Union).
***
Sweden was among the one third of EU member states which either suspended ratification of the Constitutional Treaty or where the ratification failed (France, the Netherlands).
While soon a third of the member states has ratified the Treaty of Lisbon, Sweden started a consultation process with the hefty paper ‘Lissabonfördraget; Statsrådsberedningen, Departementsserien (Ds), Ds 2007:48’ published 20 December 2007.
The consultation process ended 25 March 2008, and the government is mulling over the responses and preparing its ratification bill. As far as I have seen, the Swedish government has yet to announce a clear date for issuing the bill. On a web page dated 31 March 2008 ‘Ett nytt fördrag för EU’ the government reiterates that parliamentary ratification will apply, and obliquely mentions that ‘the idea is’ that the new treaty will enter into force in January 2009:
http://www.regeringen.se/sb/d/9242/a/89146
The consultation paper ’Lissabonfördraget’ is available at:
http://www.regeringen.se/content/1/c6/09/49/81/107aa077.pdf
Back to today’s provision, which is briefly mentioned on page 300 of ‘Lissabonfördraget’.
***
‘Without prejudice to Articles 258, 259 and 260’ refers to provisions of the consolidated TFEU dealing with infringement procedures against member states against failure to fulfil treaty obligations (Council document 6655/08, pages 210-211).
This in itself means that legislative acts are possible in the EU area of freedom, security and justice, and that peer review is not, on the whole, an alternative to EU legislation, but a complement.
Time will tell how the relations between intergovernmental peer review and EU legislation will play out in justice and home affairs, known as the area of freedom, security and justice.
Ralf Grahn
EU Treaty sources:
If you want to read or download the Council’s consolidated Treaty on European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU) as amended by the Lisbon Treaty, the original Treaty of Lisbon, the current TEU and TEC, the Draft Constitution, the Constitutional Treaty, or other consolidated language versions of the Lisbon Treaty TEU and TFEU, you find the needed information and links in the blawg post ‘Consolidated Treaty of Lisbon and other EU materials’ of 21 April 2008:
http://grahnlaw.blogspot.com/2008/04/consolidated-treaty-of-lisbon-and-other.html
But is the special intergovernmental JHA or FSJ peer review an indication that the governments believe at least as much in a soft-pedalling approach as in European legislation to achieve a free flow of justice within the European Union?
***
Article 70 of the Treaty on the Functioning of the European Union (TFEU) is presented as it stands after the intergovernmental conference (IGC 2007) in the Treaty of Lisbon (ToL), renumbered and provisionally consolidated by the Council of the European Union (document 6655/08; page 96), with the location of the provision added from the table of equivalences (page 460 to 462):
Part Three ‘Policies and internal actions of the Union’
Title V TFEU ‘Area of freedom, security and justice’
Chapter 1 ‘General provisions’
Article 70 TFEU
Without prejudice to Articles 258, 259 and 260, the Council may, on a proposal from the Commission, adopt measures laying down the arrangements whereby Member States, in collaboration with the Commission, conduct objective and impartial evaluation of the implementation of the Union policies referred to in this Title by Member States' authorities, in particular in order to facilitate full application of the principle of mutual recognition. The European Parliament and national Parliaments shall be informed of the content and results of the evaluation.
***
In Article 2, point 64, of the Treaty of Lisbon the intergovernmental conference presented the wording of the new Article 61c, which became Article 70 TFEU after renumbering in the consolidated version (OJ 17.12.2007 C 306/57).
***
There is no directly corresponding Article in the present treaties. Cf. TFEU Table of equivalences, OJ 17.12.2007 C 306/209.
***
The European Convention proposed the following Article III-161 of the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/58):
Article III-161 Draft Constitution
Without prejudice to Articles III-265 to III-267, the Council of Ministers may, on a proposal from the Commission, adopt European regulations or decisions laying down the arrangements whereby Member States, in collaboration with the Commission, conduct objective and impartial evaluation of the implementation of the Union policies referred to in this Chapter by Member States' authorities, in particular in order to facilitate full application of the principle of mutual recognition. The European Parliament and Member States' national Parliaments shall be informed of the content and results of the evaluation.
***
The Treaty establishing a Constitution for Europe took over the draft text with only different numbering of the provision and the referrals and minimal stylistic change in Article III-260 (OJ 16.12.2004 C 310/113).
***
Since the proposed Article 70 TFEU is essentially (with technical modifications) the same as Article III-260 of the Constitutional Treaty, we can conclude that the new provision is in substance the work of the broadly based European Convention, although more than five years will have been wasted before its labours bear fruit, if the Treaty of Lisbon enters into force according to the wishes of all member state governments and a growing number of ratifying parliaments.
If we take the agreement on the unsatisfactory Treaty of Nice as our starting point for the treaty reform cycle, the corresponding time is longer: about eight years.
***
What does the new Artilcle 70 TFEU mean?
As a name ‘objective and impartial evaluation of the implementation of the Union policies referred to in this Title’ is even more unwieldy than that of its sibling the ‘open method of coordination’ (OMC).
The Wikipedia article ‘Open Method of Coordination’ could serve to give the reader a view of what to expect from this kind of ‘soft law’ approach, based on voluntary intergovernmental cooperation (latest update 6 December 2007):
http://en.wikipedia.org/wiki/Open_Method_of_Coordination
Paul Craig and Gráinne de Búrca: EU Law, Text, Cases, and Materials (Fourth edition, Oxford University Press, 2007) discusses the open method of coordination in the context of Chapter 5 ‘New forms of governance’ (page 144 to 166).
***
Ireland: In its April 2008 White Paper ‘The EU Reform Treaty’ (page 67, point 9), the Department of Foreign Affairs of Ireland speaks of ‘peer review’, a term gratefully adopted by this writer.
***
The basically intergovernmental nature of the peer review – in spite of proposals from and collaboration by the Commission – is shown by the language of the provision, including the sentence on the parliaments: ‘The European Parliament and national Parliaments shall be informed of the content and results of the evaluation.’
***
United Kingdom: Chapter 11: national parliaments – the democratic challenge, of the House of Lords European Union Committee report ‘The Treaty of Lisbon: an impact assessmen, Volume I: Report’ (HL Papere 62-I, published 13 March 2008) is a detailed discussion of the role of national parliaments, with a fleeting mention of ‘Taking part in evaluation of EU policies in the area of freedom, security and justice (see also new Article 70 TFEU)’, on page 234. The Peers' review is accessible at:
http://www.publications.parliament.uk/pa/ld200708/ldselect/ldeucom/62/62.pdf
***
Finland: The Finnish ratification bill ‘Hallituksen esitys Eduskunnalle Euroopan unionista tehdyn sopimuksen ja Euroopan yhteisön perustamissopimuksen muuttamisesta tehdyn Lissabonin sopimuksen hyväksymisestä ja laiksi sen lainsäädännön alaan kuuluvien määräysten voimaansaattamisesta’ (HE 23/2008 vp) follows the Nordic tradition of government proposals explaining each amendment. The description of Article 61c ToL, renumbered Article 70 TFEU, is found on page 189. The bill is available at:
http://www.finlex.fi/fi/esitykset/he/2008/20080023.pdf
Finnish government proposals and legislation are available in Swedish. The same ratification bill ‘Regeringens proposition till Riksdagen med förslag om godkännande av Lissabonfördraget om ändring av fördraget om Europeiska unionen och fördraget om upprättandet av Europeiska gemenskapen och till lag om sättande i kraft av de bestämmelser i fördraget som hör till området för lagstiftningen’ (RP 23/2008 rp), with the relevant description on page 192, can be accessed at:
http://www.finlex.fi/sv/esitykset/he/2008/20080023.pdf
The ratification bill is now at the committee stage, with the Foreign Affairs Committee expecting opinion from other parliamentary committees by 9 May 2008. Ratification for the Finnish mainland is expected before the summer recess.
The autonomous province of the Åland Islands with a special status (Protocol) within the EU may protract its approval or rejection of the Lisbon Treaty while trying to extract concessions from the Finnish government and exploring the consequences of a possible rejection (including a future outside the European Union).
***
Sweden was among the one third of EU member states which either suspended ratification of the Constitutional Treaty or where the ratification failed (France, the Netherlands).
While soon a third of the member states has ratified the Treaty of Lisbon, Sweden started a consultation process with the hefty paper ‘Lissabonfördraget; Statsrådsberedningen, Departementsserien (Ds), Ds 2007:48’ published 20 December 2007.
The consultation process ended 25 March 2008, and the government is mulling over the responses and preparing its ratification bill. As far as I have seen, the Swedish government has yet to announce a clear date for issuing the bill. On a web page dated 31 March 2008 ‘Ett nytt fördrag för EU’ the government reiterates that parliamentary ratification will apply, and obliquely mentions that ‘the idea is’ that the new treaty will enter into force in January 2009:
http://www.regeringen.se/sb/d/9242/a/89146
The consultation paper ’Lissabonfördraget’ is available at:
http://www.regeringen.se/content/1/c6/09/49/81/107aa077.pdf
Back to today’s provision, which is briefly mentioned on page 300 of ‘Lissabonfördraget’.
***
‘Without prejudice to Articles 258, 259 and 260’ refers to provisions of the consolidated TFEU dealing with infringement procedures against member states against failure to fulfil treaty obligations (Council document 6655/08, pages 210-211).
This in itself means that legislative acts are possible in the EU area of freedom, security and justice, and that peer review is not, on the whole, an alternative to EU legislation, but a complement.
Time will tell how the relations between intergovernmental peer review and EU legislation will play out in justice and home affairs, known as the area of freedom, security and justice.
Ralf Grahn
EU Treaty sources:
If you want to read or download the Council’s consolidated Treaty on European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU) as amended by the Lisbon Treaty, the original Treaty of Lisbon, the current TEU and TEC, the Draft Constitution, the Constitutional Treaty, or other consolidated language versions of the Lisbon Treaty TEU and TFEU, you find the needed information and links in the blawg post ‘Consolidated Treaty of Lisbon and other EU materials’ of 21 April 2008:
http://grahnlaw.blogspot.com/2008/04/consolidated-treaty-of-lisbon-and-other.html
Wednesday, 23 April 2008
EU TFEU: National parliaments in criminal matters and police cooperation
In EU criminal matters and police cooperation the national parliaments are given a lower than usual threshold to force a rethink of a legislative proposal on the grounds of subsidiarity, the principle meaning that decisions should be taken as closely as possible to the citizens of the European Union.
The EU Treaty of Lisbon moves criminal matters and police cooperation from the ntergovernmental third pillar to become more or less normal internal policy areas.
***
Article 68 of the Treaty on the Functioning of the European Union (TFEU) is presented as it stands after the intergovernmental conference (IGC 2007) in the Treaty of Lisbon (ToL), renumbered and provisionally consolidated by the Council of the European Union (document 6655/08; page 96), with the location of the provision added from the table of equivalences (page 460 to 462):
Part Three ‘Policies and internal actions of the Union’
Title V TFEU ‘Area of freedom, security and justice’
Chapter 1 ‘General provisions’
Article 69 TFEU
National Parliaments ensure that the proposals and legislative initiatives submitted under Chapters 4 and 5 comply with the principle of subsidiarity, in accordance with the arrangements laid down by the Protocol on the application of the principles of subsidiarity and proportionality.
***
In Article 2, point 64, of the Treaty of Lisbon the intergovernmental conference was content to present the wording of the new Article 61b, which became Article 69 TFEU after renumbering (OJ 17.12.2007 C 306/57).
***
There is no directly corresponding Article in the present treaties.
***
The European Convention proposed the following Article III-160 of the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/57):
Article III-160 Draft Constitution
1. Member States' national Parliaments shall ensure that the proposals and legislative initiatives submitted under Sections 4 and 5 of this Chapter comply with the principle of subsidiarity, in accordance with the arrangements in the Protocol on the application of the principles of subsidiarity and proportionality.
Member States' national Parliaments may participate in the evaluation mechanisms contained in Article III-161 and in the political monitoring of Europol and the evaluation of Eurojust's activities in accordance with Articles III-177 and III-174.
***
The IGC 2004 split the first paragraph of the draft into an Article III-259 with small stylistic changes (OJ 16.12.2004 C 310/113):
Article III-259 Constitution
National Parliaments shall ensure that the proposals and legislative initiatives submitted under Sections 4 and 5 of this Chapter comply with the principle of subsidiarity, in accordance with the arrangements laid down by the Protocol on the application of the principles of subsidiarity and proportionality.
***
We can see that the meat was served by the European Convention, tranched by the IGC 2004 and seasoned by the IGC 2007 to accommodate a sensitive British palate by removing the abhorrent ‘shall’. In addition a few necessary technical adjustments were made.
***
Actually, a provision like this is more like a food coupon than a real meal, because it only holds out the promise of something substantial through referrals to other provisions.
First, we are sent off to check out the substance of the offering by looking up the subject matter covered. As pointed out in Article 2, point 63, of the Treaty of Lisbon, Chapter 4 is called ‘Judicial cooperation in criminal matters’ and Chapter 5 concerns ‘Police cooperation’.
At this point we can conclude that some sort of special arrangement is reserved for the two areas shifted from the intergovernmental third pillar (TEU) to what is presently known as the first or Community pillar (TEC).
***
Second, the procedures are laid down in the Protocol on the application of the principles of subsidiarity and proportionality.
Protocol (No 2) on the application of the principles of subsidiarity and proportionality has been honed at every turn, but we are content to look at its coming incarnation, as envisioned by the Treaty of Lisbon in the provisional consolidated version published by the Council (document 6655/08; page 266 to 269).
The difference between the subsidiarity control of draft legislative acts in general and those pertaining to criminal matters or police cooperation appears from Article 7(2) of the Protocol (page 268):
“2. Where reasoned opinions on a draft legislative act's non-compliance with the principle of subsidiarity represent at least one third of all the votes allocated to the national Parliaments in accordance with the second subparagraph of paragraph 1, the draft must be reviewed. This threshold shall be a quarter in the case of a draft legislative act submitted on the basis of Article 76 of the Treaty on the Functioning of the European Union on the area of freedom, security and justice.
After such review, the Commission or, where appropriate, the group of Member States, the European Parliament, the Court of Justice, the European Central Bank or the European Investment Bank, if the draft legislative act originates from them, may decide to maintain, amend or withdraw the draft. Reasons must be given for this decision.”
***
Ordinarily, the threshold for rethinking a legislative proposal is one third of the votes given to the national parliaments, but in the case of draft legislative acts submitted on the basis of Article 76 TFEU, namely acts referred to in Chapters 4 (criminal matters) and 5 (police cooperation) and proposed by the Commission or on the initiative of a quarter of the member states, it is only a quarter of the votes allocated.
The special subsidiarity control threshold for proposals concerning Chapter 4 ‘Judicial cooperation in criminal matters’ and Chapter 5 ‘Police cooperation’ serves as a reminder of their third pillar origins.
Ralf Grahn
EU Treaty sources:
If you want to read or download the Council’s consolidated Treaty on European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU) as amended by the Lisbon Treaty, the original Treaty of Lisbon, the current TEU and TEC, the Draft Constitution, the Constitutional Treaty, or other consolidated language versions of the Lisbon Treaty TEU and TFEU, you find the needed information and links in the blawg post ‘Consolidated Treaty of Lisbon and other EU materials’ of 21 April 2008:
http://grahnlaw.blogspot.com/2008/04/consolidated-treaty-of-lisbon-and-other.html
The EU Treaty of Lisbon moves criminal matters and police cooperation from the ntergovernmental third pillar to become more or less normal internal policy areas.
***
Article 68 of the Treaty on the Functioning of the European Union (TFEU) is presented as it stands after the intergovernmental conference (IGC 2007) in the Treaty of Lisbon (ToL), renumbered and provisionally consolidated by the Council of the European Union (document 6655/08; page 96), with the location of the provision added from the table of equivalences (page 460 to 462):
Part Three ‘Policies and internal actions of the Union’
Title V TFEU ‘Area of freedom, security and justice’
Chapter 1 ‘General provisions’
Article 69 TFEU
National Parliaments ensure that the proposals and legislative initiatives submitted under Chapters 4 and 5 comply with the principle of subsidiarity, in accordance with the arrangements laid down by the Protocol on the application of the principles of subsidiarity and proportionality.
***
In Article 2, point 64, of the Treaty of Lisbon the intergovernmental conference was content to present the wording of the new Article 61b, which became Article 69 TFEU after renumbering (OJ 17.12.2007 C 306/57).
***
There is no directly corresponding Article in the present treaties.
***
The European Convention proposed the following Article III-160 of the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/57):
Article III-160 Draft Constitution
1. Member States' national Parliaments shall ensure that the proposals and legislative initiatives submitted under Sections 4 and 5 of this Chapter comply with the principle of subsidiarity, in accordance with the arrangements in the Protocol on the application of the principles of subsidiarity and proportionality.
Member States' national Parliaments may participate in the evaluation mechanisms contained in Article III-161 and in the political monitoring of Europol and the evaluation of Eurojust's activities in accordance with Articles III-177 and III-174.
***
The IGC 2004 split the first paragraph of the draft into an Article III-259 with small stylistic changes (OJ 16.12.2004 C 310/113):
Article III-259 Constitution
National Parliaments shall ensure that the proposals and legislative initiatives submitted under Sections 4 and 5 of this Chapter comply with the principle of subsidiarity, in accordance with the arrangements laid down by the Protocol on the application of the principles of subsidiarity and proportionality.
***
We can see that the meat was served by the European Convention, tranched by the IGC 2004 and seasoned by the IGC 2007 to accommodate a sensitive British palate by removing the abhorrent ‘shall’. In addition a few necessary technical adjustments were made.
***
Actually, a provision like this is more like a food coupon than a real meal, because it only holds out the promise of something substantial through referrals to other provisions.
First, we are sent off to check out the substance of the offering by looking up the subject matter covered. As pointed out in Article 2, point 63, of the Treaty of Lisbon, Chapter 4 is called ‘Judicial cooperation in criminal matters’ and Chapter 5 concerns ‘Police cooperation’.
At this point we can conclude that some sort of special arrangement is reserved for the two areas shifted from the intergovernmental third pillar (TEU) to what is presently known as the first or Community pillar (TEC).
***
Second, the procedures are laid down in the Protocol on the application of the principles of subsidiarity and proportionality.
Protocol (No 2) on the application of the principles of subsidiarity and proportionality has been honed at every turn, but we are content to look at its coming incarnation, as envisioned by the Treaty of Lisbon in the provisional consolidated version published by the Council (document 6655/08; page 266 to 269).
The difference between the subsidiarity control of draft legislative acts in general and those pertaining to criminal matters or police cooperation appears from Article 7(2) of the Protocol (page 268):
“2. Where reasoned opinions on a draft legislative act's non-compliance with the principle of subsidiarity represent at least one third of all the votes allocated to the national Parliaments in accordance with the second subparagraph of paragraph 1, the draft must be reviewed. This threshold shall be a quarter in the case of a draft legislative act submitted on the basis of Article 76 of the Treaty on the Functioning of the European Union on the area of freedom, security and justice.
After such review, the Commission or, where appropriate, the group of Member States, the European Parliament, the Court of Justice, the European Central Bank or the European Investment Bank, if the draft legislative act originates from them, may decide to maintain, amend or withdraw the draft. Reasons must be given for this decision.”
***
Ordinarily, the threshold for rethinking a legislative proposal is one third of the votes given to the national parliaments, but in the case of draft legislative acts submitted on the basis of Article 76 TFEU, namely acts referred to in Chapters 4 (criminal matters) and 5 (police cooperation) and proposed by the Commission or on the initiative of a quarter of the member states, it is only a quarter of the votes allocated.
The special subsidiarity control threshold for proposals concerning Chapter 4 ‘Judicial cooperation in criminal matters’ and Chapter 5 ‘Police cooperation’ serves as a reminder of their third pillar origins.
Ralf Grahn
EU Treaty sources:
If you want to read or download the Council’s consolidated Treaty on European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU) as amended by the Lisbon Treaty, the original Treaty of Lisbon, the current TEU and TEC, the Draft Constitution, the Constitutional Treaty, or other consolidated language versions of the Lisbon Treaty TEU and TFEU, you find the needed information and links in the blawg post ‘Consolidated Treaty of Lisbon and other EU materials’ of 21 April 2008:
http://grahnlaw.blogspot.com/2008/04/consolidated-treaty-of-lisbon-and-other.html
Tuesday, 22 April 2008
EU TFEU: Strategic guidelines for freedom, security and justice
The European Council is arguably the most powerful institution – and becoming a real one – according to the Treaty of Lisbon. Tasking the European Council with issuing strategic guidelines within the area of freedom, security and justice (FSJ) does nothing to diminish its role.
We look at the second new Lisbon Treaty provision on justice and home affairs (JHA).
***
Article 68 of the Treaty on the Functioning of the European Union (TFEU) is presented as it stands after the intergovernmental conference (IGC 2007) in the Treaty of Lisbon (ToL), renumbered and provisionally consolidated by the Council of the European Union (document 6655/08; page 96), with the location of the provision added from the table of equivalences (page 460 to 462):
Part Three ‘Policies and internal actions of the Union’
Title V TFEU ‘Area of freedom, security and justice’
Chapter 1 ‘General provisions’
Article 68 TFEU
The European Council shall define the strategic guidelines for legislative and operational planning within the area of freedom, security and justice.
***
The intergovernmental conference was content to present the wording of the new Article 61a, which became Article 68 TFEU after renumbering (OJ 17.12.2007 C 306/57).
***
There is no directly corresponding Article in the present treaties.
***
In Article III-159 of the draft Treaty establishing a Constitution for Europe, the European Convention proposed exactly the wording now adopted by the Lisbon Treaty (OJ 18.7.2003 C 169/57).
***
Article III-258 of the Treaty establishing a Constitution for Europe passed on the proposal, unchanged (OJ 16.12.2004 C 310/113).
***
In other words, we have an unbroken line from the European Convention to the TFEU, with only a number of years wasted in between.
***
The European Council, arguably the most important institution of the EU in the light of the Treaty of Lisbon, already has general powers of the kind envisioned in Article 68 TFEU. Here is the wording of Article 15(1) TEU on the tasks of the European Council:
Article 15(1) TEU
1. The European Council shall provide the Union with the necessary impetus for its development and shall define the general political directions and priorities thereof. It shall not exercise legislative functions.
***
But a special provision in the context of justice and home affairs and the more precise wording add emphasis to the role of the European Council, as indicated by the Finnish ratification bill (HE 23/2008 vp; page 82).
On the other hand, the change is hardly dramatic. The Irish EU Reform Treaty White Paper states that the provision is in line with current practice (page 67, point 6), and the Swedish consultation paper (Lissabonfördraget, Ds 2007:48; page 299) adds some detail:
”Artikeln kan sägas fördragsfästa en ordning som under senare år har etablerats genom de handlingsprogram för samarbetsområdet som antogs vid Europeiska rådets möten i Tammerfors och Haag (det s.k. Haagprogrammet).”
In other words, the government of Sweden speaks of the Tampere and Hague programmes as examples of the practice to be codified.
The UK House of Commons Library Research Paper 07/86 (page 33) is content to mention the task given to the European Council, without offering a value judgment. I failed to find any mention in the voluminous report by the UK House of Lords European Union Committee ‘The Treaty of Lisbon: an impact assessment, Volume I: Report’ (HL Paper 62-I).
Surely, we can conclude that the new provision is no bone of contention between the governments of the member states.
A more critical view would have to come from “outside the box”, regarding the role of the European Council in the scheme of things.
Ralf Grahn
EU Treaty sources:
If you want to read or download the Council’s consolidated Treaty on European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU) as amended by the Lisbon Treaty, the original Treaty of Lisbon, the current TEU and TEC, the Draft Constitution, the Constitutional Treaty, or other consolidated language versions of the Lisbon Treaty TEU and TFEU, you find the needed information and links in the blawg post ‘Consolidated Treaty of Lisbon and other EU materials’ of 21 April 2008:
http://grahnlaw.blogspot.com/2008/04/consolidated-treaty-of-lisbon-and-other.html
We look at the second new Lisbon Treaty provision on justice and home affairs (JHA).
***
Article 68 of the Treaty on the Functioning of the European Union (TFEU) is presented as it stands after the intergovernmental conference (IGC 2007) in the Treaty of Lisbon (ToL), renumbered and provisionally consolidated by the Council of the European Union (document 6655/08; page 96), with the location of the provision added from the table of equivalences (page 460 to 462):
Part Three ‘Policies and internal actions of the Union’
Title V TFEU ‘Area of freedom, security and justice’
Chapter 1 ‘General provisions’
Article 68 TFEU
The European Council shall define the strategic guidelines for legislative and operational planning within the area of freedom, security and justice.
***
The intergovernmental conference was content to present the wording of the new Article 61a, which became Article 68 TFEU after renumbering (OJ 17.12.2007 C 306/57).
***
There is no directly corresponding Article in the present treaties.
***
In Article III-159 of the draft Treaty establishing a Constitution for Europe, the European Convention proposed exactly the wording now adopted by the Lisbon Treaty (OJ 18.7.2003 C 169/57).
***
Article III-258 of the Treaty establishing a Constitution for Europe passed on the proposal, unchanged (OJ 16.12.2004 C 310/113).
***
In other words, we have an unbroken line from the European Convention to the TFEU, with only a number of years wasted in between.
***
The European Council, arguably the most important institution of the EU in the light of the Treaty of Lisbon, already has general powers of the kind envisioned in Article 68 TFEU. Here is the wording of Article 15(1) TEU on the tasks of the European Council:
Article 15(1) TEU
1. The European Council shall provide the Union with the necessary impetus for its development and shall define the general political directions and priorities thereof. It shall not exercise legislative functions.
***
But a special provision in the context of justice and home affairs and the more precise wording add emphasis to the role of the European Council, as indicated by the Finnish ratification bill (HE 23/2008 vp; page 82).
On the other hand, the change is hardly dramatic. The Irish EU Reform Treaty White Paper states that the provision is in line with current practice (page 67, point 6), and the Swedish consultation paper (Lissabonfördraget, Ds 2007:48; page 299) adds some detail:
”Artikeln kan sägas fördragsfästa en ordning som under senare år har etablerats genom de handlingsprogram för samarbetsområdet som antogs vid Europeiska rådets möten i Tammerfors och Haag (det s.k. Haagprogrammet).”
In other words, the government of Sweden speaks of the Tampere and Hague programmes as examples of the practice to be codified.
The UK House of Commons Library Research Paper 07/86 (page 33) is content to mention the task given to the European Council, without offering a value judgment. I failed to find any mention in the voluminous report by the UK House of Lords European Union Committee ‘The Treaty of Lisbon: an impact assessment, Volume I: Report’ (HL Paper 62-I).
Surely, we can conclude that the new provision is no bone of contention between the governments of the member states.
A more critical view would have to come from “outside the box”, regarding the role of the European Council in the scheme of things.
Ralf Grahn
EU Treaty sources:
If you want to read or download the Council’s consolidated Treaty on European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU) as amended by the Lisbon Treaty, the original Treaty of Lisbon, the current TEU and TEC, the Draft Constitution, the Constitutional Treaty, or other consolidated language versions of the Lisbon Treaty TEU and TFEU, you find the needed information and links in the blawg post ‘Consolidated Treaty of Lisbon and other EU materials’ of 21 April 2008:
http://grahnlaw.blogspot.com/2008/04/consolidated-treaty-of-lisbon-and-other.html
EU TFEU: Area of freedom, security and justice II
We continue to look at the introductory provision on the area of freedom, security and justice, Article 67 TFEU. The second part of this blawg article analyses the various stages of the treaty reform process and suggests some further reading.
***
When we compare the text of Article III-158 (presented in part I) and the following provisions of the draft Treaty establishing a Constitution for Europe with the current treaty provisions (se part I), we notice that the European Convention strived to abolish the present split between two pillars concerning justice and home affairs and to overhaul the disparate provisions into a readable whole.
The goal was to advance from intergovernmental bickering to somewhat more effective action, for which Article III-158 set the framework, although the subject matter is mentioned in the current treaty provisions.
Étienne de Poncins described the work of the Convention in the following words (Vers une Constitution européenne, Éditions 10/18, 2003; page 354):
« Commentaire : l’ensemble des dispositions relatives à l’espace de liberté, de sécurité et de justice ont été revues par la Convention et, plus particulièrement, par le groupe de travail X. La suppression de la structure en piliers a permis de regrouper l’ensemble des dispositions sous un même chapitre alors qu’elles sont aujourd’hui dispersées entre le traité de l’Union (TUE) et celui de la Communauté européenne (TCE). La définition de l’espace de liberté, de sécurité et de justice a été profondément revue et adaptée afin de rendre plus lisible l’action de l’Union dans ce domaine prioritaire. »
***
Article III-257 (presented in part I) of the Treaty establishing a Constitution for Europe took over the corresponding draft text with nothing more than minor editorial changes.
***
The IGC 2007 Mandate (Council document 11218/07) went into the justice and home affairs provisions in some detail (Part III ‘Amendments to the EC Treaty’, page 8, point 19):
---
h) Article 60 (freezing of assets to combat terrorism), as amended in the 2004 IGC, will be transferred towards the end of the Chapter on general provisions in the Title on the Area of freedom, security and justice.
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j) In the Chapter on general provisions applying to the area of freedom, security and justice, insertion of a provision about cooperation and coordination by Member States in the field of national security (see point 2)(a) of Annex 2).
k) In the Chapter on judicial cooperation in civil matters, paragraph 3 of the Article on such cooperation, as agreed in the 2004 IGC, will be modified so as to give a role to national parliaments in the "passerelle" clause on family law (see point 2)(b) of Annex 2).
l) In the Chapters on judicial cooperation in criminal matters and on police cooperation, as amended in the 2004 IGC, in the Articles on mutual recognition of judgments, minimum rules on definition of criminal offences and sanctions, the European Public Prosecutor, and police cooperation, a new mechanism will be inserted enabling Member States to go forward with adopting measures in this field while allowing others not to participate (see point 2)(c) and (d) of Annex 2). Moreover, the scope of the Protocol on the position of the United Kingdom and Ireland (1997) will be extended so as to include, in relation to the UK, and on the same terms, the Chapters on judicial cooperation in criminal matters and on police cooperation. It may also address the application of the Protocol in relation to Schengen building measures and amendments to existing measures. This extension will take account of the UK's position under the previously existing Union acquis in these areas. Ireland will determine in due course its position with regard to that extension.
---
***
The IGC 2007 Mandate Annex 2 concerning amendments to the EC Treaty, with modifications compared with the results as agreed in the 2004 IGC, detailed the changes mentioned above (page 15-16). The asterisk indicated that the innovations to be inserted were the same as those agreed by the 2004 IGC:
2) Replacement, as agreed in the 2004 IGC, of Title IV with the provisions of a new Title on the area of freedom, security and justice*, which includes Chapter 1 (general provisions), Chapter 2 (policies on border checks, asylum and immigration), Chapter 3 (judicial cooperation in civil matters), Chapter 4 (judicial cooperation in criminal matters) and Chapter 5 (police cooperation).
(a) In Chapter 1 (general provisions), insertion in [Article III-262] of the following new second subparagraph:
"It shall be open to Member States to organize between themselves and under their responsibility forms of cooperation and coordination as they deem appropriate between the competent departments of their administrations responsible for safeguarding national security."
(b) In Chapter 3 (judicial cooperation in civil matters), replacement of paragraph 3 of [Article III-269] as follows:
3. Notwithstanding paragraph 2, measures concerning family law with cross-border implications shall be established by the Council, acting in accordance with a special legislative procedure. The Council shall act unanimously after consulting the European Parliament.
The Council, on a proposal from the Commission, may adopt a decision determining those aspects of family law with cross-border implications which may be the subject of acts adopted by the ordinary legislative procedure. The Council shall act unanimously after consulting the European Parliament.
The proposal referred to in the second subparagraph shall be notified to the national Parliaments. If a national Parliament makes known its opposition within six months of the date of such notification, the decision referred to in the second subparagraph shall not be adopted. In the absence of opposition, the Council may adopt the decision."
.
(c) In Chapter 4 (judicial cooperation in criminal matters), replacement of, respectively, paragraphs 3 and 4 of [Article III-270] and of [Article III-271] by the following:
"3. Where a member of the Council considers that a draft directive as referred to in [paragraph 2 of III-270] [paragraphs 1 or 2 of III-271] would affect fundamental aspects of its criminal justice system, it may request that the draft directive be referred to the European Council. In that case, the ordinary legislative procedure shall be suspended. After discussion, and in case of a consensus, the European Council shall, within four months of this suspension, refer the draft back to the Council, which shall terminate the suspension of the ordinary legislative procedure.
Within the same timeframe, in case of disagreement, and if at least 9 Member States wish to establish enhanced cooperation on the basis of the draft directive concerned, they shall notify the European Parliament, the Council and the Commission accordingly. In such a case, the authorisation to proceed with enhanced cooperation referred to in [Articles I-44(2)] and [III-419(1)] shall be deemed to be granted and the provisions on enhanced cooperation shall apply."
(d) In Chapter 4 (judicial cooperation in criminal matters) and in Chapter 5 (police cooperation) insertion of the following new last subparagraphs, respectively, in paragraph 1 of [III-274] and in paragraph 3 of [Article III-275]:
"In case of absence of unanimity in the Council, a group of at least 9 Member States may request that the draft [regulation/measures] be referred to the European Council. In that case, the procedure in the Council shall be suspended. After discussion, and in case of a consensus, the European Council shall, within four months of this suspension, refer the draft back to the Council for adoption.
Within the same timeframe, in case of disagreement, and if at least 9 Member States wish to establish enhanced cooperation on the basis of the draft [regulation/measures] concerned, they shall notify the European Parliament, the Council and the Commission accordingly. In such a case, the authorisation to proceed with enhanced cooperation referred to in [Articles I-44(2)] and [III-419(1)] shall be deemed to be granted and the provisions on enhanced cooperation shall apply."
[in III-275(3) only: "The specific procedure provided in the second and third subparagraphs shall not apply to acts which constitute a development of the Schengen acquis."].
***
The area of freedom, security and justice is clearly strengthened by the Lisbon Treaty as one of the core policy areas of the European Union.
It is mentioned in the preamble to the amended Treaty on European Union:
“RESOLVED to facilitate the free movement of persons, while ensuring the safety and security of their peoples, by establishing an area of freedom, security and justice, in accordance with the provisions of this Treaty and of the Treaty on the Functioning of the European Union”
It is mentioned among the principal aims of the Union, in Article 3(2) TEU:
“2. The Union shall offer its citizens an area of freedom, security and justice without internal
frontiers, in which the free movement of persons is ensured in conjunction with appropriate
measures with respect to external border controls, asylum, immigration and the prevention and
combating of crime.”
It is mentioned as a shared competence in Article 4(2)(j) TFEU.
It is the subject of the new and detailed TFEU Title V, comprising Articles 67 to 89 (plus various relevant provisions elsewhere).
***
What does the Treaty of Lisbon do?
The rough-and-ready description would be that Article 67 TFEU lays the groundwork for applying ‘Community’ principles to police and judicial cooperation along the lines of the Constitutional Treaty (and ultimately the European Convention).
But the devil is in the details:
Special limitations and procedures have been inserted by the IGC 2007. There are Protocols and Declarations to take into account.
Even with these complex limitations, the reform moves apply to most, but not to all member states: 24 out of 27.
Three member states – Denmark, Ireland and the United Kingdom – have opt-outs, underlining the impression of a multi-speed Europe.
***
Here are some suggestions for further reading on the area of freedom, security and justice:
For a readable presentation in English for the non-specialist, you could read the EU Reform Treaty White Paper of the government of Ireland, Chapter 9 ‘Freedom, Security and Justice’ (pages 66 to 72).
Professor Steve Peers has analysed the JHA provisions (Analysis no 1.3) for the Statewatch Observatory on the EU Constitution-Reform-Lisbon Treaty (as it is now called), with a packed three page introduction and a further section with highlighted changes and comments (21 pages in all).
The UK House of Commons Library Research Paper 07/86 ‘The Treaty of Lisbon: amendments to the Treaty establishing the European Community’ describes the treaty proposals in section E. ‘Area of freedom, security and justice’ on pages 31 to 56.
The European Union Committee of the UK House of Lords pored over JHA affairs in Chapter 6 ‘Area of Freedom, Security and Justice’ in ‘The Treaty of Lisbon: an impact assessment, Volume I: Report’ from page 110 to page 177.
Sweden: The consultation paper (Green Paper) of the Swedish government describes the proposed changes in section 22.4 ‘Ett område med frihet, säkerhet och rättvisa’. Lissabonfördraget, Statsrådsberedningen, Departementsserien (Ds) Ds 2007:48; page 295 to 330.
Finland: The ratification bill of the Finnish government (HE 23/2008 vp) contains an overview in section 3.2.4.2.2. ‘Vapauden, turvallisuuden ja oikeuden alue’ on pages 81–90. The same text is available in the Swedish version of the bill (RP 23/2008 rd).
***
Opt-outs
The 28 pages of ‘EU Reform Treaty Analysis no. 4: British and Irish opt-outs from EU Justice and Home Affairs (JHA) law’, by Steve Peers for Statewatch, advances from an introduction to the detail of adopted measures.
The UK Foreign and Commonwealth Office (FCO) web page ‘Myth and facts on justice and home affairs in the Lisbon Treaty’ gives an indication of the discordant British debate (but has not caught up with the latest wild allegations that the EU is reintroducing the death penalty):
http://www.fco.gov.uk/en/newsroom/latest-news/?view=News&id=1534108
Under the Treaty of Lisbon, Denmark would continue to have its four opt-outs, but in its positive ratification report the EU Committee of the Danish Parliament points to the possible referendum on abolishing the opt-out concerning justice and home affairs. Betaenkning over Forslag til lov om aendring af lov om Danmarks tiltraedelse af De Europaeiske Faellesskaber og Den Europaeiske Union (14. marts 2008, til lovforslag nr. L 53, s. 9):
http://www.euo.dk/upload/application/pdf/069fb9b9/20072L537.pdf
According to the Danish daily Politiken, prime minister Anders Fogh Rasmussen has spoken of a referendum later in the year on abolishing one or more Danish opt-outs:
http://politiken.dk/politik/article490778.ece
It is unclear how many opt-outs the Danes will get to vote on, but in any case it is going to happen after the imminent ratification of the Lisbon Treaty.
Ralf Grahn
EU Treaty sources:
If you want to know the Council’s consolidated Treaty on European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU) as amended by the Lisbon Treaty, the original Treaty of Lisbon, the current TEU and TEC, the Draft Constitution, the Constitutional Treaty, or other consolidated language versions of the Lisbon Treaty TEU and TFEU, you find the needed information and links in the blawg post ‘Consolidated Treaty of Lisbon and other EU materials’ of 21 April 2008:
http://grahnlaw.blogspot.com/2008/04/consolidated-treaty-of-lisbon-and-other.html
***
When we compare the text of Article III-158 (presented in part I) and the following provisions of the draft Treaty establishing a Constitution for Europe with the current treaty provisions (se part I), we notice that the European Convention strived to abolish the present split between two pillars concerning justice and home affairs and to overhaul the disparate provisions into a readable whole.
The goal was to advance from intergovernmental bickering to somewhat more effective action, for which Article III-158 set the framework, although the subject matter is mentioned in the current treaty provisions.
Étienne de Poncins described the work of the Convention in the following words (Vers une Constitution européenne, Éditions 10/18, 2003; page 354):
« Commentaire : l’ensemble des dispositions relatives à l’espace de liberté, de sécurité et de justice ont été revues par la Convention et, plus particulièrement, par le groupe de travail X. La suppression de la structure en piliers a permis de regrouper l’ensemble des dispositions sous un même chapitre alors qu’elles sont aujourd’hui dispersées entre le traité de l’Union (TUE) et celui de la Communauté européenne (TCE). La définition de l’espace de liberté, de sécurité et de justice a été profondément revue et adaptée afin de rendre plus lisible l’action de l’Union dans ce domaine prioritaire. »
***
Article III-257 (presented in part I) of the Treaty establishing a Constitution for Europe took over the corresponding draft text with nothing more than minor editorial changes.
***
The IGC 2007 Mandate (Council document 11218/07) went into the justice and home affairs provisions in some detail (Part III ‘Amendments to the EC Treaty’, page 8, point 19):
---
h) Article 60 (freezing of assets to combat terrorism), as amended in the 2004 IGC, will be transferred towards the end of the Chapter on general provisions in the Title on the Area of freedom, security and justice.
---
j) In the Chapter on general provisions applying to the area of freedom, security and justice, insertion of a provision about cooperation and coordination by Member States in the field of national security (see point 2)(a) of Annex 2).
k) In the Chapter on judicial cooperation in civil matters, paragraph 3 of the Article on such cooperation, as agreed in the 2004 IGC, will be modified so as to give a role to national parliaments in the "passerelle" clause on family law (see point 2)(b) of Annex 2).
l) In the Chapters on judicial cooperation in criminal matters and on police cooperation, as amended in the 2004 IGC, in the Articles on mutual recognition of judgments, minimum rules on definition of criminal offences and sanctions, the European Public Prosecutor, and police cooperation, a new mechanism will be inserted enabling Member States to go forward with adopting measures in this field while allowing others not to participate (see point 2)(c) and (d) of Annex 2). Moreover, the scope of the Protocol on the position of the United Kingdom and Ireland (1997) will be extended so as to include, in relation to the UK, and on the same terms, the Chapters on judicial cooperation in criminal matters and on police cooperation. It may also address the application of the Protocol in relation to Schengen building measures and amendments to existing measures. This extension will take account of the UK's position under the previously existing Union acquis in these areas. Ireland will determine in due course its position with regard to that extension.
---
***
The IGC 2007 Mandate Annex 2 concerning amendments to the EC Treaty, with modifications compared with the results as agreed in the 2004 IGC, detailed the changes mentioned above (page 15-16). The asterisk indicated that the innovations to be inserted were the same as those agreed by the 2004 IGC:
2) Replacement, as agreed in the 2004 IGC, of Title IV with the provisions of a new Title on the area of freedom, security and justice*, which includes Chapter 1 (general provisions), Chapter 2 (policies on border checks, asylum and immigration), Chapter 3 (judicial cooperation in civil matters), Chapter 4 (judicial cooperation in criminal matters) and Chapter 5 (police cooperation).
(a) In Chapter 1 (general provisions), insertion in [Article III-262] of the following new second subparagraph:
"It shall be open to Member States to organize between themselves and under their responsibility forms of cooperation and coordination as they deem appropriate between the competent departments of their administrations responsible for safeguarding national security."
(b) In Chapter 3 (judicial cooperation in civil matters), replacement of paragraph 3 of [Article III-269] as follows:
3. Notwithstanding paragraph 2, measures concerning family law with cross-border implications shall be established by the Council, acting in accordance with a special legislative procedure. The Council shall act unanimously after consulting the European Parliament.
The Council, on a proposal from the Commission, may adopt a decision determining those aspects of family law with cross-border implications which may be the subject of acts adopted by the ordinary legislative procedure. The Council shall act unanimously after consulting the European Parliament.
The proposal referred to in the second subparagraph shall be notified to the national Parliaments. If a national Parliament makes known its opposition within six months of the date of such notification, the decision referred to in the second subparagraph shall not be adopted. In the absence of opposition, the Council may adopt the decision."
.
(c) In Chapter 4 (judicial cooperation in criminal matters), replacement of, respectively, paragraphs 3 and 4 of [Article III-270] and of [Article III-271] by the following:
"3. Where a member of the Council considers that a draft directive as referred to in [paragraph 2 of III-270] [paragraphs 1 or 2 of III-271] would affect fundamental aspects of its criminal justice system, it may request that the draft directive be referred to the European Council. In that case, the ordinary legislative procedure shall be suspended. After discussion, and in case of a consensus, the European Council shall, within four months of this suspension, refer the draft back to the Council, which shall terminate the suspension of the ordinary legislative procedure.
Within the same timeframe, in case of disagreement, and if at least 9 Member States wish to establish enhanced cooperation on the basis of the draft directive concerned, they shall notify the European Parliament, the Council and the Commission accordingly. In such a case, the authorisation to proceed with enhanced cooperation referred to in [Articles I-44(2)] and [III-419(1)] shall be deemed to be granted and the provisions on enhanced cooperation shall apply."
(d) In Chapter 4 (judicial cooperation in criminal matters) and in Chapter 5 (police cooperation) insertion of the following new last subparagraphs, respectively, in paragraph 1 of [III-274] and in paragraph 3 of [Article III-275]:
"In case of absence of unanimity in the Council, a group of at least 9 Member States may request that the draft [regulation/measures] be referred to the European Council. In that case, the procedure in the Council shall be suspended. After discussion, and in case of a consensus, the European Council shall, within four months of this suspension, refer the draft back to the Council for adoption.
Within the same timeframe, in case of disagreement, and if at least 9 Member States wish to establish enhanced cooperation on the basis of the draft [regulation/measures] concerned, they shall notify the European Parliament, the Council and the Commission accordingly. In such a case, the authorisation to proceed with enhanced cooperation referred to in [Articles I-44(2)] and [III-419(1)] shall be deemed to be granted and the provisions on enhanced cooperation shall apply."
[in III-275(3) only: "The specific procedure provided in the second and third subparagraphs shall not apply to acts which constitute a development of the Schengen acquis."].
***
The area of freedom, security and justice is clearly strengthened by the Lisbon Treaty as one of the core policy areas of the European Union.
It is mentioned in the preamble to the amended Treaty on European Union:
“RESOLVED to facilitate the free movement of persons, while ensuring the safety and security of their peoples, by establishing an area of freedom, security and justice, in accordance with the provisions of this Treaty and of the Treaty on the Functioning of the European Union”
It is mentioned among the principal aims of the Union, in Article 3(2) TEU:
“2. The Union shall offer its citizens an area of freedom, security and justice without internal
frontiers, in which the free movement of persons is ensured in conjunction with appropriate
measures with respect to external border controls, asylum, immigration and the prevention and
combating of crime.”
It is mentioned as a shared competence in Article 4(2)(j) TFEU.
It is the subject of the new and detailed TFEU Title V, comprising Articles 67 to 89 (plus various relevant provisions elsewhere).
***
What does the Treaty of Lisbon do?
The rough-and-ready description would be that Article 67 TFEU lays the groundwork for applying ‘Community’ principles to police and judicial cooperation along the lines of the Constitutional Treaty (and ultimately the European Convention).
But the devil is in the details:
Special limitations and procedures have been inserted by the IGC 2007. There are Protocols and Declarations to take into account.
Even with these complex limitations, the reform moves apply to most, but not to all member states: 24 out of 27.
Three member states – Denmark, Ireland and the United Kingdom – have opt-outs, underlining the impression of a multi-speed Europe.
***
Here are some suggestions for further reading on the area of freedom, security and justice:
For a readable presentation in English for the non-specialist, you could read the EU Reform Treaty White Paper of the government of Ireland, Chapter 9 ‘Freedom, Security and Justice’ (pages 66 to 72).
Professor Steve Peers has analysed the JHA provisions (Analysis no 1.3) for the Statewatch Observatory on the EU Constitution-Reform-Lisbon Treaty (as it is now called), with a packed three page introduction and a further section with highlighted changes and comments (21 pages in all).
The UK House of Commons Library Research Paper 07/86 ‘The Treaty of Lisbon: amendments to the Treaty establishing the European Community’ describes the treaty proposals in section E. ‘Area of freedom, security and justice’ on pages 31 to 56.
The European Union Committee of the UK House of Lords pored over JHA affairs in Chapter 6 ‘Area of Freedom, Security and Justice’ in ‘The Treaty of Lisbon: an impact assessment, Volume I: Report’ from page 110 to page 177.
Sweden: The consultation paper (Green Paper) of the Swedish government describes the proposed changes in section 22.4 ‘Ett område med frihet, säkerhet och rättvisa’. Lissabonfördraget, Statsrådsberedningen, Departementsserien (Ds) Ds 2007:48; page 295 to 330.
Finland: The ratification bill of the Finnish government (HE 23/2008 vp) contains an overview in section 3.2.4.2.2. ‘Vapauden, turvallisuuden ja oikeuden alue’ on pages 81–90. The same text is available in the Swedish version of the bill (RP 23/2008 rd).
***
Opt-outs
The 28 pages of ‘EU Reform Treaty Analysis no. 4: British and Irish opt-outs from EU Justice and Home Affairs (JHA) law’, by Steve Peers for Statewatch, advances from an introduction to the detail of adopted measures.
The UK Foreign and Commonwealth Office (FCO) web page ‘Myth and facts on justice and home affairs in the Lisbon Treaty’ gives an indication of the discordant British debate (but has not caught up with the latest wild allegations that the EU is reintroducing the death penalty):
http://www.fco.gov.uk/en/newsroom/latest-news/?view=News&id=1534108
Under the Treaty of Lisbon, Denmark would continue to have its four opt-outs, but in its positive ratification report the EU Committee of the Danish Parliament points to the possible referendum on abolishing the opt-out concerning justice and home affairs. Betaenkning over Forslag til lov om aendring af lov om Danmarks tiltraedelse af De Europaeiske Faellesskaber og Den Europaeiske Union (14. marts 2008, til lovforslag nr. L 53, s. 9):
http://www.euo.dk/upload/application/pdf/069fb9b9/20072L537.pdf
According to the Danish daily Politiken, prime minister Anders Fogh Rasmussen has spoken of a referendum later in the year on abolishing one or more Danish opt-outs:
http://politiken.dk/politik/article490778.ece
It is unclear how many opt-outs the Danes will get to vote on, but in any case it is going to happen after the imminent ratification of the Lisbon Treaty.
Ralf Grahn
EU Treaty sources:
If you want to know the Council’s consolidated Treaty on European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU) as amended by the Lisbon Treaty, the original Treaty of Lisbon, the current TEU and TEC, the Draft Constitution, the Constitutional Treaty, or other consolidated language versions of the Lisbon Treaty TEU and TFEU, you find the needed information and links in the blawg post ‘Consolidated Treaty of Lisbon and other EU materials’ of 21 April 2008:
http://grahnlaw.blogspot.com/2008/04/consolidated-treaty-of-lisbon-and-other.html
Monday, 21 April 2008
EU TFEU: Area of freedom, security and justice I
At the present stage of development the Treaty establishing the European Community has, within the first or Community pillar, a Title IV on visas, asylum, immigration and other policies related to free movement of persons, but Title VI of the Treaty on European Union retains provisions on police and judicial cooperation in criminal matters within the intergovernmental third pillar. (The second pillar, intergovernmental in nature, is the common foreign and security policy).
If the Treaty of Lisbon enters into force, it abolishes the pillar structure of the European Union, and it replaces it with one EU based on two treaties. The legal personality of the European Community is taken over by the European Union.
Internal security, or the area of freedom, security and justice, would be rearranged, codified and developed within a more unified framework.
***
This introductory post is divided into two parts. The first part presents the consolidated contents of the Lisbon Treaty provision presenting the aims of the area of freedom, security and justice. It then shows the amendments agreed by the intergovernmental conference as well as the corresponding provisions of the current treaties, the draft Constitution and the Constitutional Treaty.
The second part intends to analyse the various stages of the treaty reform process and to add some comments on this policy area.
Even in this extended form, this introductory post is only a start. During the course of Title V (Articles 67 to 89 according to the new numbering) there will be room for additional aspects, including general ones, when we advance Article by Article.
***
If you want to know the Council’s consolidated Treaty on European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU) as amended by the Lisbon Treaty, the original Treaty of Lisbon, the current TEU and TEC, the Draft Constitution, the Constitutional Treaty, or other consolidated language versions of the Lisbon Treaty TEU and TFEU, you find the needed information and links in the blawg post ‘Consolidated Treaty of Lisbon and other EU materials’ of 21 April 2008:
http://grahnlaw.blogspot.com/2008/04/consolidated-treaty-of-lisbon-and-other.html
***
We start by noticing that Article 2, point 62, of the Treaty of Lisbon (ToL) moves Article 60 of the Treaty establishing the European Community to become the amended Article 61h ToL (OJ 17.12.2007 C 306/56).
After renumbering this becomes Article 75 of the consolidated Treaty on the Functioning of the European Union (TFEU), so we are going to encounter the provision later on.
***
Today, we enter a new area: Title V ‘Area of freedom, security and justice’. It replaces the current Title IV ‘Visas, asylum, immigration and other policies related to the free movement of persons’.
Article 67 TFEU is presented as it stands after the intergovernmental conference (IGC 2007) in the Treaty of Lisbon (ToL) and provisionally consolidated by the Council of the European Union (document 6655/08; page 95-96), with the location of the provision added from the table of equivalences (page 460 to 462):
Part Three ‘Policies and internal actions of the Union’
Title V TFEU ‘Area of freedom, security and justice’
Chapter 1 ‘General provisions’
Article 67 TFEU
(ex Article 61 TEC and ex Article 29 TEU)
1. The Union shall constitute an area of freedom, security and justice with respect for fundamental rights and the different legal systems and traditions of the Member States.
2. It shall ensure the absence of internal border controls for persons and shall frame a common policy on asylum, immigration and external border control, based on solidarity between Member States, which is fair towards third-country nationals. For the purpose of this Title, stateless persons shall be treated as third-country nationals.
3. The Union shall endeavour to ensure a high level of security through measures to prevent and combat crime, racism and xenophobia, and through measures for coordination and cooperation between police and judicial authorities and other competent authorities, as well as through the mutual recognition of judgments in criminal matters and, if necessary, through the approximation of criminal laws.
4. The Union shall facilitate access to justice, in particular through the principle of mutual recognition of judicial and extrajudicial decisions in civil matters.
***
In the Treaty of Lisbon Article 2, point 63 and point 64 (of which the beginning is reproduced here), the intergovernmental conference (IGC 2007) agreed on the following amendments, with the original ToL numbering (OJ 17.12.2007 C 306/56):
AREA OF FREEDOM, SECURITY AND JUSTICE;
63) A Title IV, with the heading ‘AREA OF FREEDOM, SECURITY AND JUSTICE’, shall replace the Title IV on visas, asylum, immigration, and other policies related to free movement of persons. Title IV shall contain the following Chapters:
Chapter 1: General provisions
Chapter 2: Policies on border checks, asylum and immigration
Chapter 3: Judicial cooperation in civil matters
Chapter 4: Judicial cooperation in criminal matters
Chapter 5: Police cooperation.
GENERAL PROVISIONS
64) Article 61 shall be replaced by the following Chapter 1 and Articles 61 to 61 I. Article 61 shall also replace the current Article 29 of the Treaty on European Union, Article 61 D shall replace Article 36 thereof, Article 61 E shall replace Article 64(1) of the Treaty establishing the European Community and the current Article 33 of the Treaty on European Union, Article 61G shall replace Article 66 of the Treaty establishing the European Community and Article 61 H shall take over Article 60 thereof, as set out in point 62 above: …
***
For the corresponding provisions in force, we go to the latest consolidated version of the treaties, OJ 29.12.2006 C 321 E/1.
The text of Article 61 TEC is here (page 65-66):
TITLE IV
VISAS, ASYLUM, IMMIGRATION AND OTHER POLICIES RELATED TO FREE MOVEMENT OF PERSONS
Article 61 TEC
In order to establish progressively an area of freedom, security and justice, the Council shall adopt:
(a) within a period of five years after the entry into force of the Treaty of Amsterdam, measures aimed at ensuring the free movement of persons in accordance with Article 14, in conjunction with directly related flanking measures with respect to external border controls, asylum and immigration, in accordance with the provisions of Article 62(2) and (3) and Article 63(1)(a) and (2)(a), and measures to prevent and combat crime in accordance with the provisions of Article 31(e) of the Treaty on European Union;
(b) other measures in the fields of asylum, immigration and safeguarding the rights of nationals of third countries, in accordance with the provisions of Article 63;
(c) measures in the field of judicial cooperation in civil matters as provided for in Article 65;
(d) appropriate measures to encourage and strengthen administrative cooperation, as provided for in Article 66;
(e) measures in the field of police and judicial cooperation in criminal matters aimed at a high level of security by preventing and combating crime within the Union in accordance with the provisions of the Treaty on European Union.
***
The current Article 29 TEU reads like this (page 23-24):
TITLE VI
PROVISIONS ON POLICE AND JUDICIAL COOPERATION IN CRIMINAL MATTERS
Article 29 TEU
Without prejudice to the powers of the European Community, the Union's objective shall be to provide citizens with a high level of safety within an area of freedom, security and justice by developing common action among the Member States in the fields of police and judicial cooperation in criminal matters and by preventing and combating racism and xenophobia.
That objective shall be achieved by preventing and combating crime, organised or otherwise, in particular terrorism, trafficking in persons and offences against children, illicit drug trafficking and illicit arms trafficking, corruption and fraud, through:
— closer cooperation between police forces, customs authorities and other competent authorities in the Member States, both directly and through the European Police Office (Europol), in accordance with the provisions of Articles 30 and 32,
— closer cooperation between judicial and other competent authorities of the Member States including cooperation through the European Judicial Cooperation Unit (‘Eurojust’), in accordance with the provisions of Articles 31 and 32,
— approximation, where necessary, of rules on criminal matters in the Member States, in accordance with the provisions of Article 31(e).
***
We take a look at the intermediary stages of the treaty reform process, starting with the European Convention.
Introducing Chapter IV ‘Area of freedom, security and justice’, Section 1 ‘General provisions, Article III-158 of the draft Treaty establishing a Constitution for Europe proposed the following (OJ 18.7.2003 C 169/57):
Chapter IV
AREA OF FREEDOM, SECURITY AND JUSTICE
SECTION 1
General provisions
Article III-158 Draft Constitution
1. The Union shall constitute an area of freedom, security and justice with respect for fundamental rights, taking into account the different legal traditions and systems of the Member States.
2. It shall ensure the absence of internal border controls for persons and shall frame a common policy on asylum, immigration and external border control, based on solidarity between Member States, which is fair towards third-country nationals. For the purpose of this chapter, stateless persons shall be treated as third-country nationals.
3. The Union shall endeavour to ensure a high level of security by measures to prevent and combat crime, racism and xenophobia, and measures for coordination and cooperation between police and judicial authorities and other competent authorities, as well as by the mutual recognition of judgments in criminal matters and, if necessary, the approximation of criminal laws.
4. The Union shall facilitate access to justice, in particular by the principle of mutual recognition of judicial and extrajudicial decisions in civil matters.
***
At the end of the IGC 2004 the governments of the member states signed the Treaty establishing a Constitution for Europe, with the following Article III-257 (OJ
CHAPTER IV
AREA OF FREEDOM, SECURITY AND JUSTICE
SECTION 1
GENERAL PROVISIONS
Article III-257 Constitution
1. The Union shall constitute an area of freedom, security and justice with respect for fundamental rights and the different legal systems and traditions of the Member States.
2. It shall ensure the absence of internal border controls for persons and shall frame a common policy on asylum, immigration and external border control, based on solidarity between Member States, which is fair towards third‑country nationals. For the purpose of this Chapter, stateless persons shall be treated as third‑country nationals.
3. The Union shall endeavour to ensure a high level of security through measures to prevent and combat crime, racism and xenophobia, and through measures for coordination and cooperation between police and judicial authorities and other competent authorities, as well as through the mutual recognition of judgments in criminal matters and, if necessary, through the approximation of criminal laws.
4. The Union shall facilitate access to justice, in particular through the principle of mutual recognition of judicial and extrajudicial decisions in civil matters.
***
In part two of this post we take a closer look at the treaty reform stages and add some comments.
Ralf Grahn
If the Treaty of Lisbon enters into force, it abolishes the pillar structure of the European Union, and it replaces it with one EU based on two treaties. The legal personality of the European Community is taken over by the European Union.
Internal security, or the area of freedom, security and justice, would be rearranged, codified and developed within a more unified framework.
***
This introductory post is divided into two parts. The first part presents the consolidated contents of the Lisbon Treaty provision presenting the aims of the area of freedom, security and justice. It then shows the amendments agreed by the intergovernmental conference as well as the corresponding provisions of the current treaties, the draft Constitution and the Constitutional Treaty.
The second part intends to analyse the various stages of the treaty reform process and to add some comments on this policy area.
Even in this extended form, this introductory post is only a start. During the course of Title V (Articles 67 to 89 according to the new numbering) there will be room for additional aspects, including general ones, when we advance Article by Article.
***
If you want to know the Council’s consolidated Treaty on European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU) as amended by the Lisbon Treaty, the original Treaty of Lisbon, the current TEU and TEC, the Draft Constitution, the Constitutional Treaty, or other consolidated language versions of the Lisbon Treaty TEU and TFEU, you find the needed information and links in the blawg post ‘Consolidated Treaty of Lisbon and other EU materials’ of 21 April 2008:
http://grahnlaw.blogspot.com/2008/04/consolidated-treaty-of-lisbon-and-other.html
***
We start by noticing that Article 2, point 62, of the Treaty of Lisbon (ToL) moves Article 60 of the Treaty establishing the European Community to become the amended Article 61h ToL (OJ 17.12.2007 C 306/56).
After renumbering this becomes Article 75 of the consolidated Treaty on the Functioning of the European Union (TFEU), so we are going to encounter the provision later on.
***
Today, we enter a new area: Title V ‘Area of freedom, security and justice’. It replaces the current Title IV ‘Visas, asylum, immigration and other policies related to the free movement of persons’.
Article 67 TFEU is presented as it stands after the intergovernmental conference (IGC 2007) in the Treaty of Lisbon (ToL) and provisionally consolidated by the Council of the European Union (document 6655/08; page 95-96), with the location of the provision added from the table of equivalences (page 460 to 462):
Part Three ‘Policies and internal actions of the Union’
Title V TFEU ‘Area of freedom, security and justice’
Chapter 1 ‘General provisions’
Article 67 TFEU
(ex Article 61 TEC and ex Article 29 TEU)
1. The Union shall constitute an area of freedom, security and justice with respect for fundamental rights and the different legal systems and traditions of the Member States.
2. It shall ensure the absence of internal border controls for persons and shall frame a common policy on asylum, immigration and external border control, based on solidarity between Member States, which is fair towards third-country nationals. For the purpose of this Title, stateless persons shall be treated as third-country nationals.
3. The Union shall endeavour to ensure a high level of security through measures to prevent and combat crime, racism and xenophobia, and through measures for coordination and cooperation between police and judicial authorities and other competent authorities, as well as through the mutual recognition of judgments in criminal matters and, if necessary, through the approximation of criminal laws.
4. The Union shall facilitate access to justice, in particular through the principle of mutual recognition of judicial and extrajudicial decisions in civil matters.
***
In the Treaty of Lisbon Article 2, point 63 and point 64 (of which the beginning is reproduced here), the intergovernmental conference (IGC 2007) agreed on the following amendments, with the original ToL numbering (OJ 17.12.2007 C 306/56):
AREA OF FREEDOM, SECURITY AND JUSTICE;
63) A Title IV, with the heading ‘AREA OF FREEDOM, SECURITY AND JUSTICE’, shall replace the Title IV on visas, asylum, immigration, and other policies related to free movement of persons. Title IV shall contain the following Chapters:
Chapter 1: General provisions
Chapter 2: Policies on border checks, asylum and immigration
Chapter 3: Judicial cooperation in civil matters
Chapter 4: Judicial cooperation in criminal matters
Chapter 5: Police cooperation.
GENERAL PROVISIONS
64) Article 61 shall be replaced by the following Chapter 1 and Articles 61 to 61 I. Article 61 shall also replace the current Article 29 of the Treaty on European Union, Article 61 D shall replace Article 36 thereof, Article 61 E shall replace Article 64(1) of the Treaty establishing the European Community and the current Article 33 of the Treaty on European Union, Article 61G shall replace Article 66 of the Treaty establishing the European Community and Article 61 H shall take over Article 60 thereof, as set out in point 62 above: …
***
For the corresponding provisions in force, we go to the latest consolidated version of the treaties, OJ 29.12.2006 C 321 E/1.
The text of Article 61 TEC is here (page 65-66):
TITLE IV
VISAS, ASYLUM, IMMIGRATION AND OTHER POLICIES RELATED TO FREE MOVEMENT OF PERSONS
Article 61 TEC
In order to establish progressively an area of freedom, security and justice, the Council shall adopt:
(a) within a period of five years after the entry into force of the Treaty of Amsterdam, measures aimed at ensuring the free movement of persons in accordance with Article 14, in conjunction with directly related flanking measures with respect to external border controls, asylum and immigration, in accordance with the provisions of Article 62(2) and (3) and Article 63(1)(a) and (2)(a), and measures to prevent and combat crime in accordance with the provisions of Article 31(e) of the Treaty on European Union;
(b) other measures in the fields of asylum, immigration and safeguarding the rights of nationals of third countries, in accordance with the provisions of Article 63;
(c) measures in the field of judicial cooperation in civil matters as provided for in Article 65;
(d) appropriate measures to encourage and strengthen administrative cooperation, as provided for in Article 66;
(e) measures in the field of police and judicial cooperation in criminal matters aimed at a high level of security by preventing and combating crime within the Union in accordance with the provisions of the Treaty on European Union.
***
The current Article 29 TEU reads like this (page 23-24):
TITLE VI
PROVISIONS ON POLICE AND JUDICIAL COOPERATION IN CRIMINAL MATTERS
Article 29 TEU
Without prejudice to the powers of the European Community, the Union's objective shall be to provide citizens with a high level of safety within an area of freedom, security and justice by developing common action among the Member States in the fields of police and judicial cooperation in criminal matters and by preventing and combating racism and xenophobia.
That objective shall be achieved by preventing and combating crime, organised or otherwise, in particular terrorism, trafficking in persons and offences against children, illicit drug trafficking and illicit arms trafficking, corruption and fraud, through:
— closer cooperation between police forces, customs authorities and other competent authorities in the Member States, both directly and through the European Police Office (Europol), in accordance with the provisions of Articles 30 and 32,
— closer cooperation between judicial and other competent authorities of the Member States including cooperation through the European Judicial Cooperation Unit (‘Eurojust’), in accordance with the provisions of Articles 31 and 32,
— approximation, where necessary, of rules on criminal matters in the Member States, in accordance with the provisions of Article 31(e).
***
We take a look at the intermediary stages of the treaty reform process, starting with the European Convention.
Introducing Chapter IV ‘Area of freedom, security and justice’, Section 1 ‘General provisions, Article III-158 of the draft Treaty establishing a Constitution for Europe proposed the following (OJ 18.7.2003 C 169/57):
Chapter IV
AREA OF FREEDOM, SECURITY AND JUSTICE
SECTION 1
General provisions
Article III-158 Draft Constitution
1. The Union shall constitute an area of freedom, security and justice with respect for fundamental rights, taking into account the different legal traditions and systems of the Member States.
2. It shall ensure the absence of internal border controls for persons and shall frame a common policy on asylum, immigration and external border control, based on solidarity between Member States, which is fair towards third-country nationals. For the purpose of this chapter, stateless persons shall be treated as third-country nationals.
3. The Union shall endeavour to ensure a high level of security by measures to prevent and combat crime, racism and xenophobia, and measures for coordination and cooperation between police and judicial authorities and other competent authorities, as well as by the mutual recognition of judgments in criminal matters and, if necessary, the approximation of criminal laws.
4. The Union shall facilitate access to justice, in particular by the principle of mutual recognition of judicial and extrajudicial decisions in civil matters.
***
At the end of the IGC 2004 the governments of the member states signed the Treaty establishing a Constitution for Europe, with the following Article III-257 (OJ
CHAPTER IV
AREA OF FREEDOM, SECURITY AND JUSTICE
SECTION 1
GENERAL PROVISIONS
Article III-257 Constitution
1. The Union shall constitute an area of freedom, security and justice with respect for fundamental rights and the different legal systems and traditions of the Member States.
2. It shall ensure the absence of internal border controls for persons and shall frame a common policy on asylum, immigration and external border control, based on solidarity between Member States, which is fair towards third‑country nationals. For the purpose of this Chapter, stateless persons shall be treated as third‑country nationals.
3. The Union shall endeavour to ensure a high level of security through measures to prevent and combat crime, racism and xenophobia, and through measures for coordination and cooperation between police and judicial authorities and other competent authorities, as well as through the mutual recognition of judgments in criminal matters and, if necessary, through the approximation of criminal laws.
4. The Union shall facilitate access to justice, in particular through the principle of mutual recognition of judicial and extrajudicial decisions in civil matters.
***
In part two of this post we take a closer look at the treaty reform stages and add some comments.
Ralf Grahn
Consolidated Treaty of Lisbon and other EU materials
People continue to arrive at this blog while looking for a consolidated version of the Treaty of Lisbon, and often they have been referred by a search engine to an older post on consolidated versions or the lack of such.
It seems to take a while for the word to spread that the Council has, at last, published consolidated versions of the amended treaties.
At the same time, below are the main resources concerning the treaty reform process post Nice.
***
New TEU and TFEU
The Council’s provisional consolidated version of the Treaty on European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU) has been available since 16 April 2008. Go to the following Lisbon Treaty web page and choose your preferred treaty language (out of 23):
http://consilium.europa.eu/cms3_fo/showPage.asp?id=1296&lang=en
***
Original Treaty of Lisbon
The original unconsolidated Treaty of Lisbon (ToL) with the amendments to the Treaty on European Union and the Treaty establishing the European Community, signed at Lisbon, 13 December 2007, was published in the Official Journal of the European Union, OJ 17.12.2007 C 306/1.
The amending Lisbon Treaty is available in 23 treaty languages through:
http://eur-lex.europa.eu/JOIndex.do?year=2007&serie=C&textfield2=306&Submit=Search&_submit=Search&ihmlang=en
***
Current TEU and TEC
Until the Lisbon Treaty amendments enter into force, the European Union and the European Community continue to work according to the Nice and accession treaties. In addition to being the legislation in force, the current treaties form the basis for comparison with the proposed changes.
The latest consolidated versions of the Treaty on European Union (TEU) and of the Treaty establishing the European Community (TEC) have been published in the Official Journal of the European Union, OJ 29.12.2006 C 321 E/1.
For the consolidated treaties in force in your preferred language version among the then 21 treaty languages (Bulgarian and Romanian missing), go to:
http://eur-lex.europa.eu/JOIndex.do?year=2006&serie=C&textfield2=321E&Submit=Search&_submit=Search&ihmlang=en
***
Draft Constitution
After the less than satisfactory Treaty of Nice, the treaty reform process was re-launched by the Laeken Declaration and the work accomplished by the European Convention, which produced the draft Treaty establishing a Constitution for Europe, published OJ 18.7.2003 C 169/1.
Here you can find the draft Constitution, which formed the basis for the following intergovernmental conference(s) (IGC 2003 and 2004) and most of the proposals debated today, in the treaty languages at that time (excluding Gaelic and the official languages of the entrants 2004 and later):
http://eur-lex.europa.eu/JOIndex.do?year=2003&serie=C&textfield2=169&Submit=Search&_submit=Search&ihmlang=en
***
Constitution
During the IGC 2004 the governments of the member states agreed on and signed the Treaty establishing the Treaty establishing a Constitution for Europe, published OJ 16.12.2004 C 310/1. By then, ten countries had become EU members in 2004 and Gaelic had become an official EU language, so only Bulgarian and Romanian language versions are unavailable there.
The Constitutional Treaty, which was ratified by two thirds of the member states, is available at:
http://eur-lex.europa.eu/JOHtml.do?year=2004&serie=C&textfield2=310&Submit=S%C3%B6k&_submit=S%C3%B6k&ihmlang=en
***
Other consolidations
Before the Council published its consolidations, there were – as far as I was able to find out – consolidated versions for a minority of the member states, but a majority of EU citizens through other channels. The latest compilation was the blawg post ‘Consolidated EU Lisbon Treaty Update April 2008’, published 9 April 2008:
http://grahnlaw.blogspot.com/2008/04/consolidated-eu-lisbon-treaty-update.html
A blog post ‘Lisbon Treaty updates: Promising and promised’ of 15 April 2008 added information on two new publications by the IIEA, a new highlighted version making it easy to see the changes and an Irish Gaelic consolidation:
http://grahnlaw.blogspot.com/2008/04/lisbon-treaty-updates-promising-and.html
***
Dear Reader,
Consolidations in book form, commentaries, articles and official papers on the Treaty of Lisbon, as well as on EU law and politics generally, are in constant demand. Please, share your information with me and the readers of this blog.
Ralf Grahn
It seems to take a while for the word to spread that the Council has, at last, published consolidated versions of the amended treaties.
At the same time, below are the main resources concerning the treaty reform process post Nice.
***
New TEU and TFEU
The Council’s provisional consolidated version of the Treaty on European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU) has been available since 16 April 2008. Go to the following Lisbon Treaty web page and choose your preferred treaty language (out of 23):
http://consilium.europa.eu/cms3_fo/showPage.asp?id=1296&lang=en
***
Original Treaty of Lisbon
The original unconsolidated Treaty of Lisbon (ToL) with the amendments to the Treaty on European Union and the Treaty establishing the European Community, signed at Lisbon, 13 December 2007, was published in the Official Journal of the European Union, OJ 17.12.2007 C 306/1.
The amending Lisbon Treaty is available in 23 treaty languages through:
http://eur-lex.europa.eu/JOIndex.do?year=2007&serie=C&textfield2=306&Submit=Search&_submit=Search&ihmlang=en
***
Current TEU and TEC
Until the Lisbon Treaty amendments enter into force, the European Union and the European Community continue to work according to the Nice and accession treaties. In addition to being the legislation in force, the current treaties form the basis for comparison with the proposed changes.
The latest consolidated versions of the Treaty on European Union (TEU) and of the Treaty establishing the European Community (TEC) have been published in the Official Journal of the European Union, OJ 29.12.2006 C 321 E/1.
For the consolidated treaties in force in your preferred language version among the then 21 treaty languages (Bulgarian and Romanian missing), go to:
http://eur-lex.europa.eu/JOIndex.do?year=2006&serie=C&textfield2=321E&Submit=Search&_submit=Search&ihmlang=en
***
Draft Constitution
After the less than satisfactory Treaty of Nice, the treaty reform process was re-launched by the Laeken Declaration and the work accomplished by the European Convention, which produced the draft Treaty establishing a Constitution for Europe, published OJ 18.7.2003 C 169/1.
Here you can find the draft Constitution, which formed the basis for the following intergovernmental conference(s) (IGC 2003 and 2004) and most of the proposals debated today, in the treaty languages at that time (excluding Gaelic and the official languages of the entrants 2004 and later):
http://eur-lex.europa.eu/JOIndex.do?year=2003&serie=C&textfield2=169&Submit=Search&_submit=Search&ihmlang=en
***
Constitution
During the IGC 2004 the governments of the member states agreed on and signed the Treaty establishing the Treaty establishing a Constitution for Europe, published OJ 16.12.2004 C 310/1. By then, ten countries had become EU members in 2004 and Gaelic had become an official EU language, so only Bulgarian and Romanian language versions are unavailable there.
The Constitutional Treaty, which was ratified by two thirds of the member states, is available at:
http://eur-lex.europa.eu/JOHtml.do?year=2004&serie=C&textfield2=310&Submit=S%C3%B6k&_submit=S%C3%B6k&ihmlang=en
***
Other consolidations
Before the Council published its consolidations, there were – as far as I was able to find out – consolidated versions for a minority of the member states, but a majority of EU citizens through other channels. The latest compilation was the blawg post ‘Consolidated EU Lisbon Treaty Update April 2008’, published 9 April 2008:
http://grahnlaw.blogspot.com/2008/04/consolidated-eu-lisbon-treaty-update.html
A blog post ‘Lisbon Treaty updates: Promising and promised’ of 15 April 2008 added information on two new publications by the IIEA, a new highlighted version making it easy to see the changes and an Irish Gaelic consolidation:
http://grahnlaw.blogspot.com/2008/04/lisbon-treaty-updates-promising-and.html
***
Dear Reader,
Consolidations in book form, commentaries, articles and official papers on the Treaty of Lisbon, as well as on EU law and politics generally, are in constant demand. Please, share your information with me and the readers of this blog.
Ralf Grahn
Sunday, 20 April 2008
EU TFEU: Safeguard measures restricting free movement of capital
“Living in interesting times” as regards international financial markets, it may be good to know that the current Treaty establishing the European Community (TEC) and the Treaty on the Functioning of the European Union (TFEU) foresee temporary safeguard measures to protect economic and monetary union (EMU) in exceptional circumstances.
***
The Council’s provisional consolidated version of the Treaty on European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU) has been available since 16 April 2008. Go to the following Lisbon Treaty web page and choose your preferred treaty language (out of 23):
http://consilium.europa.eu/cms3_fo/showPage.asp?id=1296&lang=en
***
Article 66 TFEU is presented as it stands after the intergovernmental conference (IGC 2007) in the Treaty of Lisbon (ToL) and provisionally consolidated by the Council of the European Union (document 6655/08; page 95), with the location of the provision added from the table of equivalences (page 460 to 462):
Part Three ‘Policies and internal actions of the Union’
Title IV TFEU (ex Title III) ‘Free movement of persons, services and capital’
Chapter 4 ‘Capital and payments’
Article 66 TFEU
(ex Article 59 TEC)
Where, in exceptional circumstances, movements of capital to or from third countries cause, or threaten to cause, serious difficulties for the operation of economic and monetary union, the Council, on a proposal from the Commission and after consulting the European Central Bank, may take safeguard measures with regard to third countries for a period not exceeding six months if such measures are strictly necessary.
***
The original unconsolidated Treaty of Lisbon (ToL) with the amendments to the Treaty on European Union and the Treaty establishing the European Community, signed at Lisbon, 13 December 2007, is available in 23 treaty languages through:
http://eur-lex.europa.eu/JOIndex.do?year=2007&serie=C&textfield2=306&Submit=Search&_submit=Search&ihmlang=en
***
Article 2 ToL (containing the TEC amendments) had no specific amendments to Article 59 TEC. Cf. point 61 and 62 (OJ 17.12.2007 C 306/56).
‘Acting by a qualified majority’ was deleted according to horizontal amendment 2(d) and the abbreviation ‘ECB’ replaced by ‘European Central Bank’ in line with horizontal amendment 2(j).
***
For the consolidated treaties in force in your preferred language version among the then 21 treaty languages (Bulgarian and Romanian missing), go to:
http://eur-lex.europa.eu/JOIndex.do?year=2006&serie=C&textfield2=321E&Submit=Search&_submit=Search&ihmlang=en
***
The current Article 59 of the Treaty establishing the European Community (TEC) is found in the latest consolidated version of the treaties (OJ 29.12.2006 C 321 E/65):
Article 59 TEC
Where, in exceptional circumstances, movements of capital to or from third countries cause, or threaten to cause, serious difficulties for the operation of economic and monetary union, the Council, acting by a qualified majority on a proposal from the Commission and after consulting the ECB, may take safeguard measures with regard to third countries for a period not exceeding six months if such measures are strictly necessary.
***
The European Convention introduced small stylistic changes in Article III-48 of the draft Treaty establishing a Constitution for Europe, but without material impact (OJ 18.7.2003 C 169/35):
Article III-48 Draft Constitution
Where, in exceptional circumstances, movements of capital to or from third countries cause, or threaten to cause, serious difficulties for the operation of economic and monetary union, the Council of Ministers, on a proposal from the Commission, may adopt European regulations or decisions introducing safeguard measures with regard to third countries for a period not exceeding six months if such measures are strictly necessary. It shall act after consulting the European Central Bank.
***
The differences between the draft Constitution and Article III-159 of the Treaty establishing a Constitution for Europe are minimal. ‘Operation’ became ‘functioning’ and the ‘Council of Ministers’ had become the ‘Council’. See OJ 16.12.2004 C 310/67.
***
We live “in interesting times” as regards the stability of the financial markets, so Article 66 TFEU may be of more than purely theoretical interest.
The provision offers the EU possibilities to safeguard the operation of economic and monetary union (EMU) with regard to third countries.
These measures can not be taken lightly. ‘Exceptional circumstances’, ‘serious difficulties’ and ‘strictly necessary’ all circumscribe recourse to such measures. In addition, six months is the maximum duration of a measure (but the wording does not exclude a new decision).
Ralf Grahn
***
The Council’s provisional consolidated version of the Treaty on European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU) has been available since 16 April 2008. Go to the following Lisbon Treaty web page and choose your preferred treaty language (out of 23):
http://consilium.europa.eu/cms3_fo/showPage.asp?id=1296&lang=en
***
Article 66 TFEU is presented as it stands after the intergovernmental conference (IGC 2007) in the Treaty of Lisbon (ToL) and provisionally consolidated by the Council of the European Union (document 6655/08; page 95), with the location of the provision added from the table of equivalences (page 460 to 462):
Part Three ‘Policies and internal actions of the Union’
Title IV TFEU (ex Title III) ‘Free movement of persons, services and capital’
Chapter 4 ‘Capital and payments’
Article 66 TFEU
(ex Article 59 TEC)
Where, in exceptional circumstances, movements of capital to or from third countries cause, or threaten to cause, serious difficulties for the operation of economic and monetary union, the Council, on a proposal from the Commission and after consulting the European Central Bank, may take safeguard measures with regard to third countries for a period not exceeding six months if such measures are strictly necessary.
***
The original unconsolidated Treaty of Lisbon (ToL) with the amendments to the Treaty on European Union and the Treaty establishing the European Community, signed at Lisbon, 13 December 2007, is available in 23 treaty languages through:
http://eur-lex.europa.eu/JOIndex.do?year=2007&serie=C&textfield2=306&Submit=Search&_submit=Search&ihmlang=en
***
Article 2 ToL (containing the TEC amendments) had no specific amendments to Article 59 TEC. Cf. point 61 and 62 (OJ 17.12.2007 C 306/56).
‘Acting by a qualified majority’ was deleted according to horizontal amendment 2(d) and the abbreviation ‘ECB’ replaced by ‘European Central Bank’ in line with horizontal amendment 2(j).
***
For the consolidated treaties in force in your preferred language version among the then 21 treaty languages (Bulgarian and Romanian missing), go to:
http://eur-lex.europa.eu/JOIndex.do?year=2006&serie=C&textfield2=321E&Submit=Search&_submit=Search&ihmlang=en
***
The current Article 59 of the Treaty establishing the European Community (TEC) is found in the latest consolidated version of the treaties (OJ 29.12.2006 C 321 E/65):
Article 59 TEC
Where, in exceptional circumstances, movements of capital to or from third countries cause, or threaten to cause, serious difficulties for the operation of economic and monetary union, the Council, acting by a qualified majority on a proposal from the Commission and after consulting the ECB, may take safeguard measures with regard to third countries for a period not exceeding six months if such measures are strictly necessary.
***
The European Convention introduced small stylistic changes in Article III-48 of the draft Treaty establishing a Constitution for Europe, but without material impact (OJ 18.7.2003 C 169/35):
Article III-48 Draft Constitution
Where, in exceptional circumstances, movements of capital to or from third countries cause, or threaten to cause, serious difficulties for the operation of economic and monetary union, the Council of Ministers, on a proposal from the Commission, may adopt European regulations or decisions introducing safeguard measures with regard to third countries for a period not exceeding six months if such measures are strictly necessary. It shall act after consulting the European Central Bank.
***
The differences between the draft Constitution and Article III-159 of the Treaty establishing a Constitution for Europe are minimal. ‘Operation’ became ‘functioning’ and the ‘Council of Ministers’ had become the ‘Council’. See OJ 16.12.2004 C 310/67.
***
We live “in interesting times” as regards the stability of the financial markets, so Article 66 TFEU may be of more than purely theoretical interest.
The provision offers the EU possibilities to safeguard the operation of economic and monetary union (EMU) with regard to third countries.
These measures can not be taken lightly. ‘Exceptional circumstances’, ‘serious difficulties’ and ‘strictly necessary’ all circumscribe recourse to such measures. In addition, six months is the maximum duration of a measure (but the wording does not exclude a new decision).
Ralf Grahn
EU TFEU: Exceptions to free movement of capital
Article 58 of the Treaty establishing the European Community (TEC) provides for exceptions to the free movement of capital and payments, and these are taken over by the Treaty of Lisbon in Article 65 of the Treaty on the Functioning of the European Union (TFEU). The Lisbon Treaty provision adds a new possibility to take restrictive measures as regards third countries.
***
Article 65 of the Treaty on the Functioning of the European Union (TFEU) is presented as it stands after the intergovernmental conference (IGC 2007) in the Treaty of Lisbon (ToL) and provisionally consolidated by the Council of the European Union (document 6655/08; page 94-95), with the location of the provision added from the table of equivalences (page 460 to 462):
Part Three ‘Policies and internal actions of the Union’
Title IV TFEU (ex Title III) ‘Free movement of persons, services and capital’
Chapter 4 ‘Capital and payments’
Article 65 TFEU
(ex Article 58 TEC)
1. The provisions of Article 63 shall be without prejudice to the right of Member States:
(a) to apply the relevant provisions of their tax law which distinguish between taxpayers who are not in the same situation with regard to their place of residence or with regard to the place where their capital is invested;
(b) to take all requisite measures to prevent infringements of national law and regulations, in particular in the field of taxation and the prudential supervision of financial institutions, or to lay down procedures for the declaration of capital movements for purposes of administrative or statistical information, or to take measures which are justified on grounds of public policy or public security.
2. The provisions of this Chapter shall be without prejudice to the applicability of restrictions on the right of establishment which are compatible with the Treaties.
3. The measures and procedures referred to in paragraphs 1 and 2 shall not constitute a means of arbitrary discrimination or a disguised restriction on the free movement of capital and payments as defined in Article 63.
4. In the absence of measures pursuant to Article 64(3), the Commission or, in the absence of a Commission decision within three months from the request of the Member State concerned, the Council, may adopt a decision stating that restrictive tax measures adopted by a Member State concerning one or more third countries are to be considered compatible with the Treaties in so far as they are justified by one of the objectives of the Union and compatible with the proper functioning of the internal market. The Council shall act unanimously on application by a Member State.
***
The intergovernmental conference (IGC 2007) mentions Article 58 of the Treaty establishing the European Community (TEC) in Article 2, point 61, of the Treaty of Lisbon (ToL). See OJ 17.12.2007 C 306/56:
61) In Article 58, the following new paragraph 4 shall be added:
‘4. In the absence of measures pursuant to Article 57(3), the Commission or, in the absence of a Commission decision within three months from the request of the Member State concerned, the Council, may adopt a decision stating that restrictive tax measures adopted by a Member State concerning one or more third countries are to be considered compatible with the Treaties insofar as they are justified by one of the objectives of the Union and compatible with the proper functioning of the internal market. The Council shall act unanimously on application by a Member State.’.
***
The latest consolidated version of the current Article 58 TEC looks like this (OJ 29.12.2006 C 321 E/64):
Article 58 TEC
1. The provisions of Article 56 shall be without prejudice to the right of Member States:
(a) to apply the relevant provisions of their tax law which distinguish between taxpayers who are not in the same situation with regard to their place of residence or with regard to the place where their capital is invested;
(b) to take all requisite measures to prevent infringements of national law and regulations, in particular in the field of taxation and the prudential supervision of financial institutions, or to lay down procedures for the declaration of capital movements for purposes of administrative or statistical information, or to take measures which are justified on grounds of public policy or public security.
2. The provisions of this Chapter shall be without prejudice to the applicability of restrictions on the right of establishment which are compatible with this Treaty.
3. The measures and procedures referred to in paragraphs 1 and 2 shall not constitute a means of arbitrary discrimination or a disguised restriction on the free movement of capital and payments as defined in Article 56.
***
The European Convention made only cosmetic amendments to Article 58 TEC in Article III-47 of the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/35).
***
Article III-158 of the Treaty establishing a Constitution for Europe replaced the word ‘steps’ of the draft Constitution with ‘measures’ as in the current Article 58 TEC, so only the added words in the phrase ‘provisions laid down by law or regulation’ in subparagraph 1(b) remained of the cosmetic changes proposed by the draft.
But the IGC 2004 made one substantial change by adding a fourth paragraph to Article III-158, reproduced below (OJ 16.12.2004 C 310/67):
Article III-158 Constitution
1. Article III-156 shall be without prejudice to the right of Member States:
(a) to apply the relevant provisions of their tax law which distinguish between taxpayers who are not in the same situation with regard to their place of residence or with regard to the place where their capital is invested;
(b) to take all requisite measures to prevent infringements of national provisions laid down by law or regulation, in particular in the field of taxation and the prudential supervision of financial institutions, or to lay down procedures for the declaration of capital movements for purposes of administrative or statistical information, or to take measures which are justified on grounds of public policy or public security.
2. This Section shall be without prejudice to the applicability of restrictions on the right of establishment which are compatible with the Constitution.
3. The measures and procedures referred to in paragraphs 1 and 2 shall not constitute a means of arbitrary discrimination or a disguised restriction on the free movement of capital and payments as defined in Article III-156.
4. In the absence of a European law or framework law provided for in Article III-157(3), the Commission or, in the absence of a European decision of the Commission within three months from the request of the Member State concerned, the Council, may adopt a European decision stating that restrictive tax measures adopted by a Member State concerning one or more third countries are to be considered compatible with the Constitution insofar as they are justified by one of the objectives of the Union and compatible with the proper functioning of the internal market. The Council shall act unanimously on application by a Member State.
***
We see that the fourth paragraph added by the Treaty of Lisbon to what becomes Article 65 TFEU is in essence the corresponding Article III-158(4) of the Constitutional Treaty. The changes in wording relate to general terminological differences between the two treaties.
This ‘parentage’ is mentioned in the German and Finnish ratification bills and in the consultation paper of the Swedish government.
Thus, the amendment fell under the general provision of the IGC 2007 Mandate regarding amendments to the EC Treaty (Council document 11218/07, page 7, point 18): The innovations agreed in the 2004 IGC will be inserted into the Treaty by way of specific modifications in the usual manner.
Ralf Grahn
***
Article 65 of the Treaty on the Functioning of the European Union (TFEU) is presented as it stands after the intergovernmental conference (IGC 2007) in the Treaty of Lisbon (ToL) and provisionally consolidated by the Council of the European Union (document 6655/08; page 94-95), with the location of the provision added from the table of equivalences (page 460 to 462):
Part Three ‘Policies and internal actions of the Union’
Title IV TFEU (ex Title III) ‘Free movement of persons, services and capital’
Chapter 4 ‘Capital and payments’
Article 65 TFEU
(ex Article 58 TEC)
1. The provisions of Article 63 shall be without prejudice to the right of Member States:
(a) to apply the relevant provisions of their tax law which distinguish between taxpayers who are not in the same situation with regard to their place of residence or with regard to the place where their capital is invested;
(b) to take all requisite measures to prevent infringements of national law and regulations, in particular in the field of taxation and the prudential supervision of financial institutions, or to lay down procedures for the declaration of capital movements for purposes of administrative or statistical information, or to take measures which are justified on grounds of public policy or public security.
2. The provisions of this Chapter shall be without prejudice to the applicability of restrictions on the right of establishment which are compatible with the Treaties.
3. The measures and procedures referred to in paragraphs 1 and 2 shall not constitute a means of arbitrary discrimination or a disguised restriction on the free movement of capital and payments as defined in Article 63.
4. In the absence of measures pursuant to Article 64(3), the Commission or, in the absence of a Commission decision within three months from the request of the Member State concerned, the Council, may adopt a decision stating that restrictive tax measures adopted by a Member State concerning one or more third countries are to be considered compatible with the Treaties in so far as they are justified by one of the objectives of the Union and compatible with the proper functioning of the internal market. The Council shall act unanimously on application by a Member State.
***
The intergovernmental conference (IGC 2007) mentions Article 58 of the Treaty establishing the European Community (TEC) in Article 2, point 61, of the Treaty of Lisbon (ToL). See OJ 17.12.2007 C 306/56:
61) In Article 58, the following new paragraph 4 shall be added:
‘4. In the absence of measures pursuant to Article 57(3), the Commission or, in the absence of a Commission decision within three months from the request of the Member State concerned, the Council, may adopt a decision stating that restrictive tax measures adopted by a Member State concerning one or more third countries are to be considered compatible with the Treaties insofar as they are justified by one of the objectives of the Union and compatible with the proper functioning of the internal market. The Council shall act unanimously on application by a Member State.’.
***
The latest consolidated version of the current Article 58 TEC looks like this (OJ 29.12.2006 C 321 E/64):
Article 58 TEC
1. The provisions of Article 56 shall be without prejudice to the right of Member States:
(a) to apply the relevant provisions of their tax law which distinguish between taxpayers who are not in the same situation with regard to their place of residence or with regard to the place where their capital is invested;
(b) to take all requisite measures to prevent infringements of national law and regulations, in particular in the field of taxation and the prudential supervision of financial institutions, or to lay down procedures for the declaration of capital movements for purposes of administrative or statistical information, or to take measures which are justified on grounds of public policy or public security.
2. The provisions of this Chapter shall be without prejudice to the applicability of restrictions on the right of establishment which are compatible with this Treaty.
3. The measures and procedures referred to in paragraphs 1 and 2 shall not constitute a means of arbitrary discrimination or a disguised restriction on the free movement of capital and payments as defined in Article 56.
***
The European Convention made only cosmetic amendments to Article 58 TEC in Article III-47 of the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/35).
***
Article III-158 of the Treaty establishing a Constitution for Europe replaced the word ‘steps’ of the draft Constitution with ‘measures’ as in the current Article 58 TEC, so only the added words in the phrase ‘provisions laid down by law or regulation’ in subparagraph 1(b) remained of the cosmetic changes proposed by the draft.
But the IGC 2004 made one substantial change by adding a fourth paragraph to Article III-158, reproduced below (OJ 16.12.2004 C 310/67):
Article III-158 Constitution
1. Article III-156 shall be without prejudice to the right of Member States:
(a) to apply the relevant provisions of their tax law which distinguish between taxpayers who are not in the same situation with regard to their place of residence or with regard to the place where their capital is invested;
(b) to take all requisite measures to prevent infringements of national provisions laid down by law or regulation, in particular in the field of taxation and the prudential supervision of financial institutions, or to lay down procedures for the declaration of capital movements for purposes of administrative or statistical information, or to take measures which are justified on grounds of public policy or public security.
2. This Section shall be without prejudice to the applicability of restrictions on the right of establishment which are compatible with the Constitution.
3. The measures and procedures referred to in paragraphs 1 and 2 shall not constitute a means of arbitrary discrimination or a disguised restriction on the free movement of capital and payments as defined in Article III-156.
4. In the absence of a European law or framework law provided for in Article III-157(3), the Commission or, in the absence of a European decision of the Commission within three months from the request of the Member State concerned, the Council, may adopt a European decision stating that restrictive tax measures adopted by a Member State concerning one or more third countries are to be considered compatible with the Constitution insofar as they are justified by one of the objectives of the Union and compatible with the proper functioning of the internal market. The Council shall act unanimously on application by a Member State.
***
We see that the fourth paragraph added by the Treaty of Lisbon to what becomes Article 65 TFEU is in essence the corresponding Article III-158(4) of the Constitutional Treaty. The changes in wording relate to general terminological differences between the two treaties.
This ‘parentage’ is mentioned in the German and Finnish ratification bills and in the consultation paper of the Swedish government.
Thus, the amendment fell under the general provision of the IGC 2007 Mandate regarding amendments to the EC Treaty (Council document 11218/07, page 7, point 18): The innovations agreed in the 2004 IGC will be inserted into the Treaty by way of specific modifications in the usual manner.
Ralf Grahn
Saturday, 19 April 2008
EU TFEU: Free movement of capital and third countries
The preceding Article 56 of the Treaty establishing the European Community (TEC) and Article 63 of the Treaty on the Functioning of the European Union (TFEU) prohibited all restrictions on the movement of capital and on payments between member states and between member states and third countries.
But the primary goal has been to guarantee the free flow of capital within the European Community (European Union), with third countries subject to exceptions detailed in Article 57 TEC and 64 TFEU.
As regards third countries liberalisation is till professed, but derogations confessed.
***
Article 64 of the Treaty on the Functioning of the European Union (TFEU) is presented as it stands after the intergovernmental conference (IGC 2007) in the Treaty of Lisbon (ToL) and provisionally consolidated by the Council of the European Union (document 6655/08; page 93-94), with the location of the provision added from the table of equivalences (page 460 to 462):
Part Three ‘Policies and internal actions of the Union’
Title IV TFEU (ex Title III) ‘Free movement of persons, services and capital’
Chapter 4 ‘Capital and payments’
Article 64 TFEU
(ex Article 57 TEC)
1. The provisions of Article 63 shall be without prejudice to the application to third countries of any restrictions which exist on 31 December 1993 under national or Union law adopted in respect of the movement of capital to or from third countries involving direct investment – including in real estate – establishment, the provision of financial services or the admission of securities to capital markets. In respect of restrictions existing under national law in Bulgaria, Estonia and Hungary, the relevant date shall be 31 December 1999.
2. Whilst endeavouring to achieve the objective of free movement of capital between Member States and third countries to the greatest extent possible and without prejudice to the other Chapters of the Treaties, the European Parliament and the Council, acting in accordance with the ordinary legislative procedure, shall adopt the measures on the movement of capital to or from third countries involving direct investment – including investment in real estate – establishment, the provision of financial services or the admission of securities to capital markets.
3. Notwithstanding paragraph 2, only the Council, acting in accordance with a special legislative procedure, may unanimously, and after consulting the European Parliament, adopt measures which constitute a step backwards in Union law as regards the liberalisation of the movement of capital to or from third countries.
***
The specific Lisbon Treaty amendments to Article 57 of the Treaty establishing the European Community (TEC) are mentioned in point 60 (OJ 17.12.2007 C 306/55):
CAPITAL
60) In Article 57(2), the words ‘the Council may, acting by a qualified majority on a proposal from the Commission, adopt measures’ shall be replaced by ‘the European Parliament and the Council, acting in accordance with the ordinary legislative procedure, shall adopt the measures’ and the last sentence of paragraph 2 shall become paragraph 3, reading as follows:
‘3. Notwithstanding paragraph 2, only the Council, acting in accordance with a special legislative procedure, may unanimously, and after consulting the European Parliament, adopt measures which constitute a step backwards in Union law as regards the liberalisation of the movement of capital to or from third countries.’
***
For comparison, the current Article 57 TEC looks like this (in the latest consolidated version of the treaties in force, OJ 29.12.2006 C 321 E/64):
Article 57 TEC
1. The provisions of Article 56 shall be without prejudice to the application to third countries of any restrictions which exist on 31 December 1993 under national or Community law adopted in respect of the movement of capital to or from third countries involving direct investment – including in real estate – establishment, the provision of financial services or the admission of securities to capital markets. In respect of restrictions existing under national law in Estonia and Hungary, the relevant date shall be 31 December 1999.
2. Whilst endeavouring to achieve the objective of free movement of capital between Member States and third countries to the greatest extent possible and without prejudice to the other Chapters of this Treaty, the Council may, acting by a qualified majority on a proposal from the Commission, adopt measures on the movement of capital to or from third countries involving direct investment – including investment in real estate – establishment, the provision of financial services or the admission of securities to capital markets. Unanimity shall be required for measures under this paragraph which constitute a step back in Community law as regards the liberalisation of the movement of capital to or from third countries.
____________________________________________________________________
A footnote to Article 57 TEC adds the following information: Article amended by the 2003 Act of Accession. See Appendix at the end of this publication.
***
The European Convention proposed the following Article III-46 of the draft Treaty establishing a Constitution for Europe (18.7.2003 C 169/34-35):
Article III-46 Draft Constitution
1. Article III-45 shall be without prejudice to the application to third countries of any restrictions which existed on 31 December 1993 under national or Union law adopted in respect of the movement of capital to or from third countries involving direct investment — including in real estate —, establishment, the provision of financial services or the admission of securities to capital markets.
2. European laws or framework laws shall enact measures on the movement of capital to or from third countries involving direct investment — including investment in real estate —, establishment, the provision of financial services or the admission of securities to capital markets.
The European Parliament and the Council of Ministers shall endeavour to achieve the objective of free movement of capital between Member States and third countries to the greatest extent possible and without prejudice to other provisions of the Constitution.
3. Notwithstanding paragraph 2, only a European law or framework law of the Council of Ministers may enact measures which constitute a step back in Union law as regards the liberalisation of the movement of capital to or from third countries. The Council of Ministers shall act unanimously after consulting the European Parliament.
***
Article III-157 of the Treaty establishing a Constitution for Europe added the effects of the 2003 Accession Treaty (OJ 16.12.2004 C 310/66-67):
Article III-157 Constitution
1. Article III-156 shall be without prejudice to the application to third countries of any restrictions which existed on 31 December 1993 under national or Union law adopted in respect of the movement of capital to or from third countries involving direct investment — including investment in real estate, establishment, the provision of financial services or the admission of securities to capital markets. With regard to restrictions which exist under national law in Estonia and Hungary, the date in question shall be 31 December 1999.
2. European laws or framework laws shall enact measures on the movement of capital to or from third countries involving direct investment — including investment in real estate, establishment, the provision of financial services or the admission of securities to capital markets.
The European Parliament and the Council shall endeavour to achieve the objective of free movement of capital between Member States and third countries to the greatest extent possible and without prejudice to other provisions of the Constitution.
3. Notwithstanding paragraph 2, only a European law or framework law of the Council may enact measures which constitute a step backwards in Union law as regards the liberalisation of the movement of capital to or from third countries. The Council shall act unanimously after consulting the European Parliament.
***
What, if anything, happened to Article 57 TEC during the post-Nice treaty reform cycle?
Article III-46(1) of the draft Constitution was essentially the same as Article 57(1) TEC, but the Accession Act 2003 added the last sentence on national law in Estonia and Hungary and the stand-still date of 31 December 1999 to the latest consolidated TEC version.
Article III-46(2) of the draft Constitution was arguably easier to read than Article 57(2) TEC. The European Convention proposed its general terminology concerning legislative acts – European laws or framework laws – and substantially the extension of the ordinary legislative procedure (co-decision) to the movement of capital to or from third countries.
Backsliding on achieved liberalisation regarding third countries became Article III-46(3) in the draft Constitution instead of the last sentence of Article 57(2) TEC. Unanimity in the Council was retained, but the European Parliament was to be consulted.
Compared to the draft Constitution the Constitutional Treaty inserted the last sentence on the new member states Estonia and Hungary into the first paragraph of Article III-157.
In Article III-157 Constitution ‘a step back’ became ‘a step backwards’, but otherwise the draft and the Constitution have the same wording.
The Treaty of Lisbon, Article 64 TFEU, takes over as horizontal amendments ‘Union law’ instead of ‘Community law’ and ‘the Treaties’ instead of ‘this Treaty’ from the draft Constitution and the Constitutional Treaty.
The new entrant Bulgaria is added to Estonia and Hungary at the end of paragraph 1. The dash between ‘real estate’ and ‘establishment’, mislaid by the Constitution Article II-157(1) and (2), was retained in Article 64(1) and (2) TFEU as part of the Article 57(1) and (2) TEC text.
The ordinary legislative procedure is adopted in Article 64(2) TFEU, substantially in line with the European Convention’s proposal and the agreement by the IGC 2004.
When the last sentence of Article 57(2) TEC is deleted and replaced by the third paragraph the Lisbon Treaty Article 64 TFEU adopts, the wording resembles a hybrid between all the reform stages.
***
Article 64(1) is a stand-still clause as regards capital movements to and from third countries. Its subject matter covers direct investment – including in real estate – establishment, the provision of financial services or the admission of securities to capital markets.
The stand-still date is 31 December 1993 for Union law and national law in general, except for Bulgaria, Estonia and Hungary where the date is 31 December 1999.
The Appendix to the latest consolidated version of the current treaties ‘Amendments fo primary legislation further to the accession of the Republic of Bulgaria and Romania to the European Union’ contains the following text concerning the Treaty establishing the European Community (OJ 29.12.2006 C 321 E/327):
1. The last sentence of Article 57(1) shall be replaced by the following:
‘In respect of restrictions existing under national law in Bulgaria, Estonia and Hungary, the relevant date shall be 31 December 1999.’
This has now been inserted into the Treaty of Lisbon (TFEU).
New restrictions can be introduced only according to the special legislative procedure requiring unanimity in the Council (paragraph 3).
***
As regards further reading, I refer the interested reader to yesterday’s post ‘EU TFEU: Free movement of capital’.
Ralf Grahn
But the primary goal has been to guarantee the free flow of capital within the European Community (European Union), with third countries subject to exceptions detailed in Article 57 TEC and 64 TFEU.
As regards third countries liberalisation is till professed, but derogations confessed.
***
Article 64 of the Treaty on the Functioning of the European Union (TFEU) is presented as it stands after the intergovernmental conference (IGC 2007) in the Treaty of Lisbon (ToL) and provisionally consolidated by the Council of the European Union (document 6655/08; page 93-94), with the location of the provision added from the table of equivalences (page 460 to 462):
Part Three ‘Policies and internal actions of the Union’
Title IV TFEU (ex Title III) ‘Free movement of persons, services and capital’
Chapter 4 ‘Capital and payments’
Article 64 TFEU
(ex Article 57 TEC)
1. The provisions of Article 63 shall be without prejudice to the application to third countries of any restrictions which exist on 31 December 1993 under national or Union law adopted in respect of the movement of capital to or from third countries involving direct investment – including in real estate – establishment, the provision of financial services or the admission of securities to capital markets. In respect of restrictions existing under national law in Bulgaria, Estonia and Hungary, the relevant date shall be 31 December 1999.
2. Whilst endeavouring to achieve the objective of free movement of capital between Member States and third countries to the greatest extent possible and without prejudice to the other Chapters of the Treaties, the European Parliament and the Council, acting in accordance with the ordinary legislative procedure, shall adopt the measures on the movement of capital to or from third countries involving direct investment – including investment in real estate – establishment, the provision of financial services or the admission of securities to capital markets.
3. Notwithstanding paragraph 2, only the Council, acting in accordance with a special legislative procedure, may unanimously, and after consulting the European Parliament, adopt measures which constitute a step backwards in Union law as regards the liberalisation of the movement of capital to or from third countries.
***
The specific Lisbon Treaty amendments to Article 57 of the Treaty establishing the European Community (TEC) are mentioned in point 60 (OJ 17.12.2007 C 306/55):
CAPITAL
60) In Article 57(2), the words ‘the Council may, acting by a qualified majority on a proposal from the Commission, adopt measures’ shall be replaced by ‘the European Parliament and the Council, acting in accordance with the ordinary legislative procedure, shall adopt the measures’ and the last sentence of paragraph 2 shall become paragraph 3, reading as follows:
‘3. Notwithstanding paragraph 2, only the Council, acting in accordance with a special legislative procedure, may unanimously, and after consulting the European Parliament, adopt measures which constitute a step backwards in Union law as regards the liberalisation of the movement of capital to or from third countries.’
***
For comparison, the current Article 57 TEC looks like this (in the latest consolidated version of the treaties in force, OJ 29.12.2006 C 321 E/64):
Article 57 TEC
1. The provisions of Article 56 shall be without prejudice to the application to third countries of any restrictions which exist on 31 December 1993 under national or Community law adopted in respect of the movement of capital to or from third countries involving direct investment – including in real estate – establishment, the provision of financial services or the admission of securities to capital markets. In respect of restrictions existing under national law in Estonia and Hungary, the relevant date shall be 31 December 1999.
2. Whilst endeavouring to achieve the objective of free movement of capital between Member States and third countries to the greatest extent possible and without prejudice to the other Chapters of this Treaty, the Council may, acting by a qualified majority on a proposal from the Commission, adopt measures on the movement of capital to or from third countries involving direct investment – including investment in real estate – establishment, the provision of financial services or the admission of securities to capital markets. Unanimity shall be required for measures under this paragraph which constitute a step back in Community law as regards the liberalisation of the movement of capital to or from third countries.
____________________________________________________________________
A footnote to Article 57 TEC adds the following information: Article amended by the 2003 Act of Accession. See Appendix at the end of this publication.
***
The European Convention proposed the following Article III-46 of the draft Treaty establishing a Constitution for Europe (18.7.2003 C 169/34-35):
Article III-46 Draft Constitution
1. Article III-45 shall be without prejudice to the application to third countries of any restrictions which existed on 31 December 1993 under national or Union law adopted in respect of the movement of capital to or from third countries involving direct investment — including in real estate —, establishment, the provision of financial services or the admission of securities to capital markets.
2. European laws or framework laws shall enact measures on the movement of capital to or from third countries involving direct investment — including investment in real estate —, establishment, the provision of financial services or the admission of securities to capital markets.
The European Parliament and the Council of Ministers shall endeavour to achieve the objective of free movement of capital between Member States and third countries to the greatest extent possible and without prejudice to other provisions of the Constitution.
3. Notwithstanding paragraph 2, only a European law or framework law of the Council of Ministers may enact measures which constitute a step back in Union law as regards the liberalisation of the movement of capital to or from third countries. The Council of Ministers shall act unanimously after consulting the European Parliament.
***
Article III-157 of the Treaty establishing a Constitution for Europe added the effects of the 2003 Accession Treaty (OJ 16.12.2004 C 310/66-67):
Article III-157 Constitution
1. Article III-156 shall be without prejudice to the application to third countries of any restrictions which existed on 31 December 1993 under national or Union law adopted in respect of the movement of capital to or from third countries involving direct investment — including investment in real estate, establishment, the provision of financial services or the admission of securities to capital markets. With regard to restrictions which exist under national law in Estonia and Hungary, the date in question shall be 31 December 1999.
2. European laws or framework laws shall enact measures on the movement of capital to or from third countries involving direct investment — including investment in real estate, establishment, the provision of financial services or the admission of securities to capital markets.
The European Parliament and the Council shall endeavour to achieve the objective of free movement of capital between Member States and third countries to the greatest extent possible and without prejudice to other provisions of the Constitution.
3. Notwithstanding paragraph 2, only a European law or framework law of the Council may enact measures which constitute a step backwards in Union law as regards the liberalisation of the movement of capital to or from third countries. The Council shall act unanimously after consulting the European Parliament.
***
What, if anything, happened to Article 57 TEC during the post-Nice treaty reform cycle?
Article III-46(1) of the draft Constitution was essentially the same as Article 57(1) TEC, but the Accession Act 2003 added the last sentence on national law in Estonia and Hungary and the stand-still date of 31 December 1999 to the latest consolidated TEC version.
Article III-46(2) of the draft Constitution was arguably easier to read than Article 57(2) TEC. The European Convention proposed its general terminology concerning legislative acts – European laws or framework laws – and substantially the extension of the ordinary legislative procedure (co-decision) to the movement of capital to or from third countries.
Backsliding on achieved liberalisation regarding third countries became Article III-46(3) in the draft Constitution instead of the last sentence of Article 57(2) TEC. Unanimity in the Council was retained, but the European Parliament was to be consulted.
Compared to the draft Constitution the Constitutional Treaty inserted the last sentence on the new member states Estonia and Hungary into the first paragraph of Article III-157.
In Article III-157 Constitution ‘a step back’ became ‘a step backwards’, but otherwise the draft and the Constitution have the same wording.
The Treaty of Lisbon, Article 64 TFEU, takes over as horizontal amendments ‘Union law’ instead of ‘Community law’ and ‘the Treaties’ instead of ‘this Treaty’ from the draft Constitution and the Constitutional Treaty.
The new entrant Bulgaria is added to Estonia and Hungary at the end of paragraph 1. The dash between ‘real estate’ and ‘establishment’, mislaid by the Constitution Article II-157(1) and (2), was retained in Article 64(1) and (2) TFEU as part of the Article 57(1) and (2) TEC text.
The ordinary legislative procedure is adopted in Article 64(2) TFEU, substantially in line with the European Convention’s proposal and the agreement by the IGC 2004.
When the last sentence of Article 57(2) TEC is deleted and replaced by the third paragraph the Lisbon Treaty Article 64 TFEU adopts, the wording resembles a hybrid between all the reform stages.
***
Article 64(1) is a stand-still clause as regards capital movements to and from third countries. Its subject matter covers direct investment – including in real estate – establishment, the provision of financial services or the admission of securities to capital markets.
The stand-still date is 31 December 1993 for Union law and national law in general, except for Bulgaria, Estonia and Hungary where the date is 31 December 1999.
The Appendix to the latest consolidated version of the current treaties ‘Amendments fo primary legislation further to the accession of the Republic of Bulgaria and Romania to the European Union’ contains the following text concerning the Treaty establishing the European Community (OJ 29.12.2006 C 321 E/327):
1. The last sentence of Article 57(1) shall be replaced by the following:
‘In respect of restrictions existing under national law in Bulgaria, Estonia and Hungary, the relevant date shall be 31 December 1999.’
This has now been inserted into the Treaty of Lisbon (TFEU).
New restrictions can be introduced only according to the special legislative procedure requiring unanimity in the Council (paragraph 3).
***
As regards further reading, I refer the interested reader to yesterday’s post ‘EU TFEU: Free movement of capital’.
Ralf Grahn
Friday, 18 April 2008
EU TFEU: Free movement of capital
The current Treaty establishing the European Community as well as the Treaty on the Functioning of the European Union (following from the Treaty of Lisbon) prohibit restrictions on the movement of capital and on payments between member states as well as between member states and third countries.
***
We move to a Chapter 4 ‘Capital and payments’. Article 63 of the Treaty on the Functioning of the European Union (TFEU), is presented as amended by the intergovernmental conference (IGC 2007) in the Treaty of Lisbon (ToL) and provisionally consolidated by the Council of the European Union (document 6655/08; page 93), with the location of the provision added from the table of equivalences (page 460 to 462):
Part Three ‘Policies and internal actions of the Union’
Title IV TFEU ‘Free movement of persons, services and capital’
Chapter 4 ‘Capital and payments’
Article 63 TFEU
(ex Article 56 TEC)
1. Within the framework of the provisions set out in this Chapter, all restrictions on the movement of capital between Member States and between Member States and third countries shall be prohibited.
2. Within the framework of the provisions set out in this Chapter, all restrictions on payments between Member States and between Member States and third countries shall be prohibited.
***
The IGC 2007 made no specific amendment to Article 56 TEC. Cf. OJ 17.12.2007 C 306/55. The provision is only renumbered.
***
The current key provision on capital and payments, Article 56 TEC, is found in the latest consolidated version of the treaties, OJ 29.12.2006 C 321 E/63.
***
The European Convention preferred a shorter version of the opening provision of Section 4 ‘Capital and payments’ in the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/34):
SECTION 4
Capital and payments
Article III-45 Draft Constitution
Within the framework of this Section, restrictions both on the movement of capital and on payments between Member States and between Member States and third countries shall be prohibited.
***
The IGC 2004 adopted the wording of the draft in Article III-156 of the Treaty establishing a Constitution for Europe (OJ 16.12.2004 C 310/66).
***
We see that no substantial change has been adopted during the various stages of the treaty reform process after the Treaty of Nice, but the wording proposed by the European Convention and agreed by the IGC 2004 would arguably have been more elegant.
In this, as in many other cases, the IGC 2007 decided to save ink by preserving the current wording when the reasons for change would have been purely aesthetic.
***
Some suggestions for further reading, first two standard books:
Josephine Steiner, Lorna Woods and Christian Twigg-Flesner: EU Law (Oxford University Press, Ninth Edition, 2006), Chapter 16 Free movement of payments and capital (pages 344-354)
Paul Craig and Gráinne de Búrca: EU Law, Text, Cases, and Materials (Oxford University Press, Fourth Edition, 2007), page 723 to 727 in Chapter 20 Free movement of capital and economic and monetary union
Then a few web resources:
The Commission’s introductory web page ‘Free movement of capital’ offers a quick overview and additional links (last updated 30 May 2007):
http://ec.europa.eu/internal_market/capital/index_en.htm
The web page ‘Treaty provisions’ presents the basic rules and further links (last update 27 August 2007):
http://ec.europa.eu/internal_market/capital/framework/treaty_en.htm
The European Parliament fact sheet 3.2.4 ‘Free movement of capital’ is an alternative presentation of the basics (last updated 25 October 2006):
http://www.europarl.europa.eu/facts/3_2_4_en.htm
The Commission’s Scadplus pages offer summaries or links to introductory pages on European Community legislation. In this case the starting point could be the web page ‘Single market for capital’ with more than thirty links on different aspects (no date):
http://europa.eu/scadplus/leg/en/s70001.htm
EU Law Blog has three posts on recent ECJ cases archived under ‘Capital: Free movement’:
http://eulaw.typepad.com/eulawblog/free_movement_of_capital/index.html
An example of the Court of Justice’s reasoning about the relationship between the provision of services and free movement of capital is Case C-452/04:
http://curia.europa.eu/jurisp/cgi-bin/gettext.pl?where=&lang=en&num=79938996C19040452&doc=T&ouvert=T&seance=ARRET
Ralf Grahn
***
We move to a Chapter 4 ‘Capital and payments’. Article 63 of the Treaty on the Functioning of the European Union (TFEU), is presented as amended by the intergovernmental conference (IGC 2007) in the Treaty of Lisbon (ToL) and provisionally consolidated by the Council of the European Union (document 6655/08; page 93), with the location of the provision added from the table of equivalences (page 460 to 462):
Part Three ‘Policies and internal actions of the Union’
Title IV TFEU ‘Free movement of persons, services and capital’
Chapter 4 ‘Capital and payments’
Article 63 TFEU
(ex Article 56 TEC)
1. Within the framework of the provisions set out in this Chapter, all restrictions on the movement of capital between Member States and between Member States and third countries shall be prohibited.
2. Within the framework of the provisions set out in this Chapter, all restrictions on payments between Member States and between Member States and third countries shall be prohibited.
***
The IGC 2007 made no specific amendment to Article 56 TEC. Cf. OJ 17.12.2007 C 306/55. The provision is only renumbered.
***
The current key provision on capital and payments, Article 56 TEC, is found in the latest consolidated version of the treaties, OJ 29.12.2006 C 321 E/63.
***
The European Convention preferred a shorter version of the opening provision of Section 4 ‘Capital and payments’ in the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/34):
SECTION 4
Capital and payments
Article III-45 Draft Constitution
Within the framework of this Section, restrictions both on the movement of capital and on payments between Member States and between Member States and third countries shall be prohibited.
***
The IGC 2004 adopted the wording of the draft in Article III-156 of the Treaty establishing a Constitution for Europe (OJ 16.12.2004 C 310/66).
***
We see that no substantial change has been adopted during the various stages of the treaty reform process after the Treaty of Nice, but the wording proposed by the European Convention and agreed by the IGC 2004 would arguably have been more elegant.
In this, as in many other cases, the IGC 2007 decided to save ink by preserving the current wording when the reasons for change would have been purely aesthetic.
***
Some suggestions for further reading, first two standard books:
Josephine Steiner, Lorna Woods and Christian Twigg-Flesner: EU Law (Oxford University Press, Ninth Edition, 2006), Chapter 16 Free movement of payments and capital (pages 344-354)
Paul Craig and Gráinne de Búrca: EU Law, Text, Cases, and Materials (Oxford University Press, Fourth Edition, 2007), page 723 to 727 in Chapter 20 Free movement of capital and economic and monetary union
Then a few web resources:
The Commission’s introductory web page ‘Free movement of capital’ offers a quick overview and additional links (last updated 30 May 2007):
http://ec.europa.eu/internal_market/capital/index_en.htm
The web page ‘Treaty provisions’ presents the basic rules and further links (last update 27 August 2007):
http://ec.europa.eu/internal_market/capital/framework/treaty_en.htm
The European Parliament fact sheet 3.2.4 ‘Free movement of capital’ is an alternative presentation of the basics (last updated 25 October 2006):
http://www.europarl.europa.eu/facts/3_2_4_en.htm
The Commission’s Scadplus pages offer summaries or links to introductory pages on European Community legislation. In this case the starting point could be the web page ‘Single market for capital’ with more than thirty links on different aspects (no date):
http://europa.eu/scadplus/leg/en/s70001.htm
EU Law Blog has three posts on recent ECJ cases archived under ‘Capital: Free movement’:
http://eulaw.typepad.com/eulawblog/free_movement_of_capital/index.html
An example of the Court of Justice’s reasoning about the relationship between the provision of services and free movement of capital is Case C-452/04:
http://curia.europa.eu/jurisp/cgi-bin/gettext.pl?where=&lang=en&num=79938996C19040452&doc=T&ouvert=T&seance=ARRET
Ralf Grahn
Thursday, 17 April 2008
EU TFEU: Common rules for services and establishment
The free movement of services shares many rules concerning the right of establishment in the Treaty on the Functioning of the European Union, as it does in the current Treaty establishing the European Community.
The pattern of this post is modified to take into account the publication of the consolidated Treaty of Lisbon, published 16 April 2008 by the Council of the European Union in the 23 treaty languages.
***
This is Article 62 of the Treaty on the Functioning of the European Union (TFEU), as amended by the intergovernmental conference (IGC 2007) in the Treaty of Lisbon (ToL) and consolidated by the Council of the European Union (document 6655/08; page 93), with the location of the provision added from the table of equivalences:
Part Three ‘Policies and internal actions of the Union’
Title IV TFEU ‘Free movement of persons, services and capital’
Chapter 3 ‘Services’
Article 62 TFEU
(ex Article 55 TEC)
The provisions of Articles 51 to 54 shall apply to the matters covered by this Chapter.
***
The IGC 2007 made no specific amendments to Article 55 TEC, but the provision and its referrals are renumbered. Cf. OJ 17.12.2007 C 306/55.
***
For the convenience of those who want to use the current TEC, we present the provision with the ones it refers to (from the latest consolidated version of the existing treaties, OJ 29.12.2006 C 321 E/63):
Article 55 TEC
The provisions of Articles 45 to 48 shall apply to the matters covered by this Chapter.
***
Article III-35 of the draft Treaty establishing a Constitution for Europe was essentially the same (OJ 18.7.2003 C 169/33):
Article III-35 Draft Constitution
Articles III-24 to III-27 shall apply to the matters covered by this Subsection.
***
Article III-150 of the Treaty establishing a Constitution for Europe followed the draft in style (OJ 16.12.2004 C 310/64):
Article III-150
Articles III-139 to III-142 shall apply to the matters covered by this Subsection.
***
No material change has been proposed during the reform cycle from the European Convention to the Treaty of Lisbon.
We have reached the last provision of Chapter 3 ‘Services’ in order to find out that we are told to go back to Articles 51 to 54 TFEU in Chapter 2 ‘Right of establishment’ to get things right.
With those readers in mind, who do not have the amended provisions at hand, we present the texts here (TFEU consolidation, pages 89 and 90):
Article 51 TFEU
(ex Article 45 TEC)
The provisions of this Chapter shall not apply, so far as any given Member State is concerned, to activities which in that State are connected, even occasionally, with the exercise of official authority.
The European Parliament and the Council, acting in accordance with the ordinary legislative procedure, may rule that the provisions of this Chapter shall not apply to certain activities.
Article 52 TFEU
(ex Article 46 TEC)
1. The provisions of this Chapter and measures taken in pursuance thereof shall not prejudice the applicability of provisions laid down by law, regulation or administrative action providing for special treatment for foreign nationals on grounds of public policy, public security or public health.
2. The European Parliament and the Council shall, acting in accordance with the ordinary legislative procedure, issue directives for the coordination of the abovementioned provisions.
Article 53 TFEU
(ex Article 47 TEC)
1. In order to make it easier for persons to take up and pursue activities as self-employed persons, the European Parliament and the Council shall, acting in accordance with the ordinary legislative procedure, issue directives for the mutual recognition of diplomas, certificates and other evidence of formal qualifications and for the coordination of the provisions laid down by law, regulation or administrative action in Member States concerning the taking-up and pursuit of activities as self-employed persons.
2. In the case of the medical and allied and pharmaceutical professions, the progressive abolition of restrictions shall be dependent upon coordination of the conditions for their exercise in the various Member States.
Article 54 TFEU
(ex Article 48 TEC)
Companies or firms formed in accordance with the law of a Member State and having their registered office, central administration or principal place of business within the Union shall, for the purposes of this Chapter, be treated in the same way as natural persons who are nationals of Member States.
"Companies or firms" means companies or firms constituted under civil or commercial law, including cooperative societies, and other legal persons governed by public or private law, save for those which are non-profit-making.
***
We see that some of the derogations (exceptions) from the right of establishment apply to the free movement of services: the exercise of public authority and the grounds of public policy, public security or public health.
There are legal bases for legislation and there is the principle of equal treatment of companies.
For a closer look, se for instance Chapter 22 ‘Freedom of establishment and to provide services’ in Paul Craig and Gráinne de Búrca: EU Law, Text, Cases, and Materials (Oxford University Press, 4th Edition, 2007).
Ralf Grahn
The pattern of this post is modified to take into account the publication of the consolidated Treaty of Lisbon, published 16 April 2008 by the Council of the European Union in the 23 treaty languages.
***
This is Article 62 of the Treaty on the Functioning of the European Union (TFEU), as amended by the intergovernmental conference (IGC 2007) in the Treaty of Lisbon (ToL) and consolidated by the Council of the European Union (document 6655/08; page 93), with the location of the provision added from the table of equivalences:
Part Three ‘Policies and internal actions of the Union’
Title IV TFEU ‘Free movement of persons, services and capital’
Chapter 3 ‘Services’
Article 62 TFEU
(ex Article 55 TEC)
The provisions of Articles 51 to 54 shall apply to the matters covered by this Chapter.
***
The IGC 2007 made no specific amendments to Article 55 TEC, but the provision and its referrals are renumbered. Cf. OJ 17.12.2007 C 306/55.
***
For the convenience of those who want to use the current TEC, we present the provision with the ones it refers to (from the latest consolidated version of the existing treaties, OJ 29.12.2006 C 321 E/63):
Article 55 TEC
The provisions of Articles 45 to 48 shall apply to the matters covered by this Chapter.
***
Article III-35 of the draft Treaty establishing a Constitution for Europe was essentially the same (OJ 18.7.2003 C 169/33):
Article III-35 Draft Constitution
Articles III-24 to III-27 shall apply to the matters covered by this Subsection.
***
Article III-150 of the Treaty establishing a Constitution for Europe followed the draft in style (OJ 16.12.2004 C 310/64):
Article III-150
Articles III-139 to III-142 shall apply to the matters covered by this Subsection.
***
No material change has been proposed during the reform cycle from the European Convention to the Treaty of Lisbon.
We have reached the last provision of Chapter 3 ‘Services’ in order to find out that we are told to go back to Articles 51 to 54 TFEU in Chapter 2 ‘Right of establishment’ to get things right.
With those readers in mind, who do not have the amended provisions at hand, we present the texts here (TFEU consolidation, pages 89 and 90):
Article 51 TFEU
(ex Article 45 TEC)
The provisions of this Chapter shall not apply, so far as any given Member State is concerned, to activities which in that State are connected, even occasionally, with the exercise of official authority.
The European Parliament and the Council, acting in accordance with the ordinary legislative procedure, may rule that the provisions of this Chapter shall not apply to certain activities.
Article 52 TFEU
(ex Article 46 TEC)
1. The provisions of this Chapter and measures taken in pursuance thereof shall not prejudice the applicability of provisions laid down by law, regulation or administrative action providing for special treatment for foreign nationals on grounds of public policy, public security or public health.
2. The European Parliament and the Council shall, acting in accordance with the ordinary legislative procedure, issue directives for the coordination of the abovementioned provisions.
Article 53 TFEU
(ex Article 47 TEC)
1. In order to make it easier for persons to take up and pursue activities as self-employed persons, the European Parliament and the Council shall, acting in accordance with the ordinary legislative procedure, issue directives for the mutual recognition of diplomas, certificates and other evidence of formal qualifications and for the coordination of the provisions laid down by law, regulation or administrative action in Member States concerning the taking-up and pursuit of activities as self-employed persons.
2. In the case of the medical and allied and pharmaceutical professions, the progressive abolition of restrictions shall be dependent upon coordination of the conditions for their exercise in the various Member States.
Article 54 TFEU
(ex Article 48 TEC)
Companies or firms formed in accordance with the law of a Member State and having their registered office, central administration or principal place of business within the Union shall, for the purposes of this Chapter, be treated in the same way as natural persons who are nationals of Member States.
"Companies or firms" means companies or firms constituted under civil or commercial law, including cooperative societies, and other legal persons governed by public or private law, save for those which are non-profit-making.
***
We see that some of the derogations (exceptions) from the right of establishment apply to the free movement of services: the exercise of public authority and the grounds of public policy, public security or public health.
There are legal bases for legislation and there is the principle of equal treatment of companies.
For a closer look, se for instance Chapter 22 ‘Freedom of establishment and to provide services’ in Paul Craig and Gráinne de Búrca: EU Law, Text, Cases, and Materials (Oxford University Press, 4th Edition, 2007).
Ralf Grahn
EU: Consolidated Lisbon Treaty and beyond
Yesterday marked a great step forward for practical equality between citizens of the European Union. Formally, the principle of equal treatment applied as long as the Council published no consolidated language versions of the Treaty of Lisbon.
But in practice national consolidations were available only in a number of languages. As far as we were able to ascertain, there were readable versions in most of the widely spoken languages within the European Union.
These are rough guesses, because we can not be sure that the information we managed to gather was conclusive: Perhaps six out of ten EU citizens could find a readable version of the Lisbon Treaty in their own language, but a consolidated version was available in less than half of the treaty languages.
By finally publishing the Treaty of Lisbon in the 23 treaty languages, the Council filled a considerable void. Millions of European citizens can now read, debate, study and teach the amending treaties in their main language without unnecessary trouble.
***
The Council of the European Union issued a note to the reader stating that the publication is ‘provisional in nature’. If errors crop up during the ratification stage, these have to be corrected (Council cover note, document 6655/08).
***
What about this blog?
My aim has been to advance through the treaties as they stand if the Treaty of Lisbon enters into force. Until now it has been possible to progress one Article a day, without exceptions, and hopefully this can continue.
Even if this blog is written in English, something changes when readers with another main language can refer to a consolidated version in their own language.
Somehow, I feel that it would be natural to outline the future posts a little differently from now on. These thoughts are ‘provisional in nature’, so tell me if you have ideas:
First, the basic element would be “a slice of salami”, one treaty Article (a day) as consolidated. This means that redundant or fairly insignificant provisions are treated as well, at least superficially. A headline, more or less accurate, may help you to find what you are looking for.
Second, a look at the possible changes made by the intergovernmental conference would follow. Most of the internal policy areas remain largely unchanged, but that does not prevent anyone from trying to understand the treaty provisions the policies are based on.
Third, the preceding treaty reform stages, namely the current treaty, the draft Constitution and the Constitutional Treaty, would be presented either through comments or by offering the text of the provision.
Fourth, depending on the circumstances there may be more or less objective comments, subjective opinions or suggestions for further reading (in the general area under study).
***
This is how the next leg of the journey looks like, after the publication of the consolidated Lisbon Treaty in the 23 treaty languages.
Ralf Grahn
But in practice national consolidations were available only in a number of languages. As far as we were able to ascertain, there were readable versions in most of the widely spoken languages within the European Union.
These are rough guesses, because we can not be sure that the information we managed to gather was conclusive: Perhaps six out of ten EU citizens could find a readable version of the Lisbon Treaty in their own language, but a consolidated version was available in less than half of the treaty languages.
By finally publishing the Treaty of Lisbon in the 23 treaty languages, the Council filled a considerable void. Millions of European citizens can now read, debate, study and teach the amending treaties in their main language without unnecessary trouble.
***
The Council of the European Union issued a note to the reader stating that the publication is ‘provisional in nature’. If errors crop up during the ratification stage, these have to be corrected (Council cover note, document 6655/08).
***
What about this blog?
My aim has been to advance through the treaties as they stand if the Treaty of Lisbon enters into force. Until now it has been possible to progress one Article a day, without exceptions, and hopefully this can continue.
Even if this blog is written in English, something changes when readers with another main language can refer to a consolidated version in their own language.
Somehow, I feel that it would be natural to outline the future posts a little differently from now on. These thoughts are ‘provisional in nature’, so tell me if you have ideas:
First, the basic element would be “a slice of salami”, one treaty Article (a day) as consolidated. This means that redundant or fairly insignificant provisions are treated as well, at least superficially. A headline, more or less accurate, may help you to find what you are looking for.
Second, a look at the possible changes made by the intergovernmental conference would follow. Most of the internal policy areas remain largely unchanged, but that does not prevent anyone from trying to understand the treaty provisions the policies are based on.
Third, the preceding treaty reform stages, namely the current treaty, the draft Constitution and the Constitutional Treaty, would be presented either through comments or by offering the text of the provision.
Fourth, depending on the circumstances there may be more or less objective comments, subjective opinions or suggestions for further reading (in the general area under study).
***
This is how the next leg of the journey looks like, after the publication of the consolidated Lisbon Treaty in the 23 treaty languages.
Ralf Grahn
Wednesday, 16 April 2008
Consolidated EU Lisbon Treaty in 23 languages
The Council of the European Union has finally published the readable, consolidated Treaty of Lisbon in 23 treaty languages on its web site. Go to:
http://www.consilium.europa.eu/showPage.asp?lang=en&id=1296&mode=g&name=
In a few days ten months would have passed from the European Council meeting, which decided to convene the intergovernmental conference (IGC 2007), ten long months without a readable version of the most important EC and EU document since 2004.
Finally, most of the EU’s 490 million citizens can read the treaty in their own language (or at least the official language of their country) as it is supposed to stand when it enters into force.
Based on consolidated versions Europeans can at least begin to (mis)understand each other on a common basis of facts.
Ralf Grahn
P.S. After checking the Official Journal this morning, I had to do other things than to continue chasing the promised consolidations. I got the above information from John Carroll of Semper Idem on his Irish Election blog, a post called 'Lisbon - The nuts and bolts', of 16 April 2008:
http://www.irishelection.com/04/lisbon-the-nuts-and-bolts/
I am grateful to John Carroll for both his kind words and for the essential information on publication of the amending EU treaties.
http://www.consilium.europa.eu/showPage.asp?lang=en&id=1296&mode=g&name=
In a few days ten months would have passed from the European Council meeting, which decided to convene the intergovernmental conference (IGC 2007), ten long months without a readable version of the most important EC and EU document since 2004.
Finally, most of the EU’s 490 million citizens can read the treaty in their own language (or at least the official language of their country) as it is supposed to stand when it enters into force.
Based on consolidated versions Europeans can at least begin to (mis)understand each other on a common basis of facts.
Ralf Grahn
P.S. After checking the Official Journal this morning, I had to do other things than to continue chasing the promised consolidations. I got the above information from John Carroll of Semper Idem on his Irish Election blog, a post called 'Lisbon - The nuts and bolts', of 16 April 2008:
http://www.irishelection.com/04/lisbon-the-nuts-and-bolts/
I am grateful to John Carroll for both his kind words and for the essential information on publication of the amending EU treaties.
EU against the death penalty
Is the European Union going to re-introduce the death penalty, as claimed as gospel truth by at least Wonko’s World, Why England Needs A Parliament, John Trenchard, PJC Journal and by now a host of other blogs read by thousands of impressionable readers?
None of the above seems to have done any research on their own, but they seem to have been more than willing to publish as a fact that the European Union ‘in a footnote of a footnote’ is making the death penalty possible.
By the look of it, the likely ultimate source is a June 2005 interview with Professor Karl Albrecht Schachtschneider in German, with the double headline ‘Europa nicht als Groβstaat, sondern als “Republik der Republiken” organiseren – Interview mit Prof. Karl Albrecht Schachtschneider über die EU-Verfassung’, posted on the web pages of BüSo, Bürgerrechtsbewegung Solidarität.
The interview contains a heading ‘Wiederkehr des Todesstrafe?’ (Return of the death penalty?), and Schachtschneider’s answer that Article II-62 of the Constitutional Treaty (and the Charter of Fundamental Rights) is untrue. His gives the explanations relating to the Charter as his reasons for two claims: 1) that there is no Constitutional protection of the right to life anymore in the case of war or imminent danger of war, and 2) that the death penalty is possible and will come.
***
Let us take a look at the EU position on the death penalty. Here is the political answer, the one which came out on top when I googled ‘EU death penalty’. The Delegation of the European Commission to the USA has a web page dedicated to ‘EU policy & action on the death penalty’. The following categorical statement can be found there:
“The European Union (EU) is opposed to the death penalty in all cases and has consistently espoused its universal abolition, working towards this goal.”
The web pages contain 73 links to various policy documents, action in the United Nations, action on US death row cases, European and international agreements and policy makers as well as archived documents relating to earlier years.
See for yourself:
http://www.eurunion.org/legislat/deathpenalty/deathpenhome.htm
Fairly conclusive for a normal person, one would think: The European Union is against capital punishment.
***
The motives and working ethics of bloggers like the above are such that I do not want to begin dissecting them.
But how is it possible that the EU institutions and the governments of the member states let such wildfires start and spread without actively, visibly and instantly rebutting malicious rumours devoid of factual basis?
Ralf Grahn
None of the above seems to have done any research on their own, but they seem to have been more than willing to publish as a fact that the European Union ‘in a footnote of a footnote’ is making the death penalty possible.
By the look of it, the likely ultimate source is a June 2005 interview with Professor Karl Albrecht Schachtschneider in German, with the double headline ‘Europa nicht als Groβstaat, sondern als “Republik der Republiken” organiseren – Interview mit Prof. Karl Albrecht Schachtschneider über die EU-Verfassung’, posted on the web pages of BüSo, Bürgerrechtsbewegung Solidarität.
The interview contains a heading ‘Wiederkehr des Todesstrafe?’ (Return of the death penalty?), and Schachtschneider’s answer that Article II-62 of the Constitutional Treaty (and the Charter of Fundamental Rights) is untrue. His gives the explanations relating to the Charter as his reasons for two claims: 1) that there is no Constitutional protection of the right to life anymore in the case of war or imminent danger of war, and 2) that the death penalty is possible and will come.
***
Let us take a look at the EU position on the death penalty. Here is the political answer, the one which came out on top when I googled ‘EU death penalty’. The Delegation of the European Commission to the USA has a web page dedicated to ‘EU policy & action on the death penalty’. The following categorical statement can be found there:
“The European Union (EU) is opposed to the death penalty in all cases and has consistently espoused its universal abolition, working towards this goal.”
The web pages contain 73 links to various policy documents, action in the United Nations, action on US death row cases, European and international agreements and policy makers as well as archived documents relating to earlier years.
See for yourself:
http://www.eurunion.org/legislat/deathpenalty/deathpenhome.htm
Fairly conclusive for a normal person, one would think: The European Union is against capital punishment.
***
The motives and working ethics of bloggers like the above are such that I do not want to begin dissecting them.
But how is it possible that the EU institutions and the governments of the member states let such wildfires start and spread without actively, visibly and instantly rebutting malicious rumours devoid of factual basis?
Ralf Grahn
EU TFEU: Remaining restrictions on services
In many cases the Treaty of Lisbon does little else than renumbering existing treaty provisions for coming consolidated versions of the revised Treaty on European Union and the renamed Treaty on the Functioning of the European Union.
***
The Treaty of Lisbon (ToL) presents no specific amendments concerning Article 54 of the Treaty establishing the European Community (TEC). Cf. points 59 and 60 in OJ 17.12.2007 C 306/55.
***
The latest consolidated version of the existing treaties gives us the wording of Article 54 TEC in force (OJ 29.12.2006 C 321 E/63):
Article 54 TEC
As long as restrictions on freedom to provide services have not been abolished, each Member State shall apply such restrictions without distinction on grounds of nationality or residence to all persons providing services within the meaning of the first paragraph of Article 49.
***
There seem to be no horizontal amendments, but the renumbering of the provision has to be checked, and we add the location of the Article within the Treaty on the Functioning of the European Union (TFEU):
Part Three ‘Policies and internal actions of the Union’
Title III (renumbered Title IV TFEU) ‘Free movement of persons, services and capital’
Chapter 3 ‘Services’
Article 54 TFEU (ToL), renumbered Article 61 TFEU
As long as restrictions on freedom to provide services have not been abolished, each Member State shall apply such restrictions without distinction on grounds of nationality or residence to all persons providing services within the meaning of the first paragraph of Article 49 [ToL, renumbered Article 56 TFEU].
***
Article III-34 of the draft Treaty establishing a Constitution for Europe added an ‘of’, and the referral was different, but otherwise it was a clone of the current TEC Article (OJ 18.7.2003 C 169/33).
***
In Article III-149 of the Treaty establishing a Constitution for Europe ‘each Member State’ became ‘the Member States’ but the IGC 2004 accepted the ‘of’ added by the European Convention before ‘residence’. Naturally, the referral was different.
***
We can conclude that, from the TEC to the Lisbon Treaty, no substantial change has been proposed to the provision.
***
We see that restrictions on grounds of nationality or of residence are forbidden, which narrows the scope of legitimate remaining restrictions considerably. In addition, new restrictions would seem to go against the aim to achieve free movement of services.
The ‘sunset feeling’ evoked by Article 54 TEC has not inspired writers unduly, which a quick look at a number of textbooks validated. Müller-Graff explains why, in Streinz, EUV/EGV Vertrag über die Europäische Union und Vertrag zur Gründung der Europäischen Gemeinschaft (Verlag C.H.Beck, München 2003; page 742):
„Sein Regelungsgehalt wird von Art. 49 EGV mitumfasst, so dass er gestrichen werden könnte.“
In other words, Article 54 ToL (and 61 TFEU) is redundant, due to Article 49 TEC (and ToL, renumbered Article 56 TFEU).
This serves as a reminder, if one is needed, of how focused on institutional questions the later cycles of treaty reform have been and of how technical most of the modifications of the ‘Community’ policy areas have been, or to use the term preferred for the future ‘policies and internal actions of the Union’.
Ralf Grahn
***
The Treaty of Lisbon (ToL) presents no specific amendments concerning Article 54 of the Treaty establishing the European Community (TEC). Cf. points 59 and 60 in OJ 17.12.2007 C 306/55.
***
The latest consolidated version of the existing treaties gives us the wording of Article 54 TEC in force (OJ 29.12.2006 C 321 E/63):
Article 54 TEC
As long as restrictions on freedom to provide services have not been abolished, each Member State shall apply such restrictions without distinction on grounds of nationality or residence to all persons providing services within the meaning of the first paragraph of Article 49.
***
There seem to be no horizontal amendments, but the renumbering of the provision has to be checked, and we add the location of the Article within the Treaty on the Functioning of the European Union (TFEU):
Part Three ‘Policies and internal actions of the Union’
Title III (renumbered Title IV TFEU) ‘Free movement of persons, services and capital’
Chapter 3 ‘Services’
Article 54 TFEU (ToL), renumbered Article 61 TFEU
As long as restrictions on freedom to provide services have not been abolished, each Member State shall apply such restrictions without distinction on grounds of nationality or residence to all persons providing services within the meaning of the first paragraph of Article 49 [ToL, renumbered Article 56 TFEU].
***
Article III-34 of the draft Treaty establishing a Constitution for Europe added an ‘of’, and the referral was different, but otherwise it was a clone of the current TEC Article (OJ 18.7.2003 C 169/33).
***
In Article III-149 of the Treaty establishing a Constitution for Europe ‘each Member State’ became ‘the Member States’ but the IGC 2004 accepted the ‘of’ added by the European Convention before ‘residence’. Naturally, the referral was different.
***
We can conclude that, from the TEC to the Lisbon Treaty, no substantial change has been proposed to the provision.
***
We see that restrictions on grounds of nationality or of residence are forbidden, which narrows the scope of legitimate remaining restrictions considerably. In addition, new restrictions would seem to go against the aim to achieve free movement of services.
The ‘sunset feeling’ evoked by Article 54 TEC has not inspired writers unduly, which a quick look at a number of textbooks validated. Müller-Graff explains why, in Streinz, EUV/EGV Vertrag über die Europäische Union und Vertrag zur Gründung der Europäischen Gemeinschaft (Verlag C.H.Beck, München 2003; page 742):
„Sein Regelungsgehalt wird von Art. 49 EGV mitumfasst, so dass er gestrichen werden könnte.“
In other words, Article 54 ToL (and 61 TFEU) is redundant, due to Article 49 TEC (and ToL, renumbered Article 56 TFEU).
This serves as a reminder, if one is needed, of how focused on institutional questions the later cycles of treaty reform have been and of how technical most of the modifications of the ‘Community’ policy areas have been, or to use the term preferred for the future ‘policies and internal actions of the Union’.
Ralf Grahn
Readable Lisbon Treaty: Four months gone and missing
The European Convention worked openly and its draft Constitution was published immediately. The IGC 2004 operated behind the closed doors, and it took one and a half month to publish its full results, the Constitutional Treaty, in the Official Journal.
The Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community was signed at Lisbon 13 December 2007. Today is 16 April 2008, so more than four months have passed without readable, consolidated versions published in each of the now 23 treaty languages.
***
The Lisbon Treaty is arguably the most important EC and EU document since 2004. If all legislation including proposals should be in the public domain, in a full and readable form – including tennis rackets aboard planes or not – the founding treaties are the one EU example above all others, long before they enter into force.
The Treaty of Lisbon is the document intended to define our rights and obligations as EU citizens, and of the member state(s) we are citizens of and where we live. We have a legitimate interest to know in full how these relationships are being defined and what the needed ratifications entail.
The Council, I am sorry to say, took the opposite view. Without any public justification it decided to postpone the publication of the consolidated versions until the Lisbon Treaty would have entered into force. If precedents were needed, one would have to return to an almost forgotten era, the Treaty of Nice, signed in 2001, and a world where web publishing was in its early stages.
***
Luckily, some private individuals, organisations, parliaments and even governments broke the conspiracy of silence by publishing consolidated versions of the Lisbon Treaty. Among these were some of the governments rumoured to be among the opponents of publishing in the Council.
But until this day, only a part of the citizens of the European Union have access to a (fairly accurate) consolidated version of the Lisbon Treaty in their own language.
***
Finally, there was good news. The Council must have relented. The following information was posted on the Commission’s web site dedicated to the Lisbon Treaty:
“A consolidated version of the Treaty will be published on 15 April on the web and on 9 May on paper version.”
***
Finally, I thought, and 9 April 2008 posted what I reckoned to be the final update on different consolidated versions ‘Consolidated EU Lisbon Treaty Update April 2008’, as a tribute to those who have produced and published consolidations and as a last reminder to those who needed one during the final week before official publication.
***
Yesterday was to be the great day for EU citizens.
I scoured every imaginable EU web site in search of the consolidations without finding any new mention (including any explanation for the delay).
Later in the day, I queried Europe direct by e-mail, but received no immediate answer.
***
A short while ago I checked the Official Journal of 16 April 2008 as well as the Council’s web site. A new day is beginning, but still nothing.
***
In addition to all the lofty principles of closeness, openness, transparency and democracy that permeate the Lisbon Treaty, it is ironic that the same governments who have intentionally delayed the publication of readable treaties are the ones who have declared the importance of national translations in regional and minority languages.
For a good laugh, let us turn to Declaration number 16 contained in the Final Act of the Treaty of Lisbon (OJ 17.12.2007 C 306/254):
16. Declaration on Article 53(2) of the Treaty on European Union
The Conference considers that the possibility of producing translations of the Treaties in the languages mentioned in Article 53(2) contributes to fulfilling the objective of respecting the Union's rich cultural and linguistic diversity as set forth in the fourth subparagraph of Article 2(3). In this context, the Conference confirms the attachment of the Union to the cultural diversity of Europe and the special attention it will continue to pay to these and other languages.
The Conference recommends that those Member States wishing to avail themselves of the possibility recognised in Article 53(2) communicate to the Council, within six months from the date of the signature of the Treaty of Lisbon, the language or languages into which translations of the Treaties will be made.
***
Yes, how about the official languages to start with?
***
The only thing citizens and bloggers can do is to keep the repeated failures of the Council in public view and the intergovernmental machinations in distrust.
Ralf Grahn
The Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community was signed at Lisbon 13 December 2007. Today is 16 April 2008, so more than four months have passed without readable, consolidated versions published in each of the now 23 treaty languages.
***
The Lisbon Treaty is arguably the most important EC and EU document since 2004. If all legislation including proposals should be in the public domain, in a full and readable form – including tennis rackets aboard planes or not – the founding treaties are the one EU example above all others, long before they enter into force.
The Treaty of Lisbon is the document intended to define our rights and obligations as EU citizens, and of the member state(s) we are citizens of and where we live. We have a legitimate interest to know in full how these relationships are being defined and what the needed ratifications entail.
The Council, I am sorry to say, took the opposite view. Without any public justification it decided to postpone the publication of the consolidated versions until the Lisbon Treaty would have entered into force. If precedents were needed, one would have to return to an almost forgotten era, the Treaty of Nice, signed in 2001, and a world where web publishing was in its early stages.
***
Luckily, some private individuals, organisations, parliaments and even governments broke the conspiracy of silence by publishing consolidated versions of the Lisbon Treaty. Among these were some of the governments rumoured to be among the opponents of publishing in the Council.
But until this day, only a part of the citizens of the European Union have access to a (fairly accurate) consolidated version of the Lisbon Treaty in their own language.
***
Finally, there was good news. The Council must have relented. The following information was posted on the Commission’s web site dedicated to the Lisbon Treaty:
“A consolidated version of the Treaty will be published on 15 April on the web and on 9 May on paper version.”
***
Finally, I thought, and 9 April 2008 posted what I reckoned to be the final update on different consolidated versions ‘Consolidated EU Lisbon Treaty Update April 2008’, as a tribute to those who have produced and published consolidations and as a last reminder to those who needed one during the final week before official publication.
***
Yesterday was to be the great day for EU citizens.
I scoured every imaginable EU web site in search of the consolidations without finding any new mention (including any explanation for the delay).
Later in the day, I queried Europe direct by e-mail, but received no immediate answer.
***
A short while ago I checked the Official Journal of 16 April 2008 as well as the Council’s web site. A new day is beginning, but still nothing.
***
In addition to all the lofty principles of closeness, openness, transparency and democracy that permeate the Lisbon Treaty, it is ironic that the same governments who have intentionally delayed the publication of readable treaties are the ones who have declared the importance of national translations in regional and minority languages.
For a good laugh, let us turn to Declaration number 16 contained in the Final Act of the Treaty of Lisbon (OJ 17.12.2007 C 306/254):
16. Declaration on Article 53(2) of the Treaty on European Union
The Conference considers that the possibility of producing translations of the Treaties in the languages mentioned in Article 53(2) contributes to fulfilling the objective of respecting the Union's rich cultural and linguistic diversity as set forth in the fourth subparagraph of Article 2(3). In this context, the Conference confirms the attachment of the Union to the cultural diversity of Europe and the special attention it will continue to pay to these and other languages.
The Conference recommends that those Member States wishing to avail themselves of the possibility recognised in Article 53(2) communicate to the Council, within six months from the date of the signature of the Treaty of Lisbon, the language or languages into which translations of the Treaties will be made.
***
Yes, how about the official languages to start with?
***
The only thing citizens and bloggers can do is to keep the repeated failures of the Council in public view and the intergovernmental machinations in distrust.
Ralf Grahn
Tuesday, 15 April 2008
Lisbon Treaty updates: Promising and promised
Promising: In addition to the first consolidation of the Lisbon Treaty and the later updated and complete consolidated version of the Treaty on European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU), Peadar ó Broin of the Institute of International and European Affairs (IIEA), in Dublin, has kindly informed me that there is a new, consolidated, highlighted and annotated version of the Treaty of Lisbon in English and a consolidated Irish Gaelic version.
They have not been published on the Institute’s web pages yet, but try asking for a copy by e-mail.
***
Promised: The clock is ticking this Tuesday 15 April 2008, but I have yet to find information from any EU institution consistent with the following information posted on the Commission’s web page on the Treaty of Lisbon:
“A consolidated version of the Treaty will be published on 15 April on the web and on 9 May on paper version.”
Where is it?
Ralf Grahn
They have not been published on the Institute’s web pages yet, but try asking for a copy by e-mail.
***
Promised: The clock is ticking this Tuesday 15 April 2008, but I have yet to find information from any EU institution consistent with the following information posted on the Commission’s web page on the Treaty of Lisbon:
“A consolidated version of the Treaty will be published on 15 April on the web and on 9 May on paper version.”
Where is it?
Ralf Grahn
EU TFEU: Liberalisation of services
A wishy-washy provision on further liberalisation of services is amended by the Treaty of Lisbon of the European Union (EU), but the interpretations range from nothing to the contradictory.
A riddle wrapped in a mystery inside an enigma?
***
The Treaty of Lisbon (ToL) amends Article 53 of the Treaty establishing the European Community (TEC) in the following way (OJ 17.12.2007 C 306/55):
59) In Article 53, the words ‘declare their readiness to’ shall be replaced by ‘shall endeavour to’.
***
As usual, the surrounding words have to be found in the latest consolidated version of the current treaties (OJ 29.12.2006 C 321 E/63):
Article 53 TEC
The Member States declare their readiness to undertake the liberalisation of services beyond the extent required by the directives issued pursuant to Article 52(1), if their general economic situation and the situation of the economic sector concerned so permit.
To this end, the Commission shall make recommendations to the Member States concerned.
***
In order to arrive at a new consolidated version of the provision according to the Lisbon Treaty, there are a few things to do: The specific amendment has to be inserted, possible horizontal amendments checked (none in this case) and the renumbering of the Article and the referral executed (Tables of equivalences) plus the location of the provision indicated for ease of comprehension:
Part Three ‘Policies and internal actions of the Union’
Title III (renumbered Title IV TFEU) ‘Free movement of persons, services and capital’
Chapter 3 ‘Services’
Article 53 TFEU (ToL), renumbered Article 60 TFEU
The Member States shall endeavour to undertake the liberalisation of services beyond the extent required by the directives issued pursuant to Article 52(1) [ToL, renumbered Article 59(1) TFEU], if their general economic situation and the situation of the economic sector concerned so permit.
To this end, the Commission shall make recommendations to the Member States concerned.
***
Article III-33 of the draft Treaty establishing a Constitution for Europe was essentially the same as the current TEC provision. In other words, the member states ‘declare their readiness’ (OJ 18.7.2003 C 169/33).
***
Article III-148 of the Treaty establishing a Constitution for Europe contained a small, but perhaps significant change of wording. Therefore, we present the proposed text here (OJ 16.12.2004 C 310/64):
Article III-148 Constitution
The Member States shall endeavour to undertake liberalisation of services beyond the extent required by the European framework laws adopted pursuant to Article III-147(1), if their general economic situation and the situation of the economic sector concerned so permit.
To this end, the Commission shall make recommendations to the Member States concerned.
***
We see that there has been one change with some potential meaning between the current TEC and the Lisbon Treaty. It occurred during the IGC 2004 and appeared in the Constitutional Treaty.
‘The Member States declare their readiness’ became ‘The Member States shall endeavour’ to undertake liberalisation of services beyond the extent required.
Since the change of wording was express, it presumably has some meaning. What could it be?
***
The UK Foreign and Commonwealth Office (FCO) offers the following interpretation of Article 60 TFEU (Article 53 ToL) in ‘A comparative table of the current EC and EU treaties as amended by the Treaty of Lisbon’ (Command paper 7311; page 9):
“In substance the same as Article 53 TEC.”
The UK House of Commons Library Research Paper 07/86 (6 December 2007) presents the following view (page 31):
“Article 53 states that Member States “shall endeavour to” instead of “declare their readiness to” liberalise services beyond the requirements of directives adopted under Article 51 if they are able to. The stronger terminology is in line with the general requirement for solidarity.”
Our following example is the German ratification bill, „Gesetzentwurf der Bundesregierung: Entwurf eines Gesetzes zum Vertrag von Lissabon vom 13. Dezember 2007, Drucksache 16/8300, 28.02.2008“ (page 173):
Nummer 59: Artikel 53 [Artikel 60] wird geändert und an den Wortlaut von Artikel III-148 Ver- fassungsvertrag angepasst. Er verstärkt den Appell an die Mitgliedstaaten, bei der Liberalisierung des Dienstleistungsverkehrs innerhalb der Union über den durch Richtlinien festgelegten Min- deststandard hinauszugehen, indem die bisherige Erklä- rung der Bereitschaft durch eine Bemühenszusage ersetzt wird.“
Until now, we have one neutral assessment (FCO), and two interpretations underlining the stronger appeal to liberalisation of services: First, the UK Commons Library, although I fail to grasp the reference to solidarity, and second, the German federal government.
I tried to scan the IIEA Consolidated and annotated version of the treaties, the Swedish government’s presentation of the Lisbon Treaty (Ds 2007:48) and the ratification bill of the government of Finland (HE 23/2008 vp in Finnish, RP 23/2008 rd in Swedish) as well as the following documents of the French Assemblée nationale, namely Projet de loi (6 février 2008) and Rapport d’information No 562 Tome 1 & Tome 2 (8 janvier 2008), plus a number of comments on the Constitutional Treaty without finding any qualitative assessment.
***
Contrast this with the description and assessment of Klemens H. Fischer in “Der Vertrag von Lissabon” (Nomos, Stämpfli and Verlag Österreich; page 221):
„Diese Änderung ist substantiell und als Rückschritt zur Rechtslage de lege lata einzustufen. Bislang mussten die Mitgliedstaaten bereit sein, über das Ausmaβ der Liberalisierung der Dienstleistungen, zu dem sie aufgrund der Richtlinien gemäβ Artikel 52 Absatz 1 AEUV verpflichtet sind, hinauszugehen. Diese ohnehin bereits sehr schwach formulierte Pflicht der Mitgliedstaaten wird nunmehr noch weicher gefasst, indem sie sich in Hinkunft lediglich bemühen müssen. Diese Änderung geht auf eine Forderung Frankreichs zurück, das damit erreichte, dass diese Bestimmung und die daraus erwachsende Pflicht realiter nicht mehr justitiabel ist.
Konsequentermaβen hätte auf Grund dieser Änderung die gesamte Bestimmung gestrichen werden können, da ohnehin nur mehr die Fiktion der Pflicht aufrechterhalten wird.“
***
The provision expresses a fairly weak wish, anyhow, so it is no wonder that it has not drawn that much attention. But, somewhere during the IGC 2004 and IGC 2007 decisions have been made on express amendments. Surely with some intention?
For me, the allotted time is at an end, so I leave the rest to you during my time-out. .
Ralf Grahn
A riddle wrapped in a mystery inside an enigma?
***
The Treaty of Lisbon (ToL) amends Article 53 of the Treaty establishing the European Community (TEC) in the following way (OJ 17.12.2007 C 306/55):
59) In Article 53, the words ‘declare their readiness to’ shall be replaced by ‘shall endeavour to’.
***
As usual, the surrounding words have to be found in the latest consolidated version of the current treaties (OJ 29.12.2006 C 321 E/63):
Article 53 TEC
The Member States declare their readiness to undertake the liberalisation of services beyond the extent required by the directives issued pursuant to Article 52(1), if their general economic situation and the situation of the economic sector concerned so permit.
To this end, the Commission shall make recommendations to the Member States concerned.
***
In order to arrive at a new consolidated version of the provision according to the Lisbon Treaty, there are a few things to do: The specific amendment has to be inserted, possible horizontal amendments checked (none in this case) and the renumbering of the Article and the referral executed (Tables of equivalences) plus the location of the provision indicated for ease of comprehension:
Part Three ‘Policies and internal actions of the Union’
Title III (renumbered Title IV TFEU) ‘Free movement of persons, services and capital’
Chapter 3 ‘Services’
Article 53 TFEU (ToL), renumbered Article 60 TFEU
The Member States shall endeavour to undertake the liberalisation of services beyond the extent required by the directives issued pursuant to Article 52(1) [ToL, renumbered Article 59(1) TFEU], if their general economic situation and the situation of the economic sector concerned so permit.
To this end, the Commission shall make recommendations to the Member States concerned.
***
Article III-33 of the draft Treaty establishing a Constitution for Europe was essentially the same as the current TEC provision. In other words, the member states ‘declare their readiness’ (OJ 18.7.2003 C 169/33).
***
Article III-148 of the Treaty establishing a Constitution for Europe contained a small, but perhaps significant change of wording. Therefore, we present the proposed text here (OJ 16.12.2004 C 310/64):
Article III-148 Constitution
The Member States shall endeavour to undertake liberalisation of services beyond the extent required by the European framework laws adopted pursuant to Article III-147(1), if their general economic situation and the situation of the economic sector concerned so permit.
To this end, the Commission shall make recommendations to the Member States concerned.
***
We see that there has been one change with some potential meaning between the current TEC and the Lisbon Treaty. It occurred during the IGC 2004 and appeared in the Constitutional Treaty.
‘The Member States declare their readiness’ became ‘The Member States shall endeavour’ to undertake liberalisation of services beyond the extent required.
Since the change of wording was express, it presumably has some meaning. What could it be?
***
The UK Foreign and Commonwealth Office (FCO) offers the following interpretation of Article 60 TFEU (Article 53 ToL) in ‘A comparative table of the current EC and EU treaties as amended by the Treaty of Lisbon’ (Command paper 7311; page 9):
“In substance the same as Article 53 TEC.”
The UK House of Commons Library Research Paper 07/86 (6 December 2007) presents the following view (page 31):
“Article 53 states that Member States “shall endeavour to” instead of “declare their readiness to” liberalise services beyond the requirements of directives adopted under Article 51 if they are able to. The stronger terminology is in line with the general requirement for solidarity.”
Our following example is the German ratification bill, „Gesetzentwurf der Bundesregierung: Entwurf eines Gesetzes zum Vertrag von Lissabon vom 13. Dezember 2007, Drucksache 16/8300, 28.02.2008“ (page 173):
Nummer 59: Artikel 53 [Artikel 60] wird geändert und an den Wortlaut von Artikel III-148 Ver- fassungsvertrag angepasst. Er verstärkt den Appell an die Mitgliedstaaten, bei der Liberalisierung des Dienstleistungsverkehrs innerhalb der Union über den durch Richtlinien festgelegten Min- deststandard hinauszugehen, indem die bisherige Erklä- rung der Bereitschaft durch eine Bemühenszusage ersetzt wird.“
Until now, we have one neutral assessment (FCO), and two interpretations underlining the stronger appeal to liberalisation of services: First, the UK Commons Library, although I fail to grasp the reference to solidarity, and second, the German federal government.
I tried to scan the IIEA Consolidated and annotated version of the treaties, the Swedish government’s presentation of the Lisbon Treaty (Ds 2007:48) and the ratification bill of the government of Finland (HE 23/2008 vp in Finnish, RP 23/2008 rd in Swedish) as well as the following documents of the French Assemblée nationale, namely Projet de loi (6 février 2008) and Rapport d’information No 562 Tome 1 & Tome 2 (8 janvier 2008), plus a number of comments on the Constitutional Treaty without finding any qualitative assessment.
***
Contrast this with the description and assessment of Klemens H. Fischer in “Der Vertrag von Lissabon” (Nomos, Stämpfli and Verlag Österreich; page 221):
„Diese Änderung ist substantiell und als Rückschritt zur Rechtslage de lege lata einzustufen. Bislang mussten die Mitgliedstaaten bereit sein, über das Ausmaβ der Liberalisierung der Dienstleistungen, zu dem sie aufgrund der Richtlinien gemäβ Artikel 52 Absatz 1 AEUV verpflichtet sind, hinauszugehen. Diese ohnehin bereits sehr schwach formulierte Pflicht der Mitgliedstaaten wird nunmehr noch weicher gefasst, indem sie sich in Hinkunft lediglich bemühen müssen. Diese Änderung geht auf eine Forderung Frankreichs zurück, das damit erreichte, dass diese Bestimmung und die daraus erwachsende Pflicht realiter nicht mehr justitiabel ist.
Konsequentermaβen hätte auf Grund dieser Änderung die gesamte Bestimmung gestrichen werden können, da ohnehin nur mehr die Fiktion der Pflicht aufrechterhalten wird.“
***
The provision expresses a fairly weak wish, anyhow, so it is no wonder that it has not drawn that much attention. But, somewhere during the IGC 2004 and IGC 2007 decisions have been made on express amendments. Surely with some intention?
For me, the allotted time is at an end, so I leave the rest to you during my time-out. .
Ralf Grahn
Monday, 14 April 2008
EU TFEU: Directives on specific services
The EU’s Treaty of Lisbon strengthens the role of the directly elected European Parliament by the extended use of the ‘ordinary legislative procedure’ (co-decision).
Article 52 of the Treaty establishing the European Community is one example of this, in the context of specific services. In practice, though, there are a number of reasons why the practical change is less than it seems in this specific case.
We follow the route of the current treaty, the draft Constitution, the Constitutional Treaty and the Lisbon Treaty to end up with a consolidated version of the Article as part of the Treaty on the Functioning of the European Union, although our progress is not chronological.
***
The Treaty of Lisbon (ToL) makes an amendment to Article 52 of the Treaty establishing the European Community (TEC). This is what the intergovernmental conference (IGC 2007) says in point 58 (OJ 17.12.2007 C 306/55):
58) In Article 52(1), the words ‘the Council shall, on a proposal from the Commission and after consulting the Economic and Social Committee and the European Parliament, issue’ shall be replaced by ‘the European Parliament and the Council, acting in accordance with the ordinary legislative procedure and after consulting the Economic and Social Committee, shall issue’.
***
The surrounding words are found in the latest consolidated version of the current treaties, the TEU and the TEC, in OJ 29.12.2006 C 321 E/63:
Article 52 TEC
1. In order to achieve the liberalisation of a specific service, the Council shall, on a proposal from the Commission and after consulting the Economic and Social Committee and the European Parliament, issue directives acting by a qualified majority.
2. As regards the directives referred to in paragraph 1, priority shall as a general rule be given to those services which directly affect production costs or the liberalisation of which helps to promote trade in goods.
***
There is one specific amendment and one horizontal amendment to be made, deleting ‘acting by a qualified majority’ according to point 2(d), but we add the renumbering of the Article and the location of the provision from the Tables of equivalences. This is what the Article should look like according to the Lisbon Treaty, where it forms part of the Treaty on the Functioning of the European Union (TFEU):
Part Three ‘Policies and internal actions of the Union’
Title III (renumbered Title IV) ‘Free movement of persons, services and capital’
Chapter 3 ‘Services’
Article 52 TFEU (ToL), renumbered Article 59 TFEU
1. In order to achieve the liberalisation of a specific service, the European Parliament and the Council, acting in accordance with the ordinary legislative procedure and after consulting the Economic and Social Committee, shall issue directives.
2. As regards the directives referred to in paragraph 1, priority shall as a general rule be given to those services which directly affect production costs or the liberalisation of which helps to promote trade in goods.
***
The corresponding provision in the draft Treaty establishing a Constitution for Europe was Article III-32 (OJ 18.7.2003 C 169/33):
Article III-32 Draft Constitution
1. A European framework law shall establish the measures in order to achieve the liberalisation of a specific service. It shall be adopted after consultation of the Economic and Social Committee.
2. As regards the European framework law referred to in paragraph 1, priority shall as a general rule be given to those services which directly affect production costs or the liberalisation of which helps to promote trade in goods.
***
The IGC 2004 took over the draft text with minor retouches in Article III-147 of the Treaty establishing a Constitution for Europe (OJ 16.12.2004 C 310/64):
Article III-147 Constitution
1. European framework laws shall establish measures to achieve the liberalisation of a specific
service. They shall be adopted after consultation of the Economic and Social Committee.
2. European framework laws referred to in paragraph 1 shall as a general rule give priority to those services which directly affect production costs or the liberalisation of which helps to promote trade in goods.
***
Between the current TEC and the proposed Lisbon Treaty there is one substantial amendment, namely that the ordinary legislative procedure (co-decision) shall apply to directives issued on this legal base. This change was introduced by the European Convention.
The UK Foreign and Commonwealth Office (FCO) correctly describes Article 59 TFEU (Article 52 ToL) in ‘A comparative table of the current EC and EU Treaties as amended by the Treaty of Lisbon’ (Command paper 7311; page 9):
“Draws on Article 52 TEC. QMV already applies, decision-making moves to co-decision.”
Because the new names for the legal instruments were scrapped by the IGC 2007 as part of the ‘constitutional concept’, the efforts by the European Convention and the IGC 2004 to introduce plainer language fell by the wayside.
***
In practice, the victory for the European Parliament is more numerical than actual, since most EC (EU) legislation on services has been based on other provisions. Thus, co-decision has been the norm.
The direct effect of treaty provisions on free movement and the limited scope of Article 52 TEC (specific services) have also diminished its importance as a legal base.
The loosely accorded priority given by Article 52(2) TEC to services affecting production costs or helping to promote trade in goods have been of minor significance.
Ralf Grahn
Article 52 of the Treaty establishing the European Community is one example of this, in the context of specific services. In practice, though, there are a number of reasons why the practical change is less than it seems in this specific case.
We follow the route of the current treaty, the draft Constitution, the Constitutional Treaty and the Lisbon Treaty to end up with a consolidated version of the Article as part of the Treaty on the Functioning of the European Union, although our progress is not chronological.
***
The Treaty of Lisbon (ToL) makes an amendment to Article 52 of the Treaty establishing the European Community (TEC). This is what the intergovernmental conference (IGC 2007) says in point 58 (OJ 17.12.2007 C 306/55):
58) In Article 52(1), the words ‘the Council shall, on a proposal from the Commission and after consulting the Economic and Social Committee and the European Parliament, issue’ shall be replaced by ‘the European Parliament and the Council, acting in accordance with the ordinary legislative procedure and after consulting the Economic and Social Committee, shall issue’.
***
The surrounding words are found in the latest consolidated version of the current treaties, the TEU and the TEC, in OJ 29.12.2006 C 321 E/63:
Article 52 TEC
1. In order to achieve the liberalisation of a specific service, the Council shall, on a proposal from the Commission and after consulting the Economic and Social Committee and the European Parliament, issue directives acting by a qualified majority.
2. As regards the directives referred to in paragraph 1, priority shall as a general rule be given to those services which directly affect production costs or the liberalisation of which helps to promote trade in goods.
***
There is one specific amendment and one horizontal amendment to be made, deleting ‘acting by a qualified majority’ according to point 2(d), but we add the renumbering of the Article and the location of the provision from the Tables of equivalences. This is what the Article should look like according to the Lisbon Treaty, where it forms part of the Treaty on the Functioning of the European Union (TFEU):
Part Three ‘Policies and internal actions of the Union’
Title III (renumbered Title IV) ‘Free movement of persons, services and capital’
Chapter 3 ‘Services’
Article 52 TFEU (ToL), renumbered Article 59 TFEU
1. In order to achieve the liberalisation of a specific service, the European Parliament and the Council, acting in accordance with the ordinary legislative procedure and after consulting the Economic and Social Committee, shall issue directives.
2. As regards the directives referred to in paragraph 1, priority shall as a general rule be given to those services which directly affect production costs or the liberalisation of which helps to promote trade in goods.
***
The corresponding provision in the draft Treaty establishing a Constitution for Europe was Article III-32 (OJ 18.7.2003 C 169/33):
Article III-32 Draft Constitution
1. A European framework law shall establish the measures in order to achieve the liberalisation of a specific service. It shall be adopted after consultation of the Economic and Social Committee.
2. As regards the European framework law referred to in paragraph 1, priority shall as a general rule be given to those services which directly affect production costs or the liberalisation of which helps to promote trade in goods.
***
The IGC 2004 took over the draft text with minor retouches in Article III-147 of the Treaty establishing a Constitution for Europe (OJ 16.12.2004 C 310/64):
Article III-147 Constitution
1. European framework laws shall establish measures to achieve the liberalisation of a specific
service. They shall be adopted after consultation of the Economic and Social Committee.
2. European framework laws referred to in paragraph 1 shall as a general rule give priority to those services which directly affect production costs or the liberalisation of which helps to promote trade in goods.
***
Between the current TEC and the proposed Lisbon Treaty there is one substantial amendment, namely that the ordinary legislative procedure (co-decision) shall apply to directives issued on this legal base. This change was introduced by the European Convention.
The UK Foreign and Commonwealth Office (FCO) correctly describes Article 59 TFEU (Article 52 ToL) in ‘A comparative table of the current EC and EU Treaties as amended by the Treaty of Lisbon’ (Command paper 7311; page 9):
“Draws on Article 52 TEC. QMV already applies, decision-making moves to co-decision.”
Because the new names for the legal instruments were scrapped by the IGC 2007 as part of the ‘constitutional concept’, the efforts by the European Convention and the IGC 2004 to introduce plainer language fell by the wayside.
***
In practice, the victory for the European Parliament is more numerical than actual, since most EC (EU) legislation on services has been based on other provisions. Thus, co-decision has been the norm.
The direct effect of treaty provisions on free movement and the limited scope of Article 52 TEC (specific services) have also diminished its importance as a legal base.
The loosely accorded priority given by Article 52(2) TEC to services affecting production costs or helping to promote trade in goods have been of minor significance.
Ralf Grahn
Sunday, 13 April 2008
EU TFEU: Transport, banking and insurance services
Important sectors of economic activity, such as transport, banking and insurance (financial services) are treated distinctly in the context of free movement of services within the European Community (European Union).
We look at the current Article 51 of the Treaty establishing the European Community and its position in the EU Treaty of Lisbon.
Further reading is suggested for readers interested in EU law and policies concerning the transport and financial services sectors.
***
The Treaty of Lisbon (ToL) makes no specific amendment to Article 51 of the Treaty establishing the European Community (TEC). Cf. point 57 and 58 in Official Journal (OJ) 17.12.2007 C 306/55.
***
The current Article 51 TEC is found in the latest consolidated version of the treaties, TEU and TEC, in OJ 29.12.2006 C 321 E/62:
Article 51 TEC
1. Freedom to provide services in the field of transport shall be governed by the provisions of the title relating to transport.
2. The liberalisation of banking and insurance services connected with movements of capital shall be effected in step with the liberalisation of movement of capital.
***
According to the Lisbon Treaty, the provision should look like this in the Treaty on the Functioning of the European Union (TFEU) when we add the location of the Article and the future renumbering from the Tables of equivalences (OJ 17.12.2007 C 306/207-208) and note that no horizontal amendments seem to apply (Cf. OJ 17.12.2007 C 306/41-44):
Part Three ‘Policies and internal actions of the Union’
Title III (renumbered Title IV) ‘Free movement of persons, services and capital’
Chapter 3 ‘Services’
Article 51 TFEU (ToL), renumbered Article 58 TFEU
1. Freedom to provide services in the field of transport shall be governed by the provisions of the title relating to transport.
2. The liberalisation of banking and insurance services connected with movements of capital shall be effected in step with the liberalisation of movement of capital.
***
The first paragraph of Article III-31 of the draft Treaty establishing a Constitution for Europe referred to the ‘Section’ instead of the ‘title’ relating to transport, but proposed no other change (OJ 18.7.2003 C 169/33).
***
Only the referral to ‘Section 7 of Chapter III’ relating to transport differed from the other versions in Article III-146 of the Treaty establishing a Constitution for Europe (OJ 16.12.2004 C 310/63).
***
In short, between Nice and Lisbon only technical adjustments have been proposed, boiling down to the renumbering effected by the Treaty of Lisbon.
***
Article 51 TEC and ToL, renumbered Article 58 TFEU, encompasses the principle of freedom to provide services in the field of transport, but excepts transport services from the scope of the general chapter on services (Chapter 3).
TEC Title V ‘Transport’ reigns as ‘lex specialis’, meaning the current Articles 70 to 80 TEC on the common transport policy.
This corresponds with Title V ‘Transport’, Articles 70 to 80 ToL, but after renumbering these provisions are found in Title VI ‘Transport’, Articles 90 to 100 TFEU.
***
Banking and insurance are treated differently. Liberalisation of these sectors is supposed to advance in step with measures to open up the capital markets.
The second paragraph refers to the current Chapter 4 ‘Capital and payments’, Articles 56 to 60 TEC.
The corresponding ToL chapter is Chapter 4 ‘Capital and payments’, Articles 56 to 59 (with Article 61h ToL being renumbered Article 75 TFEU and moved to the provisions on the area of freedom, security and justice).
In the consolidated Lisbon Treaty Chapter 4 ‘Capital and payments’ includes the Articles 63 to 66 TFEU.
***
The interested reader can move directly to the sector specific treaty provisions mentioned above. This series of blog posts is advancing one Article at a time, so we will look at these provisions in due time.
At this stage, some further reading is suggested for interested readers.
***
Transport
A general introduction to EU transport policies is offered through the links of the European Commission’s Transport home page:
http://ec.europa.eu/transport/index_en.html
The European Commission dedicates pages 76 to 83 of its ‘General Report on the Activities of the European Union 2007’ to transport with subheadings on rail transport, road transport, maritime transport, inland navigation, air transport, intermodal approach (Galileo), international developments and Trans-European transport networks (TEN-T).
The government of Sweden publishes yearly reports to the parliament (and the public) on the activities of the European institutions: the EU, the Council of Europe and the OSCE. The depth of the EU report ‘Regeringens skrivelse 2007/08: 85 Berättelse om verksamheten i Europeiska unionen under 2007’, published 6 March 2008, is fully comparable to that of the Commission.
Part 7 (Del 7 Transporter, elektroniska kommunikationer och energi) deals with transport policy from page 163 to 180.
***
Banking and insurance (financial services; capital and payments)
A starting point for EU policies on financial services is offered through the links on the Commission’s internal market web page ‘Financial Services – General Policy:
http://ec.europa.eu/internal_market/finances/index_en.htm
Under the heading ‘Freedom to provide services and freedom of establishment’ the European Commission deals with developments concerning financial services on pages 50 to 53 of its ‘General Report on the Activities of the European Union 2007’.
Part 6 on competitiveness (Del 6 Konkurrenskraftsfrågor) of the Swedish report on EU activities in 2007 includes Chapter 29 on the free movement of services and capital (29 Fri rörlighet för tjänster och kapital), from page 139 to 142.
The UK House of Lords European Union Committee’s report ‘Single Market: Wallflower of Dancing Partner? Inquiry into the European Commission’s Review of the Single Market, Volume I: Report (HL Paper 36-I, published 8 February 2008) dedicates Chapter 7 to financial services (page 32 to 37).
The starting point of this timely assessment was the Committee’s feeling of an area in which the lack of progress has been disappointing.
***
The separateness of transport services and the parallel introduction of measures concerning banking and insurance services (financial services) with liberalisation of capital markets is underlined by the fact that they are excluded from the scope of the general Services Directive, to be implemented by the member states before 28 December 2009.
See Article 1 ‘Subject matter’, Article 2 ‘Scope’ and Article 3 ‘Relationship with other provisions of Community law’ of Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market, OJ 27.12.2006 L 376, p. 36–68:
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2006:376:0036:0068:EN:PDF
The express exclusion of transport services follows from Article 2(2)(d) and of financial services, such as banking and insurance from Article 2(2)(b) of the general Services Directive.
Ralf Grahn
We look at the current Article 51 of the Treaty establishing the European Community and its position in the EU Treaty of Lisbon.
Further reading is suggested for readers interested in EU law and policies concerning the transport and financial services sectors.
***
The Treaty of Lisbon (ToL) makes no specific amendment to Article 51 of the Treaty establishing the European Community (TEC). Cf. point 57 and 58 in Official Journal (OJ) 17.12.2007 C 306/55.
***
The current Article 51 TEC is found in the latest consolidated version of the treaties, TEU and TEC, in OJ 29.12.2006 C 321 E/62:
Article 51 TEC
1. Freedom to provide services in the field of transport shall be governed by the provisions of the title relating to transport.
2. The liberalisation of banking and insurance services connected with movements of capital shall be effected in step with the liberalisation of movement of capital.
***
According to the Lisbon Treaty, the provision should look like this in the Treaty on the Functioning of the European Union (TFEU) when we add the location of the Article and the future renumbering from the Tables of equivalences (OJ 17.12.2007 C 306/207-208) and note that no horizontal amendments seem to apply (Cf. OJ 17.12.2007 C 306/41-44):
Part Three ‘Policies and internal actions of the Union’
Title III (renumbered Title IV) ‘Free movement of persons, services and capital’
Chapter 3 ‘Services’
Article 51 TFEU (ToL), renumbered Article 58 TFEU
1. Freedom to provide services in the field of transport shall be governed by the provisions of the title relating to transport.
2. The liberalisation of banking and insurance services connected with movements of capital shall be effected in step with the liberalisation of movement of capital.
***
The first paragraph of Article III-31 of the draft Treaty establishing a Constitution for Europe referred to the ‘Section’ instead of the ‘title’ relating to transport, but proposed no other change (OJ 18.7.2003 C 169/33).
***
Only the referral to ‘Section 7 of Chapter III’ relating to transport differed from the other versions in Article III-146 of the Treaty establishing a Constitution for Europe (OJ 16.12.2004 C 310/63).
***
In short, between Nice and Lisbon only technical adjustments have been proposed, boiling down to the renumbering effected by the Treaty of Lisbon.
***
Article 51 TEC and ToL, renumbered Article 58 TFEU, encompasses the principle of freedom to provide services in the field of transport, but excepts transport services from the scope of the general chapter on services (Chapter 3).
TEC Title V ‘Transport’ reigns as ‘lex specialis’, meaning the current Articles 70 to 80 TEC on the common transport policy.
This corresponds with Title V ‘Transport’, Articles 70 to 80 ToL, but after renumbering these provisions are found in Title VI ‘Transport’, Articles 90 to 100 TFEU.
***
Banking and insurance are treated differently. Liberalisation of these sectors is supposed to advance in step with measures to open up the capital markets.
The second paragraph refers to the current Chapter 4 ‘Capital and payments’, Articles 56 to 60 TEC.
The corresponding ToL chapter is Chapter 4 ‘Capital and payments’, Articles 56 to 59 (with Article 61h ToL being renumbered Article 75 TFEU and moved to the provisions on the area of freedom, security and justice).
In the consolidated Lisbon Treaty Chapter 4 ‘Capital and payments’ includes the Articles 63 to 66 TFEU.
***
The interested reader can move directly to the sector specific treaty provisions mentioned above. This series of blog posts is advancing one Article at a time, so we will look at these provisions in due time.
At this stage, some further reading is suggested for interested readers.
***
Transport
A general introduction to EU transport policies is offered through the links of the European Commission’s Transport home page:
http://ec.europa.eu/transport/index_en.html
The European Commission dedicates pages 76 to 83 of its ‘General Report on the Activities of the European Union 2007’ to transport with subheadings on rail transport, road transport, maritime transport, inland navigation, air transport, intermodal approach (Galileo), international developments and Trans-European transport networks (TEN-T).
The government of Sweden publishes yearly reports to the parliament (and the public) on the activities of the European institutions: the EU, the Council of Europe and the OSCE. The depth of the EU report ‘Regeringens skrivelse 2007/08: 85 Berättelse om verksamheten i Europeiska unionen under 2007’, published 6 March 2008, is fully comparable to that of the Commission.
Part 7 (Del 7 Transporter, elektroniska kommunikationer och energi) deals with transport policy from page 163 to 180.
***
Banking and insurance (financial services; capital and payments)
A starting point for EU policies on financial services is offered through the links on the Commission’s internal market web page ‘Financial Services – General Policy:
http://ec.europa.eu/internal_market/finances/index_en.htm
Under the heading ‘Freedom to provide services and freedom of establishment’ the European Commission deals with developments concerning financial services on pages 50 to 53 of its ‘General Report on the Activities of the European Union 2007’.
Part 6 on competitiveness (Del 6 Konkurrenskraftsfrågor) of the Swedish report on EU activities in 2007 includes Chapter 29 on the free movement of services and capital (29 Fri rörlighet för tjänster och kapital), from page 139 to 142.
The UK House of Lords European Union Committee’s report ‘Single Market: Wallflower of Dancing Partner? Inquiry into the European Commission’s Review of the Single Market, Volume I: Report (HL Paper 36-I, published 8 February 2008) dedicates Chapter 7 to financial services (page 32 to 37).
The starting point of this timely assessment was the Committee’s feeling of an area in which the lack of progress has been disappointing.
***
The separateness of transport services and the parallel introduction of measures concerning banking and insurance services (financial services) with liberalisation of capital markets is underlined by the fact that they are excluded from the scope of the general Services Directive, to be implemented by the member states before 28 December 2009.
See Article 1 ‘Subject matter’, Article 2 ‘Scope’ and Article 3 ‘Relationship with other provisions of Community law’ of Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market, OJ 27.12.2006 L 376, p. 36–68:
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2006:376:0036:0068:EN:PDF
The express exclusion of transport services follows from Article 2(2)(d) and of financial services, such as banking and insurance from Article 2(2)(b) of the general Services Directive.
Ralf Grahn
Saturday, 12 April 2008
EU Lisbon Treaty ratification bill Finland
The government bill on ratification of the Treaty of Lisbon has been published on the web.
Officially, it goes under the name: Hallituksen esitys Eduskunnalle Euroopan unionista tehdyn sopimuksen ja Euroopan yhteisön perustamissopimuksen muuttamisesta tehdyn Lissabonin sopimuksen hyväksymisestä ja laiksi sen lainsäädännön alaan kuuluvien määräysten voimaansaattamisesta (HE 23/2008 vp)
The 572 page packet can be downloaded in Finnish here:
http://www.finlex.fi/fi/esitykset/he/2008/20080023.pdf
The Swedish version is called: Regeringens proposition till Riksdagen med förslag om godkännande av Lissabonfördraget om ändring av fördraget om Europeiska unionen och fördraget om upprättandet av Europeiska gemenskapen och till lag om sättande i kraft av de bestämmelser i fördraget som hör till området för lagstiftningen (RP 23/2008 rd)
The Swedish language version is found here:
http://www.finlex.fi/sv/esitykset/he/2008/20080023.pdf
Prime minister Matti Vanhanen’s speech can be found in Finnish:
http://www.vn.fi/ajankohtaista/puheet/puhe/fi.jsp?oid=225798
Vanhanen’s speech on Lisbon Treaty ratification in Swedish here:
http://www.vn.fi/ajankohtaista/puheet/puhe/fi.jsp?oid=225817
Ralf Grahn
Officially, it goes under the name: Hallituksen esitys Eduskunnalle Euroopan unionista tehdyn sopimuksen ja Euroopan yhteisön perustamissopimuksen muuttamisesta tehdyn Lissabonin sopimuksen hyväksymisestä ja laiksi sen lainsäädännön alaan kuuluvien määräysten voimaansaattamisesta (HE 23/2008 vp)
The 572 page packet can be downloaded in Finnish here:
http://www.finlex.fi/fi/esitykset/he/2008/20080023.pdf
The Swedish version is called: Regeringens proposition till Riksdagen med förslag om godkännande av Lissabonfördraget om ändring av fördraget om Europeiska unionen och fördraget om upprättandet av Europeiska gemenskapen och till lag om sättande i kraft av de bestämmelser i fördraget som hör till området för lagstiftningen (RP 23/2008 rd)
The Swedish language version is found here:
http://www.finlex.fi/sv/esitykset/he/2008/20080023.pdf
Prime minister Matti Vanhanen’s speech can be found in Finnish:
http://www.vn.fi/ajankohtaista/puheet/puhe/fi.jsp?oid=225798
Vanhanen’s speech on Lisbon Treaty ratification in Swedish here:
http://www.vn.fi/ajankohtaista/puheet/puhe/fi.jsp?oid=225817
Ralf Grahn
EU TFEU: Scope of services
The European Court of Justice (ECJ) has done much to give meaning to the treaty provisions regarding the right to provide (and to receive) cross-border services within the European Community (European Union).
By preserving the treaty rules, the Treaty of Lisbon upholds the benefits of the internal market to both service providers and receivers of services.
We look at a short reform history of Article 50 of the Treaty establishing the European Community, with examples of services, and we suggest further reading for the ones who want to explore the context.
***
The Treaty of Lisbon (ToL) makes the briefest mention of Article 50 of the Treaty establishing the European Community (TEC). The only express amendment, in OJ 17.12.2007 C 306/55 is the following:
57) In Article 50, third paragraph, the words ‘the State’ shall be replaced by ‘the Member State’.
***
The surrounding provision is found in the latest consolidated version of the treaties, the current TEU and TEC, in the Official Journal (OJ 29.12.2006 C 321 E/62):
Article 50 TEC
Services shall be considered to be ‘services’ within the meaning of this Treaty where they are normally provided for remuneration, in so far as they are not governed by the provisions relating to freedom of movement for goods, capital and persons.
‘Services’ shall in particular include:
(a) activities of an industrial character;
(b) activities of a commercial character;
(c) activities of craftsmen;
(d) activities of the professions.
Without prejudice to the provisions of the Chapter relating to the right of establishment, the person providing a service may, in order to do so, temporarily pursue his activity in the State where the service is provided, under the same conditions as are imposed by that State on its own nationals.
***
If the Lisbon Treaty enters into force, the provision should exist in the following context, with the express and horizontal amendments as well as renumbering concerning the Treaty on the Functioning of the European Union (TFEU):
Part Three ‘Policies and internal actions of the Union’
Title III (renumbered Title IV) ‘Free movement of persons, services and capital’
Chapter 3 ‘Services’
Article 50 TFEU (ToL), renumbered Article 57 TFEU
Services shall be considered to be ‘services’ within the meaning of the Treaties where they are normally provided for remuneration, in so far as they are not governed by the provisions relating to freedom of movement for goods, capital and persons.
‘Services’ shall in particular include:
(a) activities of an industrial character;
(b) activities of a commercial character;
(c) activities of craftsmen;
(d) activities of the professions.
Without prejudice to the provisions of the Chapter relating to the right of establishment, the person providing a service may, in order to do so, temporarily pursue his activity in the Member State where the service is provided, under the same conditions as are imposed by that State on its own nationals.
***
Article III-30 of the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/33) and Article III-145 of the Treaty establishing a Constitution for Europe (OJ 16.12.2004 C 310/63) differ so little from the current and future provision that it is there is no need to repeat them here.
***
The UK FCO’s ‘A comparative table of the current EC and EU treaties as amended by the Treaty of Lisbon’ (Command paper 7311) concludes, quite correctly, that Article 57 TFEU (Article 50 ToL) is:
“In substance the same as Article 50 TEC.”
***
Yesterday’s post ‘EU TFEU: Freedom to provide services’ looked at the drafting history of Article 49 TEC and ToL (renumbered Article 56 TFEU) and suggested a number of web resources for further study.
Today, we recommend a book text on the substantive EU law on services:
Josephine Steiner, Lorna Woods and Christian Twigg-Flesner: EU Law Ninth Edition (Oxford University Press, 2006), Chapter 22 ‘Freedom to provide services; freedom to receive services’ (page 468 to 493), which describes the evolution of ECJ jurisprudence on services.
With the marginal changes of the Lisbon Treaty (not yet in force) readers can rely on the text concerning the treaty provisions, but since publication the so called Services Directive was finally enacted.
Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market, OJ 27.12.2006 L 376, p. 36–68:
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2006:376:0036:0068:EN:PDF
The Service Directive, addressed to the member states, has entered into force, but they have time until 28 December 2009 to transpose its provisions.
The Service Directive is much less distinguished by the quality of its contents than by the collective sigh of relief generated by the fact that it was enacted at all, having become one of the spectres haunting the French referendum debate on the Constitutional Treaty in 2005.
For the sake of fairness, a more upbeat view is presented by the UK Department for Business, Enterprise and Regulatory Reform (BERR) in its 5 November 2007 consultation paper ‘Implementing the Services Directive, Consultation Document on Implementing the EU Services Directive in the UK’, where Gareth Thomas MP, Parliamentary Under Secretary of State for Trade and Consumer Affairs, said (page 3):
“I believe the Service Directive is a genuinely market-opening measure that will bring real benefits to the UK.”
See:
http://www.berr.gov.uk/files/file42207.pdf
Ralf Grahn
By preserving the treaty rules, the Treaty of Lisbon upholds the benefits of the internal market to both service providers and receivers of services.
We look at a short reform history of Article 50 of the Treaty establishing the European Community, with examples of services, and we suggest further reading for the ones who want to explore the context.
***
The Treaty of Lisbon (ToL) makes the briefest mention of Article 50 of the Treaty establishing the European Community (TEC). The only express amendment, in OJ 17.12.2007 C 306/55 is the following:
57) In Article 50, third paragraph, the words ‘the State’ shall be replaced by ‘the Member State’.
***
The surrounding provision is found in the latest consolidated version of the treaties, the current TEU and TEC, in the Official Journal (OJ 29.12.2006 C 321 E/62):
Article 50 TEC
Services shall be considered to be ‘services’ within the meaning of this Treaty where they are normally provided for remuneration, in so far as they are not governed by the provisions relating to freedom of movement for goods, capital and persons.
‘Services’ shall in particular include:
(a) activities of an industrial character;
(b) activities of a commercial character;
(c) activities of craftsmen;
(d) activities of the professions.
Without prejudice to the provisions of the Chapter relating to the right of establishment, the person providing a service may, in order to do so, temporarily pursue his activity in the State where the service is provided, under the same conditions as are imposed by that State on its own nationals.
***
If the Lisbon Treaty enters into force, the provision should exist in the following context, with the express and horizontal amendments as well as renumbering concerning the Treaty on the Functioning of the European Union (TFEU):
Part Three ‘Policies and internal actions of the Union’
Title III (renumbered Title IV) ‘Free movement of persons, services and capital’
Chapter 3 ‘Services’
Article 50 TFEU (ToL), renumbered Article 57 TFEU
Services shall be considered to be ‘services’ within the meaning of the Treaties where they are normally provided for remuneration, in so far as they are not governed by the provisions relating to freedom of movement for goods, capital and persons.
‘Services’ shall in particular include:
(a) activities of an industrial character;
(b) activities of a commercial character;
(c) activities of craftsmen;
(d) activities of the professions.
Without prejudice to the provisions of the Chapter relating to the right of establishment, the person providing a service may, in order to do so, temporarily pursue his activity in the Member State where the service is provided, under the same conditions as are imposed by that State on its own nationals.
***
Article III-30 of the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/33) and Article III-145 of the Treaty establishing a Constitution for Europe (OJ 16.12.2004 C 310/63) differ so little from the current and future provision that it is there is no need to repeat them here.
***
The UK FCO’s ‘A comparative table of the current EC and EU treaties as amended by the Treaty of Lisbon’ (Command paper 7311) concludes, quite correctly, that Article 57 TFEU (Article 50 ToL) is:
“In substance the same as Article 50 TEC.”
***
Yesterday’s post ‘EU TFEU: Freedom to provide services’ looked at the drafting history of Article 49 TEC and ToL (renumbered Article 56 TFEU) and suggested a number of web resources for further study.
Today, we recommend a book text on the substantive EU law on services:
Josephine Steiner, Lorna Woods and Christian Twigg-Flesner: EU Law Ninth Edition (Oxford University Press, 2006), Chapter 22 ‘Freedom to provide services; freedom to receive services’ (page 468 to 493), which describes the evolution of ECJ jurisprudence on services.
With the marginal changes of the Lisbon Treaty (not yet in force) readers can rely on the text concerning the treaty provisions, but since publication the so called Services Directive was finally enacted.
Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market, OJ 27.12.2006 L 376, p. 36–68:
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2006:376:0036:0068:EN:PDF
The Service Directive, addressed to the member states, has entered into force, but they have time until 28 December 2009 to transpose its provisions.
The Service Directive is much less distinguished by the quality of its contents than by the collective sigh of relief generated by the fact that it was enacted at all, having become one of the spectres haunting the French referendum debate on the Constitutional Treaty in 2005.
For the sake of fairness, a more upbeat view is presented by the UK Department for Business, Enterprise and Regulatory Reform (BERR) in its 5 November 2007 consultation paper ‘Implementing the Services Directive, Consultation Document on Implementing the EU Services Directive in the UK’, where Gareth Thomas MP, Parliamentary Under Secretary of State for Trade and Consumer Affairs, said (page 3):
“I believe the Service Directive is a genuinely market-opening measure that will bring real benefits to the UK.”
See:
http://www.berr.gov.uk/files/file42207.pdf
Ralf Grahn
Friday, 11 April 2008
EU TFEU: Freedom to provide services
Services represent between 60 and 70 per cent of economic activity within the single market of the European Community (European Union), and the free movement of services is one of the four fundamental market freedoms of the internal market. But actually achieving a free flow of services is proving to be a continuing endeavour for the European Commission and the European Court of Justice, as witnessed by the laborious birth of new legislation and the abundance of infringement procedures.
The Treaty of Lisbon preserves the treaty level provision opening up the Chapter on Services in the Treaty on the Functioning of the European Union, and extends co-decision to measures aimed at third country nationals.
We look at the different stages of the treaty reform process, and we list resources for further reading regarding the freedom to provide services.
***
Arriving at Article 49 of the Treaty establishing the European Community (TEC), the intergovernmental conference (IGC) made the following amendments in the Treaty of Lisbon (OJ 17.12.2007 C 306/55):
SERVICES
56) Article 49 shall be amended as follows:
(a) in the first paragraph, the words ‘State of the Community’ shall be replaced by ‘Member State’;
(b) in the second paragraph, the words ‘The Council may, acting by a qualified majority on a proposal from the Commission, extend’ shall be replaced by ‘The European Parliament and the Council, acting in accordance with the ordinary legislative procedure, may extend’.
***
The current Article 49 TEC forms the basis, so we turn to the latest consolidated version of the treaties, in OJ 29.12.2006 C 321 E/62:
CHAPTER 3
SERVICES
Article 49 TEC
Within the framework of the provisions set out below, restrictions on freedom to provide services within the Community shall be prohibited in respect of nationals of Member States who are established in a State of the Community other than that of the person for whom the services are intended.
The Council may, acting by a qualified majority on a proposal from the Commission, extend the provisions of the Chapter to nationals of a third country who provide services and who are established within the Community.
***
We noticed from the TEC provision that we entered a new Chapter, and the Tables of equivalences confirm that the same holds true concerning the Treaty of Lisbon (ToL) and the Treaty on the Functioning of the European Union (TFEU).
We make the few retouches agreed by the IGC 2007 expressly or horizontally to present the consolidated version of the provision:
Part Three ‘Policies and internal actions of the Union’
Title III (renumbered Title IV) ‘Free movement of persons, services and capital’
Chapter 3 ‘Services’
Article 49 TFEU (ToL), renumbered Article 56 TFEU
Within the framework of the provisions set out below, restrictions on freedom to provide services within the Union shall be prohibited in respect of nationals of Member States who are established in a Member State other than that of the person for whom the services are intended.
The European Parliament and the Council, acting in accordance with the ordinary legislative procedure, may extend the provisions of the Chapter to nationals of a third country who provide services and who are established within the Union.
***
The European Convention extended ‘European laws or framework laws’ (the ordinary legislative procedure) to the second paragraph of Article III-29 of the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/33):
Subsection 3
Freedom to provide services
Article III-29 Draft Constitution
Within the framework of this Subsection, restrictions on freedom to provide services within the Union shall be prohibited in respect of nationals of Member States who are established in a Member State other than that of the person for whom the services are intended.
European laws or framework laws may extend this Subsection to nationals of a third country who provide services and who are established within the Union.
***
The Treaty establishing a Constitution for Europe made a small change to the wording in the second paragraph of Article III-144, ‘to service providers who are nationals of a third state and’, but nothing else.
***
We can see that the one substantive amendment was proposed by the European Convention.
Readers who enjoy a telegraphic style can, in this and other cases, turn to the Foreign and Commonwealth Office’s (FCO) ‘A comparative table of the current EC and EU Treaties as amended by the Treaty of Lisbon’ (Cm 7311). The text on Article 56 TFEU (49 ToL) sums it up neatly (page 9):
“Draws on Article 49 TEC. QMV already applies, decision-making moves to co-decision regarding extension to third country nationals.”
***
Students of European Community (European Union) law have their texts, cases and materials to turn to, and they are available to everyone, but let us think of a general reader, for instance a person or business providing services, who wants to find relevant information on the web.
Here are a few pointers, taking into account that some readers may be interested in general principles, while others would prefer sector-specific information.
The Commission’s Internal Market web page ‘General principles: Freedom to provide services / Freedom of establishment’ offers a succinct introduction:
http://ec.europa.eu/internal_market/services/principles_en.htm
There is a link to a ‘Guide to the Case Law of the European Court of Justice on Articles 49 et seq. EC Treaty: Freedom to Provide Services’, dated 1 January 2001, but with an update promised shortly.
Despite the late date of the last update of the page mentioned above (28 January 2008), we feel the need for fresh information. The web page ‘A Single Market for Services’ (last update 28 January 2008) offers a little bit more on the importance of services and secondary legislation:
http://ec.europa.eu/internal_market/top_layer/index_19_en.htm
But the main attraction of this web page is its collection of links to thematic pages starting to offer more specific answers:
General principles, leading on to infringement procedures 2005 – 2008:
http://ec.europa.eu/internal_market/services/infringements/index_en.htm
Services Directive, while just an opening page, it contains links to specific questions and the related Posting of workers directive:
http://ec.europa.eu/internal_market/services/services-dir/index_en.htm
Transparency of regulations, includes information on standards in the area of services:
http://ec.europa.eu/internal_market/services/transparency/index_en.htm
Professional qualifications, opens up more specific links on the new system for recognition of professional qualifications and to sources of practical information and problem solving:
http://ec.europa.eu/internal_market/qualifications/index_en.htm
Financial services, deals with three major areas of economic activity – banking, insurance and securities – through links leading to more detailed information:
http://ec.europa.eu/internal_market/top_layer/index_24_en.htm
Postal services, a short introductory page with a host of links:
http://ec.europa.eu/internal_market/post/index_en.htm
Business-related services, follows the pattern of general information and links to further information:
http://ec.europa.eu/internal_market/services/brs/index_en.htm
E-commerce, basic information and additional links on electronic commerce:
http://ec.europa.eu/internal_market/e-commerce/index_en.htm
Media, where the opening page ‘Media in the information society’ has a few additional links:
http://ec.europa.eu/internal_market/media/index_en.htm
Gambling, a highly lucrative and therefore contested area of services, where governments at all levels and private service providers vie for the money willingly offered by a gullible public. The Commission page contains links to a study on gambling and a list of infringement procedures:
http://ec.europa.eu/internal_market/services/gambling_en.htm
Pharmacy services, contains links to a study on pharmacy, but you may remember that for instance Sweden has been forced to re-think its state monopoly following an ECJ ruling:
http://ec.europa.eu/internal_market/services/pharmacy_en.htm
Services of general interest, links to a web site dedicated to services of general interest and to a few more related web pages:
http://ec.europa.eu/internal_market/top_layer/index_41_en.htm
***
All in all, I would say that the European Commission is not bad at presenting information about the different policy areas of the European Community (European Union), and many of the web pages are fairly well updated, but it is not always easy to find the specific information you need, and you may need both time and patience to find your way in the maze.
Ralf Grahn
The Treaty of Lisbon preserves the treaty level provision opening up the Chapter on Services in the Treaty on the Functioning of the European Union, and extends co-decision to measures aimed at third country nationals.
We look at the different stages of the treaty reform process, and we list resources for further reading regarding the freedom to provide services.
***
Arriving at Article 49 of the Treaty establishing the European Community (TEC), the intergovernmental conference (IGC) made the following amendments in the Treaty of Lisbon (OJ 17.12.2007 C 306/55):
SERVICES
56) Article 49 shall be amended as follows:
(a) in the first paragraph, the words ‘State of the Community’ shall be replaced by ‘Member State’;
(b) in the second paragraph, the words ‘The Council may, acting by a qualified majority on a proposal from the Commission, extend’ shall be replaced by ‘The European Parliament and the Council, acting in accordance with the ordinary legislative procedure, may extend’.
***
The current Article 49 TEC forms the basis, so we turn to the latest consolidated version of the treaties, in OJ 29.12.2006 C 321 E/62:
CHAPTER 3
SERVICES
Article 49 TEC
Within the framework of the provisions set out below, restrictions on freedom to provide services within the Community shall be prohibited in respect of nationals of Member States who are established in a State of the Community other than that of the person for whom the services are intended.
The Council may, acting by a qualified majority on a proposal from the Commission, extend the provisions of the Chapter to nationals of a third country who provide services and who are established within the Community.
***
We noticed from the TEC provision that we entered a new Chapter, and the Tables of equivalences confirm that the same holds true concerning the Treaty of Lisbon (ToL) and the Treaty on the Functioning of the European Union (TFEU).
We make the few retouches agreed by the IGC 2007 expressly or horizontally to present the consolidated version of the provision:
Part Three ‘Policies and internal actions of the Union’
Title III (renumbered Title IV) ‘Free movement of persons, services and capital’
Chapter 3 ‘Services’
Article 49 TFEU (ToL), renumbered Article 56 TFEU
Within the framework of the provisions set out below, restrictions on freedom to provide services within the Union shall be prohibited in respect of nationals of Member States who are established in a Member State other than that of the person for whom the services are intended.
The European Parliament and the Council, acting in accordance with the ordinary legislative procedure, may extend the provisions of the Chapter to nationals of a third country who provide services and who are established within the Union.
***
The European Convention extended ‘European laws or framework laws’ (the ordinary legislative procedure) to the second paragraph of Article III-29 of the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/33):
Subsection 3
Freedom to provide services
Article III-29 Draft Constitution
Within the framework of this Subsection, restrictions on freedom to provide services within the Union shall be prohibited in respect of nationals of Member States who are established in a Member State other than that of the person for whom the services are intended.
European laws or framework laws may extend this Subsection to nationals of a third country who provide services and who are established within the Union.
***
The Treaty establishing a Constitution for Europe made a small change to the wording in the second paragraph of Article III-144, ‘to service providers who are nationals of a third state and’, but nothing else.
***
We can see that the one substantive amendment was proposed by the European Convention.
Readers who enjoy a telegraphic style can, in this and other cases, turn to the Foreign and Commonwealth Office’s (FCO) ‘A comparative table of the current EC and EU Treaties as amended by the Treaty of Lisbon’ (Cm 7311). The text on Article 56 TFEU (49 ToL) sums it up neatly (page 9):
“Draws on Article 49 TEC. QMV already applies, decision-making moves to co-decision regarding extension to third country nationals.”
***
Students of European Community (European Union) law have their texts, cases and materials to turn to, and they are available to everyone, but let us think of a general reader, for instance a person or business providing services, who wants to find relevant information on the web.
Here are a few pointers, taking into account that some readers may be interested in general principles, while others would prefer sector-specific information.
The Commission’s Internal Market web page ‘General principles: Freedom to provide services / Freedom of establishment’ offers a succinct introduction:
http://ec.europa.eu/internal_market/services/principles_en.htm
There is a link to a ‘Guide to the Case Law of the European Court of Justice on Articles 49 et seq. EC Treaty: Freedom to Provide Services’, dated 1 January 2001, but with an update promised shortly.
Despite the late date of the last update of the page mentioned above (28 January 2008), we feel the need for fresh information. The web page ‘A Single Market for Services’ (last update 28 January 2008) offers a little bit more on the importance of services and secondary legislation:
http://ec.europa.eu/internal_market/top_layer/index_19_en.htm
But the main attraction of this web page is its collection of links to thematic pages starting to offer more specific answers:
General principles, leading on to infringement procedures 2005 – 2008:
http://ec.europa.eu/internal_market/services/infringements/index_en.htm
Services Directive, while just an opening page, it contains links to specific questions and the related Posting of workers directive:
http://ec.europa.eu/internal_market/services/services-dir/index_en.htm
Transparency of regulations, includes information on standards in the area of services:
http://ec.europa.eu/internal_market/services/transparency/index_en.htm
Professional qualifications, opens up more specific links on the new system for recognition of professional qualifications and to sources of practical information and problem solving:
http://ec.europa.eu/internal_market/qualifications/index_en.htm
Financial services, deals with three major areas of economic activity – banking, insurance and securities – through links leading to more detailed information:
http://ec.europa.eu/internal_market/top_layer/index_24_en.htm
Postal services, a short introductory page with a host of links:
http://ec.europa.eu/internal_market/post/index_en.htm
Business-related services, follows the pattern of general information and links to further information:
http://ec.europa.eu/internal_market/services/brs/index_en.htm
E-commerce, basic information and additional links on electronic commerce:
http://ec.europa.eu/internal_market/e-commerce/index_en.htm
Media, where the opening page ‘Media in the information society’ has a few additional links:
http://ec.europa.eu/internal_market/media/index_en.htm
Gambling, a highly lucrative and therefore contested area of services, where governments at all levels and private service providers vie for the money willingly offered by a gullible public. The Commission page contains links to a study on gambling and a list of infringement procedures:
http://ec.europa.eu/internal_market/services/gambling_en.htm
Pharmacy services, contains links to a study on pharmacy, but you may remember that for instance Sweden has been forced to re-think its state monopoly following an ECJ ruling:
http://ec.europa.eu/internal_market/services/pharmacy_en.htm
Services of general interest, links to a web site dedicated to services of general interest and to a few more related web pages:
http://ec.europa.eu/internal_market/top_layer/index_41_en.htm
***
All in all, I would say that the European Commission is not bad at presenting information about the different policy areas of the European Community (European Union), and many of the web pages are fairly well updated, but it is not always easy to find the specific information you need, and you may need both time and patience to find your way in the maze.
Ralf Grahn
Thursday, 10 April 2008
EU TFEU: Equality for investors
The EU Treaty of Lisbon accords capital investors from other member states equal treatment with nationals of the state of the company or firm. This declaratory or clarifying provision, Article 294 of the Treaty establishing the European Community, is moved into a more logical context within the Treaty of Lisbon, but without added substance.
***
In the Treaty of Lisbon (ToL), point 55, the intergovernmental conference (IGC 2007) decided to shift the location of Article 294 of the Treaty establishing the European Community (TEC). See Official Journal, OJ, 17.12.2007 C 306/55:
55) An Article 48a shall be inserted, with the wording of Article 294.
***
Our first task is to look up Article 294 TEC, in the latest consolidated version of the treaties, TEU and TEC, in OJ 29.12.2006 C 321 E/173. We notice that the Article is located in TEC Part Six ‘General and final provisions’, and the contents are the following:
Article 294 TEC
Member States shall accord nationals of the other Member States the same treatment as their own nationals as regards participation in the capital of companies or firms within the meaning of Article 48, without prejudice to the application of the other provisions of this Treaty.
***
There is no express amendment of the wording and the only horizontal amendment is to replace ‘this Treaty’ by ‘the Treaties’ according to point 2(b)) in the Lisbon Treaty. We check the numbering in the original Lisbon Treaty and the renumbering for the coming consolidated versions of the provision and the referral, and we add the location of the provision within the treaty for ease of reading. The treaty itself is renamed the Treaty on the Functioning of the European Union (TFEU), and here is what the provision should look like:
Part Three ‘Policies and internal actions of the Union’
Title III (renumbered Title IV) ‘Free movement of persons, services and capital’
Chapter 2 ‘Right of establishment’
Article 48a TFEU (ToL), renumbered Article 55 TFEU
Member States shall accord nationals of the other Member States the same treatment as their own nationals as regards participation in the capital of companies or firms within the meaning of Article 48 [ToL, renumbered Article 54 TFEU], without prejudice to the application of the other provisions of the Treaties.
***
The European Convention initiated the tidying up exercise by placing the provision at the end of Subsection 2 ‘Freedom of establishment’, as Article III-28. Naturally, the preceding Article of the draft Treaty establishing a Constitution for Europe referred to was numbered differently and it spoke of the other provisions of the Constitution, but the contents remained the same (OJ 18.7.2003 C 169/33).
***
The IGC 2004 followed the lead of the draft Constitution in every aspect save one. The Treaty establishing a Constitution for Europe limited its referral to the second paragraph of the preceding Article (OJ 16.12.2004 C 310/63):
Article III-143 Constitution
Member States shall accord nationals of the other Member States the same treatment as their own nationals as regards participation in the capital of companies or firms within the meaning of the second paragraph of Article III-142, without prejudice to the application of the other provisions of the Constitution.
***
In other words, the IGC 2007 followed the lead of the European Convention in finding more amenable surroundings for the Article, but by taking over the wording of the present TEC it did not follow the Constitutional Treaty in referring only to the second paragraph of the preceding Article.
***
We can easily agree with the conclusion in the ‘Comparative table of the current EC and EU Treaties as amended by the Treaty of Lisbon (Cm 7311; page 8) about Article 55 TFEU (Article 48a ToL): In substance the same as Article 294 TEC.
But we would like to offer a few hints to the readers who want to know what the present (and future) provision might mean in practice.
Not much, it seems. The principle of equal treatment for capital investors follows from other treaty provisions, so the Article is only declaratory. I quote Rudolf Streinz, EUV/EGV, Vertrag über die Europäische Union und Vertrag zur Gründung der Europäischen Gemeinschaft (Verlag C.H. Beck, München 2003; page 2434):
„Art. 294 EGV hat heute keine praktische Bedeutung mehr. Bestenfalls kann der Vorschrift klarstellende Bedeutung zukommen, dass nicht nur die Gründung und Leitung von Unternehmen (vgl. Art. 43 EGV), sondern auch das Halten einer Beteiligung unter die Freiheitsberechtigungen des Vertrages fallen. In seinem persönlichen und sachlichen Anwendungsbereich ist Art. 294 EGV aber subsidiär gegenüber den Grundfreiheiten. Die dem sachlichen Anwendungsbereich nach relevante Niederlassungsfreiheit und die Kapitalverkehrsfreiheit gehen zudem über den Gewährleistungsinhalt des Art. 294 EGV hinaus, weil sie nicht nur Diskriminierungen nach der Staatsangehörigkeit, sondern jegliche Beschränkung verbieten.“
In other words, other provisions on free movement cater for this and more. In due time, we are going to look at the provisions with relevance.
Ralf Grahn
***
In the Treaty of Lisbon (ToL), point 55, the intergovernmental conference (IGC 2007) decided to shift the location of Article 294 of the Treaty establishing the European Community (TEC). See Official Journal, OJ, 17.12.2007 C 306/55:
55) An Article 48a shall be inserted, with the wording of Article 294.
***
Our first task is to look up Article 294 TEC, in the latest consolidated version of the treaties, TEU and TEC, in OJ 29.12.2006 C 321 E/173. We notice that the Article is located in TEC Part Six ‘General and final provisions’, and the contents are the following:
Article 294 TEC
Member States shall accord nationals of the other Member States the same treatment as their own nationals as regards participation in the capital of companies or firms within the meaning of Article 48, without prejudice to the application of the other provisions of this Treaty.
***
There is no express amendment of the wording and the only horizontal amendment is to replace ‘this Treaty’ by ‘the Treaties’ according to point 2(b)) in the Lisbon Treaty. We check the numbering in the original Lisbon Treaty and the renumbering for the coming consolidated versions of the provision and the referral, and we add the location of the provision within the treaty for ease of reading. The treaty itself is renamed the Treaty on the Functioning of the European Union (TFEU), and here is what the provision should look like:
Part Three ‘Policies and internal actions of the Union’
Title III (renumbered Title IV) ‘Free movement of persons, services and capital’
Chapter 2 ‘Right of establishment’
Article 48a TFEU (ToL), renumbered Article 55 TFEU
Member States shall accord nationals of the other Member States the same treatment as their own nationals as regards participation in the capital of companies or firms within the meaning of Article 48 [ToL, renumbered Article 54 TFEU], without prejudice to the application of the other provisions of the Treaties.
***
The European Convention initiated the tidying up exercise by placing the provision at the end of Subsection 2 ‘Freedom of establishment’, as Article III-28. Naturally, the preceding Article of the draft Treaty establishing a Constitution for Europe referred to was numbered differently and it spoke of the other provisions of the Constitution, but the contents remained the same (OJ 18.7.2003 C 169/33).
***
The IGC 2004 followed the lead of the draft Constitution in every aspect save one. The Treaty establishing a Constitution for Europe limited its referral to the second paragraph of the preceding Article (OJ 16.12.2004 C 310/63):
Article III-143 Constitution
Member States shall accord nationals of the other Member States the same treatment as their own nationals as regards participation in the capital of companies or firms within the meaning of the second paragraph of Article III-142, without prejudice to the application of the other provisions of the Constitution.
***
In other words, the IGC 2007 followed the lead of the European Convention in finding more amenable surroundings for the Article, but by taking over the wording of the present TEC it did not follow the Constitutional Treaty in referring only to the second paragraph of the preceding Article.
***
We can easily agree with the conclusion in the ‘Comparative table of the current EC and EU Treaties as amended by the Treaty of Lisbon (Cm 7311; page 8) about Article 55 TFEU (Article 48a ToL): In substance the same as Article 294 TEC.
But we would like to offer a few hints to the readers who want to know what the present (and future) provision might mean in practice.
Not much, it seems. The principle of equal treatment for capital investors follows from other treaty provisions, so the Article is only declaratory. I quote Rudolf Streinz, EUV/EGV, Vertrag über die Europäische Union und Vertrag zur Gründung der Europäischen Gemeinschaft (Verlag C.H. Beck, München 2003; page 2434):
„Art. 294 EGV hat heute keine praktische Bedeutung mehr. Bestenfalls kann der Vorschrift klarstellende Bedeutung zukommen, dass nicht nur die Gründung und Leitung von Unternehmen (vgl. Art. 43 EGV), sondern auch das Halten einer Beteiligung unter die Freiheitsberechtigungen des Vertrages fallen. In seinem persönlichen und sachlichen Anwendungsbereich ist Art. 294 EGV aber subsidiär gegenüber den Grundfreiheiten. Die dem sachlichen Anwendungsbereich nach relevante Niederlassungsfreiheit und die Kapitalverkehrsfreiheit gehen zudem über den Gewährleistungsinhalt des Art. 294 EGV hinaus, weil sie nicht nur Diskriminierungen nach der Staatsangehörigkeit, sondern jegliche Beschränkung verbieten.“
In other words, other provisions on free movement cater for this and more. In due time, we are going to look at the provisions with relevance.
Ralf Grahn
Wednesday, 9 April 2008
Consolidated EU Lisbon Treaty Update April 2008
In a short while consolidated versions of the EU’s Treaty of Lisbon are going to be published, with web publication 15 April 2008 followed by book versions 9 May 2008 (Europe day), presumably in 23 treaty languages.
The Council has made a wise decision by relinquishing its absurd and counter-productive opposition to readable treaties, but its marketing of this new-found openness could have been more vigorous and transparent.
The Commission 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
Margot Wallström, at least, highlighted the importance of readable, consolidated versions of the Lisbon Treaty, both the IIEA’s and the coming ‘official’ version, when she spoke to the Irish Institute of European Affairs in Brussels, 7 April 2008:
http://europa.eu/rapid/pressReleasesAction.do?reference=SPEECH/08/180&format=HTML&aged=0&language=EN&guiLanguage=en
One small point where Wallström was a bit too selective, in my opinion, concerned the publication of consolidations:
The latest treaty to have entered into force is the Treaty of Nice, signed in 2001. Outside the Council web communications have advanced considerably since then.
And the draft Constitution and the Constitutional Treaty, which never entered into force, were quickly published (and they were already readable, ‘consolidated’ treaties).
***
The Lisbon Treaty is arguably the most important European Union document since 2004
As a tribute to those individuals and organisations who have served the public by preparing and publishing consolidated versions in a considerable number of EU languages, I want to publish a list of the consolidations of the Lisbon Treaty I am aware of, often thanks to the help of kind readers.
***
The languages are 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
The government and Europe Information, of the Ministry for Foreign Affairs, has promised a consolidated version of the Lisbon Reform Treaty, in Finnish and Swedish by mid April, which coincides with the publishing of all web versions by the Council.
I have not noticed if the Finnish government intends to do anything beyond the general Council plans.
***
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
By the way, the site is worth following because of its keen interest on availability of EU sources and the evolution of web informatics.
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.
Christine Kaddous and Fabrice Picod
Traité sur l’Union européenne / Traité sur le fonctionnement de l’Union européenneecueil de textes (Published 18 February 2008) Staempfli SA (Berne), Bruylant (Bruxelles), L.G.D.J. (Paris) 342 pages, CHF 59.-, 43 euros, ISBN 978-3-7272-9144-9
A complete consolidation in French.
***
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.
Zukunft Europa
Just a short while ago Tünde commented on an old post that there is another German consolidated version of the Treaties on:
http://www.zukunfteuropa.at/site/5895/default.aspx
As far as I understand, Klemens H. Fischer has allowed Zukunft Europa to make his consolidation available to the public on the web.
***
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 worth reading.
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
Go to the new Sieps 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 published a handy pocket version of the Treaty of Lisbon in Swedish. Having received my own copy, I am happy to announce 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.
http://www.sns.se
***
I am most grateful, if you want to share your knowledge about the Treaty of Lisbon as well as EU law and politics generally with me and other EU citizens: books and resources, such as official documents from the member states’ governments and parliaments, scholarly assessments and popular literature, plus information on the ratification processes.
Ralf Grahn
The Council has made a wise decision by relinquishing its absurd and counter-productive opposition to readable treaties, but its marketing of this new-found openness could have been more vigorous and transparent.
The Commission 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
Margot Wallström, at least, highlighted the importance of readable, consolidated versions of the Lisbon Treaty, both the IIEA’s and the coming ‘official’ version, when she spoke to the Irish Institute of European Affairs in Brussels, 7 April 2008:
http://europa.eu/rapid/pressReleasesAction.do?reference=SPEECH/08/180&format=HTML&aged=0&language=EN&guiLanguage=en
One small point where Wallström was a bit too selective, in my opinion, concerned the publication of consolidations:
The latest treaty to have entered into force is the Treaty of Nice, signed in 2001. Outside the Council web communications have advanced considerably since then.
And the draft Constitution and the Constitutional Treaty, which never entered into force, were quickly published (and they were already readable, ‘consolidated’ treaties).
***
The Lisbon Treaty is arguably the most important European Union document since 2004
As a tribute to those individuals and organisations who have served the public by preparing and publishing consolidated versions in a considerable number of EU languages, I want to publish a list of the consolidations of the Lisbon Treaty I am aware of, often thanks to the help of kind readers.
***
The languages are 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
The government and Europe Information, of the Ministry for Foreign Affairs, has promised a consolidated version of the Lisbon Reform Treaty, in Finnish and Swedish by mid April, which coincides with the publishing of all web versions by the Council.
I have not noticed if the Finnish government intends to do anything beyond the general Council plans.
***
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
By the way, the site is worth following because of its keen interest on availability of EU sources and the evolution of web informatics.
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.
Christine Kaddous and Fabrice Picod
Traité sur l’Union européenne / Traité sur le fonctionnement de l’Union européenneecueil de textes (Published 18 February 2008) Staempfli SA (Berne), Bruylant (Bruxelles), L.G.D.J. (Paris) 342 pages, CHF 59.-, 43 euros, ISBN 978-3-7272-9144-9
A complete consolidation in French.
***
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.
Zukunft Europa
Just a short while ago Tünde commented on an old post that there is another German consolidated version of the Treaties on:
http://www.zukunfteuropa.at/site/5895/default.aspx
As far as I understand, Klemens H. Fischer has allowed Zukunft Europa to make his consolidation available to the public on the web.
***
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 worth reading.
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
Go to the new Sieps 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 published a handy pocket version of the Treaty of Lisbon in Swedish. Having received my own copy, I am happy to announce 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.
http://www.sns.se
***
I am most grateful, if you want to share your knowledge about the Treaty of Lisbon as well as EU law and politics generally with me and other EU citizens: 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: Right of establishment for companies and firms
It looks quite harmless: Companies and firms are offered the same freedom of establishment as natural persons within the European Community (European Union).
News and debate tend to focus on (unexpected) change, but the EU’s Treaty of Lisbon is as important for what it preserves, like the equal treatment of commercial companies.
First, we look at the treaty reform cycle from the current Treaty establishing the European Community, via the draft Constitution and the Constitutional Treaty to the Lisbon Treaty. Then, we give a few hints on further reading, which show that seemingly boring and inoffensive provisions are anything but that from the viewpoint of enterprises and tax authorities.
***
When we reach Article 48 of the Treaty establishing the European Community (TEC), we see that the intergovernmental conference (IGC 2007) makes no express amendment in the Treaty of Lisbon (ToL) to what is to become the Treaty on the Functioning of the European Union (TFEU). Cf. Official Journal, OJ 17.12.2007 C 306/55.
***
We find Article 48 TEC in force in the latest consolidated version of the treaties, TEU and TEC, OJ 29.12.2006 C 321 E/61:
Article 48 TEC
Companies or firms formed in accordance with the law of a Member State and having their registered office, central administration or principal place of business within the Community shall, for the purposes of this Chapter, be treated in the same way as natural persons who are nationals of Member States.
‘Companies or firms’ means companies or firms constituted under civil or commercial law, including cooperative societies, and other legal persons governed by public or private law, save for those which are non-profit-making.
***
There is no express amendment and only one horizontal one (‘Community’ replaced by ‘Union’ according to point 2(a)) in the Lisbon Treaty. We check the numbering in the original Lisbon Treaty and the renumbering for the coming consolidated versions, and we add the location of the provision within the treaty for ease of reading. Here is the ‘new’ Article:
Part Three ‘Policies and internal actions of the Union’
Title III (renumbered Title IV) ‘Free movement of persons, services and capital’
Chapter 2 ‘Right of establishment’
Article 48 TFEU (ToL), renumbered Article 54 TFEU
Companies or firms formed in accordance with the law of a Member State and having their registered office, central administration or principal place of business within the Union shall, for the purposes of this Chapter, be treated in the same way as natural persons who are nationals of Member States.
‘Companies or firms’ means companies or firms constituted under civil or commercial law, including cooperative societies, and other legal persons governed by public or private law, save for those which are non-profit-making.
***
The European Convention inserted the word ‘Union’ instead of ‘Community’, and ‘Chapter’ was called ‘Subsection’, but there was no material difference between Article III-27 of the draft Treaty establishing a Constitution for Europe and the current TEC provision, and even one formal difference less as regards the ToL TFEU (OJ 18.7.2003 C 169/32-33).
***
Article III-142 of the Treaty establishing a Constitution for Europe took over the draft text word for word (OJ 16.12.2004 C 310/62).
***
After the anodyne statements above, one could easily believe that freedom of establishment for companies is an inoffensive continuation of the principles concerning humans (natural persons), so a few references to actual tensions may be in order.
For further reading available on the web concerning the freedom of establishment as regards companies and firms, you could turn to Nicole Rothe: Freedom of establishment of legal persons within the European Union: An analysis of the European Court of Justice decision in the Überseering case; Case C-208/00:
https://www.wcl.american.edu/journal/lawrev/53/rothe.pdf?rd=1
KPMG’s Euro Tax Flash Issuue 37, 12 September 2006, comments on ‘ECJ decision in Cadbury Schweppes Case (C-196/04):
http://kpmgbe.lcc.ch/dbfetch/52616e646f6d49561b7f558b02435e7dd48a4524c074812ef9097bad01a90f9f/euro_tax_flash_2006_09_12_2.pdf
Frank Muntendam, of Ernst & Young, commented on the Cadbury Schweppes case ‘The end of CFC legislation in Europe?’:
http://www.ey.com/global/content.nsf/Luxembourg_E/Question:_The_end_of_CFC_legislation_in_Europe
A fresh overview is offered by Federico M. Mucciarelli in ‘Companies’ Emigration and EC Freedom of Establishment (15 October 2007):
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1078407#PaperDownload
Ralf Grahn
News and debate tend to focus on (unexpected) change, but the EU’s Treaty of Lisbon is as important for what it preserves, like the equal treatment of commercial companies.
First, we look at the treaty reform cycle from the current Treaty establishing the European Community, via the draft Constitution and the Constitutional Treaty to the Lisbon Treaty. Then, we give a few hints on further reading, which show that seemingly boring and inoffensive provisions are anything but that from the viewpoint of enterprises and tax authorities.
***
When we reach Article 48 of the Treaty establishing the European Community (TEC), we see that the intergovernmental conference (IGC 2007) makes no express amendment in the Treaty of Lisbon (ToL) to what is to become the Treaty on the Functioning of the European Union (TFEU). Cf. Official Journal, OJ 17.12.2007 C 306/55.
***
We find Article 48 TEC in force in the latest consolidated version of the treaties, TEU and TEC, OJ 29.12.2006 C 321 E/61:
Article 48 TEC
Companies or firms formed in accordance with the law of a Member State and having their registered office, central administration or principal place of business within the Community shall, for the purposes of this Chapter, be treated in the same way as natural persons who are nationals of Member States.
‘Companies or firms’ means companies or firms constituted under civil or commercial law, including cooperative societies, and other legal persons governed by public or private law, save for those which are non-profit-making.
***
There is no express amendment and only one horizontal one (‘Community’ replaced by ‘Union’ according to point 2(a)) in the Lisbon Treaty. We check the numbering in the original Lisbon Treaty and the renumbering for the coming consolidated versions, and we add the location of the provision within the treaty for ease of reading. Here is the ‘new’ Article:
Part Three ‘Policies and internal actions of the Union’
Title III (renumbered Title IV) ‘Free movement of persons, services and capital’
Chapter 2 ‘Right of establishment’
Article 48 TFEU (ToL), renumbered Article 54 TFEU
Companies or firms formed in accordance with the law of a Member State and having their registered office, central administration or principal place of business within the Union shall, for the purposes of this Chapter, be treated in the same way as natural persons who are nationals of Member States.
‘Companies or firms’ means companies or firms constituted under civil or commercial law, including cooperative societies, and other legal persons governed by public or private law, save for those which are non-profit-making.
***
The European Convention inserted the word ‘Union’ instead of ‘Community’, and ‘Chapter’ was called ‘Subsection’, but there was no material difference between Article III-27 of the draft Treaty establishing a Constitution for Europe and the current TEC provision, and even one formal difference less as regards the ToL TFEU (OJ 18.7.2003 C 169/32-33).
***
Article III-142 of the Treaty establishing a Constitution for Europe took over the draft text word for word (OJ 16.12.2004 C 310/62).
***
After the anodyne statements above, one could easily believe that freedom of establishment for companies is an inoffensive continuation of the principles concerning humans (natural persons), so a few references to actual tensions may be in order.
For further reading available on the web concerning the freedom of establishment as regards companies and firms, you could turn to Nicole Rothe: Freedom of establishment of legal persons within the European Union: An analysis of the European Court of Justice decision in the Überseering case; Case C-208/00:
https://www.wcl.american.edu/journal/lawrev/53/rothe.pdf?rd=1
KPMG’s Euro Tax Flash Issuue 37, 12 September 2006, comments on ‘ECJ decision in Cadbury Schweppes Case (C-196/04):
http://kpmgbe.lcc.ch/dbfetch/52616e646f6d49561b7f558b02435e7dd48a4524c074812ef9097bad01a90f9f/euro_tax_flash_2006_09_12_2.pdf
Frank Muntendam, of Ernst & Young, commented on the Cadbury Schweppes case ‘The end of CFC legislation in Europe?’:
http://www.ey.com/global/content.nsf/Luxembourg_E/Question:_The_end_of_CFC_legislation_in_Europe
A fresh overview is offered by Federico M. Mucciarelli in ‘Companies’ Emigration and EC Freedom of Establishment (15 October 2007):
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1078407#PaperDownload
Ralf Grahn
Tuesday, 8 April 2008
Stubb continues blogging
Why abolish a winning formula? This seems to be the sentiment of blogger Alexander Stubb, Foreign Minister of Finland since Friday.
In his Finnish blog Stubb has an entry, dated 7 April 2008 to prove it. In addition he declares that he will continue blogging, “self-evidently”:
http://www.alexstubb.com/fi/index.php?trg=diary
Perhaps Jon Worth can take heart, and his potential clients take the plunge, as discussed in the post:
http://www.jonworth.eu/political-pr-and-the-age-of-the-web/
Ralf Grahn
In his Finnish blog Stubb has an entry, dated 7 April 2008 to prove it. In addition he declares that he will continue blogging, “self-evidently”:
http://www.alexstubb.com/fi/index.php?trg=diary
Perhaps Jon Worth can take heart, and his potential clients take the plunge, as discussed in the post:
http://www.jonworth.eu/political-pr-and-the-age-of-the-web/
Ralf Grahn
EU TFEU: Mutual recognition of diplomas
The recognition of diplomas and professional qualifications is important for self-employed (and employed) persons to seize EU-wide opportunities to establish themselves outside their country of origin.
Overcoming obstacles to mobility leads to a better match between the supply and the demand for professional services, bringing gains to individuals as well as the receiving country.
We look at the current Treaty establishing the European Community, the following steps during the treaty reform process – the draft Constitution and the Constitutional Treaty – and the wording of the Treaty of Lisbon undergoing ratification.
Because the right of establishment and the recognition of diplomas potentially concern huge numbers of European Union citizens, there are a few hints on further reading for those who want to gain a basic understanding and an additional link for people with a concrete interest to find out where they stand (or where their education might lead).
***
What does the Treaty of Lisbon (ToL) do to Article 47 of the Treaty establishing the European Community (TEC)? The intergovernmental conference (IGC 2007) decided on the following express amendments in what becomes the Treaty on the Functioning of the European Union (TFEU), as you can see in the Official Journal, OJ, 17.12.2007 C 306/55:
54) Article 47 shall be amended as follows:
(a) the following phrase shall be added at the end of paragraph 1: ‘and for the coordination of the provisions laid down by law, regulation or administrative action in Member States concerning the taking-up and pursuit of activities as self-employed persons.’;
(b) paragraph 2 shall be deleted and paragraph 3 shall be renumbered 2; a change shall be made to the French which does not concern the English version.
***
Disconnected amendments like this serve two purposes of the student of EU law. First, they invite us to read the treaties still in force. Second, since attaining 27 national ratifications on any substantial treaty reform is less than certain, reading the current provisions may mean that we study the future ones as well.
Anyway, we look at the current Article 47 TEC by retrieving it from the latest consolidated version of the existing treaties, the TEU and the TEC, in OJ 29.12.2006 C 321 E/61:
Article 47 TEC
1. In order to make it easier for persons to take up and pursue activities as self-employed persons, the Council shall, acting in accordance with the procedure referred to in Article 251, issue directives for the mutual recognition of diplomas, certificates and other evidence of formal qualifications.
2. For the same purpose, the Council shall, acting in accordance with the procedure referred to in Article 251, issue directives for the coordination of the provisions laid down by law, regulation or administrative action in Member States concerning the taking-up and pursuit of activities as self‑employed persons. The Council, acting unanimously throughout the procedure referred to in Article 251, shall decide on directives the implementation of which involves in at least one Member State amendment of the existing principles laid down by law governing the professions with respect to training and conditions of access for natural persons. In other cases the Council shall act by qualified majority.
3. In the case of the medical and allied and pharmaceutical professions, the progressive abolition of restrictions shall be dependent upon coordination of the conditions for their exercise in the various Member States.
***
We have the basic text and the express amendments. In addition, possible horizontal amendments here, the ordinary legislative procedure), the renumbering of the Article (Tables of equivalences) and the renumbering of referrals, if any (but here none), offer us the opportunity to construct the wording of the provision according to the Lisbon Treaty. The location of the Article (Tables of equivalences) is added to make it easier to remember the context. We should end up with the following consolidated Lisbon Treaty provision:
Part Three ‘Policies and internal actions of the Union’
Title III (renumbered Title IV) ‘Free movement of persons, services and capital’
Chapter 2 ‘Right of establishment’
Article 47 TFEU (ToL), renumbered Article 53 TFEU
1. In order to make it easier for persons to take up and pursue activities as self-employed persons, the European Parliament and the Council shall, acting in accordance with the ordinary legislative procedure, issue directives for the mutual recognition of diplomas, certificates and other evidence of formal qualifications and for the coordination of the provisions laid down by law, regulation or administrative action in Member States concerning the taking-up and pursuit of activities as self-employed persons.
2. In the case of the medical and allied and pharmaceutical professions, the progressive abolition of restrictions shall be dependent upon coordination of the conditions for their exercise in the various Member States.
***
The latest span of treaty reform, from Nice to Lisbon, would be incomplete without a look at the European Convention and the IGC 2004.
First, Article III-26 of the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/32):
Article III-26 Draft Constitution
1. European framework laws shall make it easier for persons to take up and pursue activities as self-employed persons. It shall cover:
(a) the mutual recognition of diplomas, certificates and other evidence of formal qualifications;
(b) the coordination of the provisions laid down by law, regulation or administrative action in Member States concerning the taking-up and pursuit of activities as self-employed persons.
2. In the case of the medical and allied and pharmaceutical professions, the progressive abolition of restrictions shall be dependent upon coordination of the conditions for their exercise in the various Member States.
***
The IGC 2004 replaced ‘it’ by ‘they’ in the first paragraph and added ‘of such professions’ in the second paragraph. Cf. OJ 16.12.2004 C 310/62.
In other words, already the draft Constitution abolished the Article 47(2) TEC requirement of unanimity in the Council regarding directives where the implementation involves in at least one Member State amendment of the existing principles laid down by law governing the professions with respect to training and conditions of access for natural persons.
***
Arguably, enhanced mobility is in the interest of EU citizens because it offers them new opportunities. In practice, fewer obstacles mean that it may be easier for a spouse to take up his or her profession if the family moves to another member state, and fewer cases of highly qualified people working as dishwashers. Added supply should work in favour of consumers, too.
Fifty years from the Treaty of Rome have shown that harmonisation requiring unanimity tends to turn into a bad joke, or at least quite cumbersome.
Abolishing the unanimity rule in a small but important question is a welcome step for individuals.
***
The Commission’s internal market directorate general presents a general background on the web page ‘Living and working in the Single Market’, with further links:
http://ec.europa.eu/internal_market/top_layer/index_15_en.htm
The Commission’s Scadplus pages offer a look more specifically aimed at ‘Recognition of qualifications: introduction’ (last update 7 March 2006):
http://europa.eu/scadplus/leg/en/cha/c00003d.htm
Introductory information is presented on the web page ‘Professional qualifications’, too:
http://ec.europa.eu/internal_market/top_layer/index_15_en.htm
***
Some readers may want more than an overview, for instance if they contemplate moving to another country within the European Economic Area (EEA).
The most important piece of secondary legislation is Directive 2005/36/EC of the European Parliament and of the Council of 7 September 2005 on the recognition of professional qualifications (Text with EEA relevance), OJ 30.9.2005 L 255/22.
Despite or by virtue of its 120 pages, including detailed annexes, the directive may be of interest to considerable numbers of Europeans. The directive replaces the bulk of earlier secondary legislation on professional qualifications, and the new framework is in force since 20 October 2007:
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2005:255:0022:0142:EN:PDF
Ralf Grahn
Overcoming obstacles to mobility leads to a better match between the supply and the demand for professional services, bringing gains to individuals as well as the receiving country.
We look at the current Treaty establishing the European Community, the following steps during the treaty reform process – the draft Constitution and the Constitutional Treaty – and the wording of the Treaty of Lisbon undergoing ratification.
Because the right of establishment and the recognition of diplomas potentially concern huge numbers of European Union citizens, there are a few hints on further reading for those who want to gain a basic understanding and an additional link for people with a concrete interest to find out where they stand (or where their education might lead).
***
What does the Treaty of Lisbon (ToL) do to Article 47 of the Treaty establishing the European Community (TEC)? The intergovernmental conference (IGC 2007) decided on the following express amendments in what becomes the Treaty on the Functioning of the European Union (TFEU), as you can see in the Official Journal, OJ, 17.12.2007 C 306/55:
54) Article 47 shall be amended as follows:
(a) the following phrase shall be added at the end of paragraph 1: ‘and for the coordination of the provisions laid down by law, regulation or administrative action in Member States concerning the taking-up and pursuit of activities as self-employed persons.’;
(b) paragraph 2 shall be deleted and paragraph 3 shall be renumbered 2; a change shall be made to the French which does not concern the English version.
***
Disconnected amendments like this serve two purposes of the student of EU law. First, they invite us to read the treaties still in force. Second, since attaining 27 national ratifications on any substantial treaty reform is less than certain, reading the current provisions may mean that we study the future ones as well.
Anyway, we look at the current Article 47 TEC by retrieving it from the latest consolidated version of the existing treaties, the TEU and the TEC, in OJ 29.12.2006 C 321 E/61:
Article 47 TEC
1. In order to make it easier for persons to take up and pursue activities as self-employed persons, the Council shall, acting in accordance with the procedure referred to in Article 251, issue directives for the mutual recognition of diplomas, certificates and other evidence of formal qualifications.
2. For the same purpose, the Council shall, acting in accordance with the procedure referred to in Article 251, issue directives for the coordination of the provisions laid down by law, regulation or administrative action in Member States concerning the taking-up and pursuit of activities as self‑employed persons. The Council, acting unanimously throughout the procedure referred to in Article 251, shall decide on directives the implementation of which involves in at least one Member State amendment of the existing principles laid down by law governing the professions with respect to training and conditions of access for natural persons. In other cases the Council shall act by qualified majority.
3. In the case of the medical and allied and pharmaceutical professions, the progressive abolition of restrictions shall be dependent upon coordination of the conditions for their exercise in the various Member States.
***
We have the basic text and the express amendments. In addition, possible horizontal amendments here, the ordinary legislative procedure), the renumbering of the Article (Tables of equivalences) and the renumbering of referrals, if any (but here none), offer us the opportunity to construct the wording of the provision according to the Lisbon Treaty. The location of the Article (Tables of equivalences) is added to make it easier to remember the context. We should end up with the following consolidated Lisbon Treaty provision:
Part Three ‘Policies and internal actions of the Union’
Title III (renumbered Title IV) ‘Free movement of persons, services and capital’
Chapter 2 ‘Right of establishment’
Article 47 TFEU (ToL), renumbered Article 53 TFEU
1. In order to make it easier for persons to take up and pursue activities as self-employed persons, the European Parliament and the Council shall, acting in accordance with the ordinary legislative procedure, issue directives for the mutual recognition of diplomas, certificates and other evidence of formal qualifications and for the coordination of the provisions laid down by law, regulation or administrative action in Member States concerning the taking-up and pursuit of activities as self-employed persons.
2. In the case of the medical and allied and pharmaceutical professions, the progressive abolition of restrictions shall be dependent upon coordination of the conditions for their exercise in the various Member States.
***
The latest span of treaty reform, from Nice to Lisbon, would be incomplete without a look at the European Convention and the IGC 2004.
First, Article III-26 of the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/32):
Article III-26 Draft Constitution
1. European framework laws shall make it easier for persons to take up and pursue activities as self-employed persons. It shall cover:
(a) the mutual recognition of diplomas, certificates and other evidence of formal qualifications;
(b) the coordination of the provisions laid down by law, regulation or administrative action in Member States concerning the taking-up and pursuit of activities as self-employed persons.
2. In the case of the medical and allied and pharmaceutical professions, the progressive abolition of restrictions shall be dependent upon coordination of the conditions for their exercise in the various Member States.
***
The IGC 2004 replaced ‘it’ by ‘they’ in the first paragraph and added ‘of such professions’ in the second paragraph. Cf. OJ 16.12.2004 C 310/62.
In other words, already the draft Constitution abolished the Article 47(2) TEC requirement of unanimity in the Council regarding directives where the implementation involves in at least one Member State amendment of the existing principles laid down by law governing the professions with respect to training and conditions of access for natural persons.
***
Arguably, enhanced mobility is in the interest of EU citizens because it offers them new opportunities. In practice, fewer obstacles mean that it may be easier for a spouse to take up his or her profession if the family moves to another member state, and fewer cases of highly qualified people working as dishwashers. Added supply should work in favour of consumers, too.
Fifty years from the Treaty of Rome have shown that harmonisation requiring unanimity tends to turn into a bad joke, or at least quite cumbersome.
Abolishing the unanimity rule in a small but important question is a welcome step for individuals.
***
The Commission’s internal market directorate general presents a general background on the web page ‘Living and working in the Single Market’, with further links:
http://ec.europa.eu/internal_market/top_layer/index_15_en.htm
The Commission’s Scadplus pages offer a look more specifically aimed at ‘Recognition of qualifications: introduction’ (last update 7 March 2006):
http://europa.eu/scadplus/leg/en/cha/c00003d.htm
Introductory information is presented on the web page ‘Professional qualifications’, too:
http://ec.europa.eu/internal_market/top_layer/index_15_en.htm
***
Some readers may want more than an overview, for instance if they contemplate moving to another country within the European Economic Area (EEA).
The most important piece of secondary legislation is Directive 2005/36/EC of the European Parliament and of the Council of 7 September 2005 on the recognition of professional qualifications (Text with EEA relevance), OJ 30.9.2005 L 255/22.
Despite or by virtue of its 120 pages, including detailed annexes, the directive may be of interest to considerable numbers of Europeans. The directive replaces the bulk of earlier secondary legislation on professional qualifications, and the new framework is in force since 20 October 2007:
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2005:255:0022:0142:EN:PDF
Ralf Grahn
Monday, 7 April 2008
EU TFEU: Public policy, public security and public health exceptions
‘Public policy, public security or public health’ form a potent formula for exceptions concerning the fundamental principles of free movement, citizenship rights, freedom to provide services and freedom of establishment within the European Community (European Union).
Here we look at the exemptions in the light of the present Treaty establishing the European Community and the coming Treaty on the Functioning of the European Union (Treaty of Lisbon), with a glance towards the draft Constitution and the Constitutional Treaty along the route.
The concrete provision we deal with concerns these exceptions in the context of the freedom of establishment, but often more than one of the rights and freedoms occur in the same case.
A few hints on further reading follow, meant to facilitate understanding of the system and strict interpretation of derogations.
***
In the Treaty of Lisbon (ToL) the intergovernmental conference (IGC 2007) made no specific amendments to Article 46 of the Treaty establishing the European Community (TEC). Cf. Official Journal, OJ, 17.12.2007 C 306/54-55.
***
The latest consolidated version of the existing treaties, TEU and TEC, presents Article 46 TEC as it now stands (OJ 29.12.2006 C 321 E/61):
Article 46 TEC
1. The provisions of this Chapter and measures taken in pursuance thereof shall not prejudice the applicability of provisions laid down by law, regulation or administrative action providing for special treatment for foreign nationals on grounds of public policy, public security or public health.
2. The Council shall, acting in accordance with the procedure referred to in Article 251, issue directives for the coordination of the abovementioned provisions.
***
To arrive at a consolidated Lisbon Treaty version of an Article requires that we check if one or more of the following apply: express amendments (here none), horizontal amendments (here one), renumbering of the provision (yes) and renumbering of possible referrals (here none).
The location of the Article is thrown in as a matter of reading convenience in a post read in isolation.
Thus, we should end up with the following Article, consolidated according to the Treaty of Lisbon:
Part Three ‘Policies and internal actions of the Union’
Title III (renumbered Title IV) ‘Free movement of persons, services and capital’
Chapter 2 ‘Right of establishment’
Article 46 TFEU (ToL), renumbered Article 52 TFEU
1. The provisions of this Chapter and measures taken in pursuance thereof shall not prejudice the applicability of provisions laid down by law, regulation or administrative action providing for special treatment for foreign nationals on grounds of public policy, public security or public health.
2. The European Parliament and the Council shall, acting in accordance with the ordinary legislative procedure, issue directives for the coordination of the abovementioned provisions.
***
The European Convention changed just enough of the wording in Article III-25 of the draft Treaty establishing a Constitution for Europe to merit repeating, but without changing anything of substance (OJ 18.7.2003 C 169/32):
Article III-25 Draft Constitution
1. This Subsection and measures adopted in pursuance thereof shall not prejudice the applicability of provisions laid down by law, regulation or administrative action in Member States providing for special treatment for foreign nationals on grounds of public policy, public security or public health.
2. European framework laws shall coordinate the national provisions referred to in paragraph 1.
***
The IGC 2004 adopted the draft text unchanged in Article III-140 of the Treaty establishing a Constitution for Europe (OJ 16.12.2004 C 310/62).
***
The IGC 2007 followed the adage ‘If it ain’t broke, don’t fix it’, thus preserving the current wording (with the one technical or horizontal amendment concerning the ordinary legislative procedure).
***
The Commission’s internal market web pages on services offer an introductory page ‘General principles: Freedom to provide services / Freedom of establishment’ (last update 28 January 2008):
http://ec.europa.eu/internal_market/services/principles_en.htm
There is a link to a 112 page ‘Guide to the Case Law of the European Court of Justice on Articles 43 et seq. EC Treaty: Freedom of Establishment’, from 1 January 2001, but with an update promised shortly:
http://ec.europa.eu/internal_market/services/docs/infringements/art43_en.pdf
Available on the web you can find the following:
J.H.H. Weiler and Martina Kocjan: The Law of the European Union, Teaching Material, The Internal Market: Freedom to Provide Services, Freedom of Establishment (NYU School of Law 2004/2005; 72 pages):
http://ec.europa.eu/internal_market/services/docs/infringements/art43_en.pdf
A detailed study is:
Markku Kiikeri: The Freedom of Establishment in the European Union, Report to the Finnish Ministry of Trade and Industry, 2002 (133 pages + Annexes XIX pages):
http://www.helsinki.fi/publaw/opiskelu/Eurooppaoikeus/Sijoittautumistutkimus.englanti.Kiikeri.pdf
These materials offer a fair grounding in the fundamental questions regarding the freedom of establishment, leaving only the latest developments of secondary legislation and case law to be unearthed by the reader.
Ralf Grahn
P.S. Both the draft Constitution and the Constitutional Treaty were published quickly, and they were already 'consolidated versions'. We have to go back to the ill-fated Treaty of Nice to find a treaty published in a consolidated version only after entering into force.
Some would argue that a few things have happened in net publishing since 2001.
Anyway, a long wait seems to draw to a close, when the consolidated Lisbon Treaty is published 15 April 2008, and in book form 9 May 2008 (Europe day).
Here we look at the exemptions in the light of the present Treaty establishing the European Community and the coming Treaty on the Functioning of the European Union (Treaty of Lisbon), with a glance towards the draft Constitution and the Constitutional Treaty along the route.
The concrete provision we deal with concerns these exceptions in the context of the freedom of establishment, but often more than one of the rights and freedoms occur in the same case.
A few hints on further reading follow, meant to facilitate understanding of the system and strict interpretation of derogations.
***
In the Treaty of Lisbon (ToL) the intergovernmental conference (IGC 2007) made no specific amendments to Article 46 of the Treaty establishing the European Community (TEC). Cf. Official Journal, OJ, 17.12.2007 C 306/54-55.
***
The latest consolidated version of the existing treaties, TEU and TEC, presents Article 46 TEC as it now stands (OJ 29.12.2006 C 321 E/61):
Article 46 TEC
1. The provisions of this Chapter and measures taken in pursuance thereof shall not prejudice the applicability of provisions laid down by law, regulation or administrative action providing for special treatment for foreign nationals on grounds of public policy, public security or public health.
2. The Council shall, acting in accordance with the procedure referred to in Article 251, issue directives for the coordination of the abovementioned provisions.
***
To arrive at a consolidated Lisbon Treaty version of an Article requires that we check if one or more of the following apply: express amendments (here none), horizontal amendments (here one), renumbering of the provision (yes) and renumbering of possible referrals (here none).
The location of the Article is thrown in as a matter of reading convenience in a post read in isolation.
Thus, we should end up with the following Article, consolidated according to the Treaty of Lisbon:
Part Three ‘Policies and internal actions of the Union’
Title III (renumbered Title IV) ‘Free movement of persons, services and capital’
Chapter 2 ‘Right of establishment’
Article 46 TFEU (ToL), renumbered Article 52 TFEU
1. The provisions of this Chapter and measures taken in pursuance thereof shall not prejudice the applicability of provisions laid down by law, regulation or administrative action providing for special treatment for foreign nationals on grounds of public policy, public security or public health.
2. The European Parliament and the Council shall, acting in accordance with the ordinary legislative procedure, issue directives for the coordination of the abovementioned provisions.
***
The European Convention changed just enough of the wording in Article III-25 of the draft Treaty establishing a Constitution for Europe to merit repeating, but without changing anything of substance (OJ 18.7.2003 C 169/32):
Article III-25 Draft Constitution
1. This Subsection and measures adopted in pursuance thereof shall not prejudice the applicability of provisions laid down by law, regulation or administrative action in Member States providing for special treatment for foreign nationals on grounds of public policy, public security or public health.
2. European framework laws shall coordinate the national provisions referred to in paragraph 1.
***
The IGC 2004 adopted the draft text unchanged in Article III-140 of the Treaty establishing a Constitution for Europe (OJ 16.12.2004 C 310/62).
***
The IGC 2007 followed the adage ‘If it ain’t broke, don’t fix it’, thus preserving the current wording (with the one technical or horizontal amendment concerning the ordinary legislative procedure).
***
The Commission’s internal market web pages on services offer an introductory page ‘General principles: Freedom to provide services / Freedom of establishment’ (last update 28 January 2008):
http://ec.europa.eu/internal_market/services/principles_en.htm
There is a link to a 112 page ‘Guide to the Case Law of the European Court of Justice on Articles 43 et seq. EC Treaty: Freedom of Establishment’, from 1 January 2001, but with an update promised shortly:
http://ec.europa.eu/internal_market/services/docs/infringements/art43_en.pdf
Available on the web you can find the following:
J.H.H. Weiler and Martina Kocjan: The Law of the European Union, Teaching Material, The Internal Market: Freedom to Provide Services, Freedom of Establishment (NYU School of Law 2004/2005; 72 pages):
http://ec.europa.eu/internal_market/services/docs/infringements/art43_en.pdf
A detailed study is:
Markku Kiikeri: The Freedom of Establishment in the European Union, Report to the Finnish Ministry of Trade and Industry, 2002 (133 pages + Annexes XIX pages):
http://www.helsinki.fi/publaw/opiskelu/Eurooppaoikeus/Sijoittautumistutkimus.englanti.Kiikeri.pdf
These materials offer a fair grounding in the fundamental questions regarding the freedom of establishment, leaving only the latest developments of secondary legislation and case law to be unearthed by the reader.
Ralf Grahn
P.S. Both the draft Constitution and the Constitutional Treaty were published quickly, and they were already 'consolidated versions'. We have to go back to the ill-fated Treaty of Nice to find a treaty published in a consolidated version only after entering into force.
Some would argue that a few things have happened in net publishing since 2001.
Anyway, a long wait seems to draw to a close, when the consolidated Lisbon Treaty is published 15 April 2008, and in book form 9 May 2008 (Europe day).
Sunday, 6 April 2008
EU TFEU: Freedom of establishment derogation: Exercise of official authority
The freedom of establishment within the European Community (European Union) is not limitless. There are legitimate derogations or exemptions, of which the exercise of official authority is one.
We look at what, if anything, the EU’s Treaty of Lisbon changes compared to the current Treaty establishing the European Community, and if the draft Constitution and the Constitutional Treaty would have made any difference.
A case note offers an example of practical considerations.
***
In the Treaty of Lisbon (ToL) the intergovernmental conference briefly mentions Article 45 of the Treaty establishing the European Community (TEC), renamed the Treaty on the Functioning of the European Union (TFEU). See Official Journal, OJ, 17.12.2007 C 306/54:
53) In Article 45, second paragraph, the words ‘The Council may, acting by a qualified majority on a proposal from the Commission,’ shall be replaced by ‘The European Parliament and the Council, acting in accordance with the ordinary legislative procedure, may’.
***
For contents and meaning we turn to the latest consolidated version of the current treaties, the TEU and the TEC, in OJ 29.12.2006 C 321 E/60:
Article 45 TEC
The provisions of this Chapter shall not apply, so far as any given Member State is concerned, to activities which in that State are connected, even occasionally, with the exercise of official authority.
The Council may, acting by a qualified majority on a proposal from the Commission, rule that the provisions of this Chapter shall not apply to certain activities.
***
To arrive at a consolidated Lisbon Treaty version of an Article requires that we check if one or more of the following apply: express amendments, horizontal amendments, renumbering of the provision and renumbering of possible referrals.
The location of the Article is thrown in as a matter of reading convenience in a post read in isolation.
Thus, we should end up with the following Article, consolidated according to the Treaty of Lisbon:
Part Three ‘Policies and internal actions of the Union’
Title III (renumbered Title IV) ‘Free movement of persons, services and capital’
Chapter 2 ‘Right of establishment’
Article 45 TFEU (ToL), renumbered Article 51 TFEU
The provisions of this Chapter shall not apply, so far as any given Member State is concerned, to activities which in that State are connected, even occasionally, with the exercise of official authority.
The European Parliament and the Council, acting in accordance with the ordinary legislative procedure, may rule that the provisions of this Chapter shall not apply to certain activities.
***
Article III-24 of the draft Treaty establishing a Constitution for Europe introduced ‘European laws or framework laws’ (co-decision, ordinary legislative procedure) into the second paragraph, arguably in plainer language (OJ 18.7.2003 C 169/32):
Article III-24 Draft Treaty
This Subsection shall not apply, so far as any given Member State is concerned, to activities which in that State are connected, even occasionally, with the exercise of official authority.
European laws or framework laws may exempt certain activities from application of this Subsection.
***
Article III-139 of the Treaty establishing a Constitution for Europe replaced the word ‘exempt’ by ‘exclude’, but made no other changes (OJ 16.12.2004 C 310/62).
***
We see that the IGC 2007, by-passing such ‘cosmetic’ changes in such cases, manages to keep the number and volume of Lisbon Treaty amendments down, by reverting to the TEC text.
***
Suitable further reading is offered by Peer Zumbansen in a note on the case C-283/99 ‘No Need To Be Italian: ECJ Hands Down Third Case Related To Nationality Requirements For Private Security Guards’, published in the German Law Journal Vol. 2 No. 10 – 15 June 2001, and available on the web:
http://www.germanlawjournal.com/print.php?id=29
Freedom of movement of workers, freedom of establishment and the limits of derogations are discussed.
Ralf Grahn
P.S. Finally the consolidated Lisbon Treaties are due to arrive, 15 April 2008. On Europe day, 9 May 2008 they are published in book form.
We look at what, if anything, the EU’s Treaty of Lisbon changes compared to the current Treaty establishing the European Community, and if the draft Constitution and the Constitutional Treaty would have made any difference.
A case note offers an example of practical considerations.
***
In the Treaty of Lisbon (ToL) the intergovernmental conference briefly mentions Article 45 of the Treaty establishing the European Community (TEC), renamed the Treaty on the Functioning of the European Union (TFEU). See Official Journal, OJ, 17.12.2007 C 306/54:
53) In Article 45, second paragraph, the words ‘The Council may, acting by a qualified majority on a proposal from the Commission,’ shall be replaced by ‘The European Parliament and the Council, acting in accordance with the ordinary legislative procedure, may’.
***
For contents and meaning we turn to the latest consolidated version of the current treaties, the TEU and the TEC, in OJ 29.12.2006 C 321 E/60:
Article 45 TEC
The provisions of this Chapter shall not apply, so far as any given Member State is concerned, to activities which in that State are connected, even occasionally, with the exercise of official authority.
The Council may, acting by a qualified majority on a proposal from the Commission, rule that the provisions of this Chapter shall not apply to certain activities.
***
To arrive at a consolidated Lisbon Treaty version of an Article requires that we check if one or more of the following apply: express amendments, horizontal amendments, renumbering of the provision and renumbering of possible referrals.
The location of the Article is thrown in as a matter of reading convenience in a post read in isolation.
Thus, we should end up with the following Article, consolidated according to the Treaty of Lisbon:
Part Three ‘Policies and internal actions of the Union’
Title III (renumbered Title IV) ‘Free movement of persons, services and capital’
Chapter 2 ‘Right of establishment’
Article 45 TFEU (ToL), renumbered Article 51 TFEU
The provisions of this Chapter shall not apply, so far as any given Member State is concerned, to activities which in that State are connected, even occasionally, with the exercise of official authority.
The European Parliament and the Council, acting in accordance with the ordinary legislative procedure, may rule that the provisions of this Chapter shall not apply to certain activities.
***
Article III-24 of the draft Treaty establishing a Constitution for Europe introduced ‘European laws or framework laws’ (co-decision, ordinary legislative procedure) into the second paragraph, arguably in plainer language (OJ 18.7.2003 C 169/32):
Article III-24 Draft Treaty
This Subsection shall not apply, so far as any given Member State is concerned, to activities which in that State are connected, even occasionally, with the exercise of official authority.
European laws or framework laws may exempt certain activities from application of this Subsection.
***
Article III-139 of the Treaty establishing a Constitution for Europe replaced the word ‘exempt’ by ‘exclude’, but made no other changes (OJ 16.12.2004 C 310/62).
***
We see that the IGC 2007, by-passing such ‘cosmetic’ changes in such cases, manages to keep the number and volume of Lisbon Treaty amendments down, by reverting to the TEC text.
***
Suitable further reading is offered by Peer Zumbansen in a note on the case C-283/99 ‘No Need To Be Italian: ECJ Hands Down Third Case Related To Nationality Requirements For Private Security Guards’, published in the German Law Journal Vol. 2 No. 10 – 15 June 2001, and available on the web:
http://www.germanlawjournal.com/print.php?id=29
Freedom of movement of workers, freedom of establishment and the limits of derogations are discussed.
Ralf Grahn
P.S. Finally the consolidated Lisbon Treaties are due to arrive, 15 April 2008. On Europe day, 9 May 2008 they are published in book form.
Saturday, 5 April 2008
European Union Law Blog
With about 100 million German speaking EU citizens – about one in five, actually – I have wondered at the scarcity of German blogs on EU law and politics. Jon Worth’s Euroblog helped me find Nicole Meβmers blog on EU politics. See:
http://www.jonworth.eu/blog/euroblog/
http://www.nicole-messmer.de/
Earlier I had noticed the blog of Jan Seifert, Jan’s EUblog:
http://blog.jan-seifert.de/
But a blog on European law in general and especially the Treaty of Lisbon had eluded me. Now there is a cure, the European Union Law Blog, written by Michelle Potier in Leipzig, posting mainly in German (despite the English blog name). The latest posts have focused on the Lisbon Treaty and the ratification debate in an informative and timely manner. See this welcome blog on:
http://www.law-europe.eu/
Despite the likeness of the names, the European Union Law Blog should not be confused with the EU Law Blog:
http://eulaw.typepad.com/
There is one similarity between all the blogs mentioned here: Recommended reading for everyone interested in EU politics or law.
Ralf Grahn
P.S. 6 April 2008: I apologise for the mistake above. I realised that I exaggerated the number of German speakers within the European Union. Perhaps 90 million would be more like a correct number, still a considerable proportion of about 490 million EU citizens in all.
In addition to being the official language of Germany and Austria, German has official status in Belgium and Luxembourg plus the Province of Bolzano-Bozen within the EU, as well as official status outside the EU in neighbouring Liechtenstein and Switzerland.
For more information you can read the Wikipedia article 'German language'
http://en.wikipedia.org/wiki/German_language
P.S. II: Consolidated versions of the Lisbon Treaty are due 15 April 2008, and in book form 9 May 2008 (Europe day).
http://www.jonworth.eu/blog/euroblog/
http://www.nicole-messmer.de/
Earlier I had noticed the blog of Jan Seifert, Jan’s EUblog:
http://blog.jan-seifert.de/
But a blog on European law in general and especially the Treaty of Lisbon had eluded me. Now there is a cure, the European Union Law Blog, written by Michelle Potier in Leipzig, posting mainly in German (despite the English blog name). The latest posts have focused on the Lisbon Treaty and the ratification debate in an informative and timely manner. See this welcome blog on:
http://www.law-europe.eu/
Despite the likeness of the names, the European Union Law Blog should not be confused with the EU Law Blog:
http://eulaw.typepad.com/
There is one similarity between all the blogs mentioned here: Recommended reading for everyone interested in EU politics or law.
Ralf Grahn
P.S. 6 April 2008: I apologise for the mistake above. I realised that I exaggerated the number of German speakers within the European Union. Perhaps 90 million would be more like a correct number, still a considerable proportion of about 490 million EU citizens in all.
In addition to being the official language of Germany and Austria, German has official status in Belgium and Luxembourg plus the Province of Bolzano-Bozen within the EU, as well as official status outside the EU in neighbouring Liechtenstein and Switzerland.
For more information you can read the Wikipedia article 'German language'
http://en.wikipedia.org/wiki/German_language
P.S. II: Consolidated versions of the Lisbon Treaty are due 15 April 2008, and in book form 9 May 2008 (Europe day).
EU presidents: Quatremer and Who do I call?
Jean Quatremer has an interesting post about the EU presidencies on his blog Coulisses de Bruxelles, UE, where he takes up a rumour that José Manuel Barroso might become the first semi-permanent president of the European Council. But besides, the posting discusses different priorities among the member states and takes up the possibility of a merger of the top jobs as Commission and European Council president. In addition, he mentions the election procedure. The post is followed by a lively discussion. See:
http://bruxelles.blogs.liberation.fr/coulisses/2008/04/barroso-prsiden.html
After a slow start, there seems to be a growing awareness of the need to discuss the future roles of the top office holders of the European Union, as well as the transparency of the election and the democratic legitimacy of the ones who are going to represent the EU internally and externally during the first five years of the Lisbon Treaty.
These are at least first steps towards serious debate about the issues at stake, and may lead to real discussion about the qualifications needed. We can be grateful to Jan Seifert and Jon Worth have launched a debate by calling for a merger of the presidencies on their web site and blog Who do I Call?
http://www.whodoicall.eu/
Personally, I have offered my own view of the issues at stake and the selection criteria in my blog post Heavyweight president for European Council?
http://grahnlaw.blogspot.com/2008/03/heavyweight-president-for-european.html
In the long run a European Union, which teaches the world the virtues of democracy, can not continue to work in the footsteps of the Holy Alliance.
Ralf Grahn
P.S. Consolidated versions of the Lisbon Treaty are to be published 15 April 2008 and in book form on Europe day, 9 May 2008.
P.S. II: Can 'managed democracy' really be the way forward for the European Union?
http://bruxelles.blogs.liberation.fr/coulisses/2008/04/barroso-prsiden.html
After a slow start, there seems to be a growing awareness of the need to discuss the future roles of the top office holders of the European Union, as well as the transparency of the election and the democratic legitimacy of the ones who are going to represent the EU internally and externally during the first five years of the Lisbon Treaty.
These are at least first steps towards serious debate about the issues at stake, and may lead to real discussion about the qualifications needed. We can be grateful to Jan Seifert and Jon Worth have launched a debate by calling for a merger of the presidencies on their web site and blog Who do I Call?
http://www.whodoicall.eu/
Personally, I have offered my own view of the issues at stake and the selection criteria in my blog post Heavyweight president for European Council?
http://grahnlaw.blogspot.com/2008/03/heavyweight-president-for-european.html
In the long run a European Union, which teaches the world the virtues of democracy, can not continue to work in the footsteps of the Holy Alliance.
Ralf Grahn
P.S. Consolidated versions of the Lisbon Treaty are to be published 15 April 2008 and in book form on Europe day, 9 May 2008.
P.S. II: Can 'managed democracy' really be the way forward for the European Union?
EU TFEU: Legislating freedom of establishment
To make the freedom of establishment a living reality, more is needed than the prohibition of discrimination. Obstacles have to be removed by European Community (European Union) legislation.
The Treaty of Lisbon retains the ‘directives’ as legislative acts, and in this field.
***
The Treaty of Lisbon (ToL) briefly mentions Article 44 of the Treaty establishing the European Community (TEC). Here is what the intergovernmental conference (IGC 2007) wants changed in the Treaty on the Functioning of the European Union (TFEU), as it is to be called (OJ 17.12.2007 C 306/54):
FREEDOM OF ESTABLISHMENT
52) In Article 44(2), the words ‘The European Parliament,’ shall be inserted at the beginning of the paragraph.
***
Some of us think that readable legal acts are a cornerstone of openness and transparency. The IGC 2007 did not, so we have to turn to the latest consolidated version of the existing treaties to find the words meant to surround the insertion at the beginning of Article 44(2) TEC (OJ 29.12.2006 C 321 E/59-60):
Article 44 TEC
1. In order to attain freedom of establishment as regards a particular activity, the Council, acting in accordance with the procedure referred to in Article 251 and after consulting the Economic and Social Committee, shall act by means of directives.
2. The Council and the Commission shall carry out the duties devolving upon them under the
preceding provisions, in particular:
(a) by according, as a general rule, priority treatment to activities where freedom of establishment makes a particularly valuable contribution to the development of production and trade;
(b) by ensuring close cooperation between the competent authorities in the Member States in order to ascertain the particular situation within the Community of the various activities concerned;
(c) by abolishing those administrative procedures and practices, whether resulting from national legislation or from agreements previously concluded between Member States, the maintenance of which would form an obstacle to freedom of establishment;
(d) by ensuring that workers of one Member State employed in the territory of another Member State may remain in that territory for the purpose of taking up activities therein as self‑employed persons, where they satisfy the conditions which they would be required to satisfy if they were entering that State at the time when they intended to take up such activities;
(e) by enabling a national of one Member State to acquire and use land and buildings situated in the territory of another Member State, in so far as this does not conflict with the principles laid down in Article 33(2);
(f) by effecting the progressive abolition of restrictions on freedom of establishment in every branch of activity under consideration, both as regards the conditions for setting up agencies, branches or subsidiaries in the territory of a Member State and as regards the subsidiaries in the territory of a Member State and as regards the conditions governing the entry of personnel belonging to the main establishment into managerial or supervisory posts in such agencies, branches or subsidiaries;
(g) by coordinating to the necessary extent the safeguards which, for the protection of the interests of members and other, are required by Member States of companies or firms within the meaning of the second paragraph of Article 48 with a view to making such safeguards equivalent throughout the Community;
(h) by satisfying themselves that the conditions of establishment are not distorted by aids granted by Member States.
***
If the Lisbon programme has strived towards a knowledge society, the Lisbon Treaty was a step backwards to primitive and wasteful practices. Instead of one centrally made consolidation in each treaty language, we were offered the multiplication of work and effort of disparate attempts in every corner of Europe.
Not only that, but every provision has to be checked from about five different sources before its meaning is clear:
Express amendments
Horizontal amendments
Numbering and renumbering
Numbering and renumbering of referrals
Protocols and declarations
For good measure, we add the location of the Article in question in order to facilitate the reading of a post in isolation.
***
Do the member states’ governments still think that an unreadable treaty would be more welcome and cause less trouble than a readable one?
Anyway, a gestation period of about ten months from the IGC 2007 mandate was needed, before the Council finally publishes the consolidated versions of the Lisbon Treaty TEU and TFEU on 15 April 2008.
***
Back to DIY consolidation and Article 44 as it should look when the Treaty of Lisbon is in force:
Part Three ‘Policies and internal actions of the Union’
Title III (renumbered Title IV) ‘Free movement of persons, services and capital’
Chapter 2 ‘Right of establishment’
Article 44 TFEU (ToL), renumbered Article 50 TFEU
1. In order to attain freedom of establishment as regards a particular activity, the European Parliament and the Council, acting in accordance with the ordinary legislative procedure and after consulting the Economic and Social Committee, shall act by means of directives.
2. The European Parliament, the Council and the Commission shall carry out the duties devolving upon them under the preceding provisions, in particular:
(a) by according, as a general rule, priority treatment to activities where freedom of establishment makes a particularly valuable contribution to the development of production and trade;
(b) by ensuring close cooperation between the competent authorities in the Member States in order to ascertain the particular situation within the Union of the various activities concerned;
(c) by abolishing those administrative procedures and practices, whether resulting from national legislation or from agreements previously concluded between Member States, the maintenance of which would form an obstacle to freedom of establishment;
(d) by ensuring that workers of one Member State employed in the territory of another Member State may remain in that territory for the purpose of taking up activities therein as self‑employed persons, where they satisfy the conditions which they would be required to satisfy if they were entering that State at the time when they intended to take up such activities;
(e) by enabling a national of one Member State to acquire and use land and buildings situated in the territory of another Member State, in so far as this does not conflict with the principles laid down in Article 33(2) [ToL, renumbered Article 39(2) TFEU];
(f) by effecting the progressive abolition of restrictions on freedom of establishment in every branch of activity under consideration, both as regards the conditions for setting up agencies, branches or subsidiaries in the territory of a Member State and as regards the subsidiaries in the territory of a Member State and as regards the conditions governing the entry of personnel belonging to the main establishment into managerial or supervisory posts in such agencies, branches or subsidiaries;
(g) by coordinating to the necessary extent the safeguards which, for the protection of the interests of members and other, are required by Member States of companies or firms within the meaning of the second paragraph of Article 48 [ToL, renumbered Article 54 TFEU] with a view to making such safeguards equivalent throughout the Union;
(h) by satisfying themselves that the conditions of establishment are not distorted by aids granted by Member States.
***
The corresponding provision of the draft Treaty establishing a Constitution for Europe was Article III-23. The European Convention named them ‘European framework laws’, but now and still according to the Lisbon Treaty they are known as ‘directives’. The referrals were naturally different, but otherwise the minimal changes were already there (OJ 18.7.2003 C 169/32).
***
The difference between the draft and the Treaty establishing a Constitution for Europe Article III-138 is ‘microscopic’.
***
One suggestion for further reading is the European Parliament’s factsheet ‘Freedom of establishment, freedom to provide services and mutual recognition of diplomas (last update 27 October 2006):
http://www.europarl.europa.eu/facts/3_2_3_en.htm
Ralf Grahn
The Treaty of Lisbon retains the ‘directives’ as legislative acts, and in this field.
***
The Treaty of Lisbon (ToL) briefly mentions Article 44 of the Treaty establishing the European Community (TEC). Here is what the intergovernmental conference (IGC 2007) wants changed in the Treaty on the Functioning of the European Union (TFEU), as it is to be called (OJ 17.12.2007 C 306/54):
FREEDOM OF ESTABLISHMENT
52) In Article 44(2), the words ‘The European Parliament,’ shall be inserted at the beginning of the paragraph.
***
Some of us think that readable legal acts are a cornerstone of openness and transparency. The IGC 2007 did not, so we have to turn to the latest consolidated version of the existing treaties to find the words meant to surround the insertion at the beginning of Article 44(2) TEC (OJ 29.12.2006 C 321 E/59-60):
Article 44 TEC
1. In order to attain freedom of establishment as regards a particular activity, the Council, acting in accordance with the procedure referred to in Article 251 and after consulting the Economic and Social Committee, shall act by means of directives.
2. The Council and the Commission shall carry out the duties devolving upon them under the
preceding provisions, in particular:
(a) by according, as a general rule, priority treatment to activities where freedom of establishment makes a particularly valuable contribution to the development of production and trade;
(b) by ensuring close cooperation between the competent authorities in the Member States in order to ascertain the particular situation within the Community of the various activities concerned;
(c) by abolishing those administrative procedures and practices, whether resulting from national legislation or from agreements previously concluded between Member States, the maintenance of which would form an obstacle to freedom of establishment;
(d) by ensuring that workers of one Member State employed in the territory of another Member State may remain in that territory for the purpose of taking up activities therein as self‑employed persons, where they satisfy the conditions which they would be required to satisfy if they were entering that State at the time when they intended to take up such activities;
(e) by enabling a national of one Member State to acquire and use land and buildings situated in the territory of another Member State, in so far as this does not conflict with the principles laid down in Article 33(2);
(f) by effecting the progressive abolition of restrictions on freedom of establishment in every branch of activity under consideration, both as regards the conditions for setting up agencies, branches or subsidiaries in the territory of a Member State and as regards the subsidiaries in the territory of a Member State and as regards the conditions governing the entry of personnel belonging to the main establishment into managerial or supervisory posts in such agencies, branches or subsidiaries;
(g) by coordinating to the necessary extent the safeguards which, for the protection of the interests of members and other, are required by Member States of companies or firms within the meaning of the second paragraph of Article 48 with a view to making such safeguards equivalent throughout the Community;
(h) by satisfying themselves that the conditions of establishment are not distorted by aids granted by Member States.
***
If the Lisbon programme has strived towards a knowledge society, the Lisbon Treaty was a step backwards to primitive and wasteful practices. Instead of one centrally made consolidation in each treaty language, we were offered the multiplication of work and effort of disparate attempts in every corner of Europe.
Not only that, but every provision has to be checked from about five different sources before its meaning is clear:
Express amendments
Horizontal amendments
Numbering and renumbering
Numbering and renumbering of referrals
Protocols and declarations
For good measure, we add the location of the Article in question in order to facilitate the reading of a post in isolation.
***
Do the member states’ governments still think that an unreadable treaty would be more welcome and cause less trouble than a readable one?
Anyway, a gestation period of about ten months from the IGC 2007 mandate was needed, before the Council finally publishes the consolidated versions of the Lisbon Treaty TEU and TFEU on 15 April 2008.
***
Back to DIY consolidation and Article 44 as it should look when the Treaty of Lisbon is in force:
Part Three ‘Policies and internal actions of the Union’
Title III (renumbered Title IV) ‘Free movement of persons, services and capital’
Chapter 2 ‘Right of establishment’
Article 44 TFEU (ToL), renumbered Article 50 TFEU
1. In order to attain freedom of establishment as regards a particular activity, the European Parliament and the Council, acting in accordance with the ordinary legislative procedure and after consulting the Economic and Social Committee, shall act by means of directives.
2. The European Parliament, the Council and the Commission shall carry out the duties devolving upon them under the preceding provisions, in particular:
(a) by according, as a general rule, priority treatment to activities where freedom of establishment makes a particularly valuable contribution to the development of production and trade;
(b) by ensuring close cooperation between the competent authorities in the Member States in order to ascertain the particular situation within the Union of the various activities concerned;
(c) by abolishing those administrative procedures and practices, whether resulting from national legislation or from agreements previously concluded between Member States, the maintenance of which would form an obstacle to freedom of establishment;
(d) by ensuring that workers of one Member State employed in the territory of another Member State may remain in that territory for the purpose of taking up activities therein as self‑employed persons, where they satisfy the conditions which they would be required to satisfy if they were entering that State at the time when they intended to take up such activities;
(e) by enabling a national of one Member State to acquire and use land and buildings situated in the territory of another Member State, in so far as this does not conflict with the principles laid down in Article 33(2) [ToL, renumbered Article 39(2) TFEU];
(f) by effecting the progressive abolition of restrictions on freedom of establishment in every branch of activity under consideration, both as regards the conditions for setting up agencies, branches or subsidiaries in the territory of a Member State and as regards the subsidiaries in the territory of a Member State and as regards the conditions governing the entry of personnel belonging to the main establishment into managerial or supervisory posts in such agencies, branches or subsidiaries;
(g) by coordinating to the necessary extent the safeguards which, for the protection of the interests of members and other, are required by Member States of companies or firms within the meaning of the second paragraph of Article 48 [ToL, renumbered Article 54 TFEU] with a view to making such safeguards equivalent throughout the Union;
(h) by satisfying themselves that the conditions of establishment are not distorted by aids granted by Member States.
***
The corresponding provision of the draft Treaty establishing a Constitution for Europe was Article III-23. The European Convention named them ‘European framework laws’, but now and still according to the Lisbon Treaty they are known as ‘directives’. The referrals were naturally different, but otherwise the minimal changes were already there (OJ 18.7.2003 C 169/32).
***
The difference between the draft and the Treaty establishing a Constitution for Europe Article III-138 is ‘microscopic’.
***
One suggestion for further reading is the European Parliament’s factsheet ‘Freedom of establishment, freedom to provide services and mutual recognition of diplomas (last update 27 October 2006):
http://www.europarl.europa.eu/facts/3_2_3_en.htm
Ralf Grahn
Friday, 4 April 2008
EU TFEU: Right of establishment
Are you interested in working as a self-employed person, setting up shop in another EU country? Do you manage an agency, a branch or a subsidiary in another member state of the European Union?
The right of establishment, also known as the freedom of establishment, is an expression of the principle of free movement within the internal market.
The EU’s Treaty of Lisbon preserves your right of establishment on equal grounds.
***
In the Treaty of Lisbon (ToL) the intergovernmental conference (IGC 2007) has nothing substantial to say about Article 43 of the Treaty establishing the European Community (TEC). Cf. OJ 17.12.2007 C 306/54.
***
Unchanged does not mean unimportant, so we turn to the latest consolidated version of the existing treaties, in 29.12.2006 C 321 E/59:
CHAPTER 2
RIGHT OF ESTABLISHMENT
Article 43 TEC
Within the framework of the provisions set out below, restrictions on the freedom of establishment of nationals of a Member State in the territory of another Member State shall be prohibited. Such prohibition shall also apply to restrictions on the setting-up of agencies, branches or subsidiaries by nationals of any Member State established in the territory of any Member State.
Freedom of establishment shall include the right to take up and pursue activities as self-employed persons and to set up and manage undertakings, in particular companies or firms within the meaning of the second paragraph of Article 48, under the conditions laid down for its own nationals by the law of the country where such establishment is effected, subject to the provisions of the Chapter relating to capital.
***
Although there are no specific amendments, there are still details to check before we now for sure how the corresponding Article of the Treaty on the Functioning of the European Union (TFEU) is going to look according to the Lisbon Treaty.
The annexed Tables of equivalences tell us that we have arrived at a new chapter: Chapter 2 ‘Right of establishment’. They also tell us that Article 43 TEC first becomes Article 43 ToL, and later will be known under the new number Article 49 TFEU (17.12.2007 C 306/208).
As always, we have to watch out for possible horizontal amendments, mentioned on OJ 17.12.2007 C 306/41 and the following pages. (Here, there seem to be none.)
We notice a referral to another Article, which means that we have to check the numbering and that the referral remains substantially correct.
In order to make it easier to read this post on a stand-alone basis, we start by indicating the location of the Article (using the Tables of equivalences, OJ 17.12.2007 C 306/207-208).
***
Here is what the Article should look like, according to the Treaty of Lisbon:
Part Three ‘Policies and internal actions of the Union’
Title III (renumbered Title IV) ‘Free movement of persons, services and capital’
Chapter 2 ‘Right of establishment’
Article 43 TFEU (ToL), renumbered Article 49 TFEU
Within the framework of the provisions set out below, restrictions on the freedom of establishment of nationals of a Member State in the territory of another Member State shall be prohibited. Such prohibition shall also apply to restrictions on the setting-up of agencies, branches or subsidiaries by nationals of any Member State established in the territory of any Member State.
Freedom of establishment shall include the right to take up and pursue activities as self-employed persons and to set up and manage undertakings, in particular companies or firms within the meaning of the second paragraph of Article 48 [ToL, renumbered Article 54 TFEU], under the conditions laid down for its own nationals by the law of the country where such establishment is effected, subject to the provisions of the Chapter relating to capital.
***
In Article III-22 of the draft Treaty establishing a Constitution for Europe, the European spoke more directly to the potential entrepreneurs in the second subparagraph, without altering the substance of the provision (OJ 18.7.2003 C 169/32):
Subsection 2
Freedom of establishment
Article III-22 Draft Constitution
Within the framework of this Subsection, restrictions on the freedom of establishment of nationals of a Member State in the territory of another Member State shall be prohibited. Such prohibition shall also apply to restrictions on the setting-up of agencies, branches or subsidiaries by nationals of any Member State established in the territory of any Member State.
Nationals of a Member State shall have the right, in the territory of another Member State, to take up and pursue activities as self-employed persons and to set up and manage undertakings, in particular companies or firms within the meaning of the second paragraph of Article III-27, under the conditions laid down for its own nationals by the law of the Member State where such establishment is effected, subject to the provisions of the Section relating to capital.
***
The IGC 2004 took over the draft text in Article III-137 of the Treaty establishing a Constitution for Europe, with only technical adjustments (OJ 16.12.2004 C 310/61).
***
Even more focused on institutional questions and economical concerning amendments without substantial impact, the IGC 2007 reverted to the current TEC text.
From a reader’s point of view it was not a ‘failed Constitution’. Only ratification failed, and as a result we lost a host of small improvements, too, ending up with two slightly less well adapted treaties than the whole one on offer a few years ago.
***
This time, instead of suggesting further reading from the web, I would like to recommend turning to a textbook on the subject of freedom of establishment. An alternative in English is:
Josephine Steiner, Lorna Woods and Christian Twigg-Flesner: EU Law (Oxford University Press, Ninth Edition, 2006), pages 446 to 467.
Ralf Grahn
The right of establishment, also known as the freedom of establishment, is an expression of the principle of free movement within the internal market.
The EU’s Treaty of Lisbon preserves your right of establishment on equal grounds.
***
In the Treaty of Lisbon (ToL) the intergovernmental conference (IGC 2007) has nothing substantial to say about Article 43 of the Treaty establishing the European Community (TEC). Cf. OJ 17.12.2007 C 306/54.
***
Unchanged does not mean unimportant, so we turn to the latest consolidated version of the existing treaties, in 29.12.2006 C 321 E/59:
CHAPTER 2
RIGHT OF ESTABLISHMENT
Article 43 TEC
Within the framework of the provisions set out below, restrictions on the freedom of establishment of nationals of a Member State in the territory of another Member State shall be prohibited. Such prohibition shall also apply to restrictions on the setting-up of agencies, branches or subsidiaries by nationals of any Member State established in the territory of any Member State.
Freedom of establishment shall include the right to take up and pursue activities as self-employed persons and to set up and manage undertakings, in particular companies or firms within the meaning of the second paragraph of Article 48, under the conditions laid down for its own nationals by the law of the country where such establishment is effected, subject to the provisions of the Chapter relating to capital.
***
Although there are no specific amendments, there are still details to check before we now for sure how the corresponding Article of the Treaty on the Functioning of the European Union (TFEU) is going to look according to the Lisbon Treaty.
The annexed Tables of equivalences tell us that we have arrived at a new chapter: Chapter 2 ‘Right of establishment’. They also tell us that Article 43 TEC first becomes Article 43 ToL, and later will be known under the new number Article 49 TFEU (17.12.2007 C 306/208).
As always, we have to watch out for possible horizontal amendments, mentioned on OJ 17.12.2007 C 306/41 and the following pages. (Here, there seem to be none.)
We notice a referral to another Article, which means that we have to check the numbering and that the referral remains substantially correct.
In order to make it easier to read this post on a stand-alone basis, we start by indicating the location of the Article (using the Tables of equivalences, OJ 17.12.2007 C 306/207-208).
***
Here is what the Article should look like, according to the Treaty of Lisbon:
Part Three ‘Policies and internal actions of the Union’
Title III (renumbered Title IV) ‘Free movement of persons, services and capital’
Chapter 2 ‘Right of establishment’
Article 43 TFEU (ToL), renumbered Article 49 TFEU
Within the framework of the provisions set out below, restrictions on the freedom of establishment of nationals of a Member State in the territory of another Member State shall be prohibited. Such prohibition shall also apply to restrictions on the setting-up of agencies, branches or subsidiaries by nationals of any Member State established in the territory of any Member State.
Freedom of establishment shall include the right to take up and pursue activities as self-employed persons and to set up and manage undertakings, in particular companies or firms within the meaning of the second paragraph of Article 48 [ToL, renumbered Article 54 TFEU], under the conditions laid down for its own nationals by the law of the country where such establishment is effected, subject to the provisions of the Chapter relating to capital.
***
In Article III-22 of the draft Treaty establishing a Constitution for Europe, the European spoke more directly to the potential entrepreneurs in the second subparagraph, without altering the substance of the provision (OJ 18.7.2003 C 169/32):
Subsection 2
Freedom of establishment
Article III-22 Draft Constitution
Within the framework of this Subsection, restrictions on the freedom of establishment of nationals of a Member State in the territory of another Member State shall be prohibited. Such prohibition shall also apply to restrictions on the setting-up of agencies, branches or subsidiaries by nationals of any Member State established in the territory of any Member State.
Nationals of a Member State shall have the right, in the territory of another Member State, to take up and pursue activities as self-employed persons and to set up and manage undertakings, in particular companies or firms within the meaning of the second paragraph of Article III-27, under the conditions laid down for its own nationals by the law of the Member State where such establishment is effected, subject to the provisions of the Section relating to capital.
***
The IGC 2004 took over the draft text in Article III-137 of the Treaty establishing a Constitution for Europe, with only technical adjustments (OJ 16.12.2004 C 310/61).
***
Even more focused on institutional questions and economical concerning amendments without substantial impact, the IGC 2007 reverted to the current TEC text.
From a reader’s point of view it was not a ‘failed Constitution’. Only ratification failed, and as a result we lost a host of small improvements, too, ending up with two slightly less well adapted treaties than the whole one on offer a few years ago.
***
This time, instead of suggesting further reading from the web, I would like to recommend turning to a textbook on the subject of freedom of establishment. An alternative in English is:
Josephine Steiner, Lorna Woods and Christian Twigg-Flesner: EU Law (Oxford University Press, Ninth Edition, 2006), pages 446 to 467.
Ralf Grahn
Thursday, 3 April 2008
EU TFEU: Social security for migrant workers
Free movement for workers is one of the most important freedoms for ordinary citizens of the European Union, but if they lose their earned benefits this freedom becomes an empty shell. Only by adding (or more precisely, aggregating) these benefits can migrant workers really grab the opportunities offered by the common job market offered by the European Economic Area (EEA).
Social security benefits have to be calculated and paid across national borders to millions of workers and self-employed persons.
The EU Treaty of Lisbon lays the foundations for swifter and more comprehensive legislation on migrant workers’ rights by abolishing the requirement for unanimous Council acts, but qualified majority voting (QMV) is dampened by the installation of a so called emergency brake, which offers an obstructing member state the opportunity to postpone and ultimately scrap a proposal.
***
In the Treaty of Lisbon (ToL), under Free movement of workers, the intergovernmental conference (IGC 2007) made the following amendments to Article 42 of the Treaty establishing the European Community (TEC). See OJ 17.12.2007 C 306/54:
51) Article 42 shall be amended as follows:
(a) in the first paragraph, the words ‘migrant workers and their dependants:’ shall be replaced by ‘employed and self-employed migrant workers and their dependants:’;
(b) the last paragraph shall be replaced by the following:
‘Where a member of the Council declares that a draft legislative act referred to in the first subparagraph would affect important aspects of its social security system, including its scope, cost or financial structure, or would affect the financial balance of that system, it may request that the matter be referred to the European Council. In that case, the ordinary legislative procedure shall be suspended. After discussion, the European Council shall, within four months of this suspension, either:
(a) refer the draft back to the Council, which shall terminate the suspension of the ordinary legislative procedure; or
(b) take no action or request the Commission to submit a new proposal; in that case, the act originally proposed shall be deemed not to have been adopted.’.
***
Luckily, the Council has at least seen to that there is a consolidation of the current treaties, the TEU and the TEC, the latest one in OJ 29.12.2006 C 321 E/58-59, where we find Article 42 TEC as it is today:
Article 42 TEC
The Council shall, acting in accordance with the procedure referred to in Article 251, adopt such measures in the field of social security as are necessary to provide freedom of movement for workers; to this end, it shall make arrangements to secure for migrant workers and their dependants:
(a) aggregation, for the purpose of acquiring and retaining the right to benefit and of calculating the amount of benefit, of all periods taken into account under the laws of the several countries;
(b) payment of benefits to persons resident in the territories of Member States.
The Council shall act unanimously throughout the procedure referred to in Article 251.
***
Whilst looking forward to the belated consolidated versions of the Lisbon Treaty to be published by the Council in all the treaty languages 15 April 2008, we piece together the provision according to the instructions given.
The express amendments are straightforward, the horizontal amendments to be kept in mind (ordinary legislative procedure) and the new numbering inserted. Additionally, it is helpful to see the context of each Article.
We should end up with a provision looking like this:
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 42 TFEU (ToL), renumbered Article 48 TFEU
The European Parliament and the Council shall, acting in accordance with the ordinary legislative procedure, adopt such measures in the field of social security as are necessary to provide freedom of movement for workers; to this end, it shall make arrangements to secure for employed and self-employed migrant workers and their dependants:
(a) aggregation, for the purpose of acquiring and retaining the right to benefit and of calculating the amount of benefit, of all periods taken into account under the laws of the several countries;
(b) payment of benefits to persons resident in the territories of Member States.
Where a member of the Council declares that a draft legislative act referred to in the first subparagraph would affect important aspects of its social security system, including its scope, cost or financial structure, or would affect the financial balance of that system, it may request that the matter be referred to the European Council. In that case, the ordinary legislative procedure shall be suspended. After discussion, the European Council shall, within four months of this suspension, either:
(a) refer the draft back to the Council, which shall terminate the suspension of the ordinary legislative procedure; or
(b) take no action or request the Commission to submit a new proposal; in that case, the act originally proposed shall be deemed not to have been adopted.
***
I then check my result against four of those who already have offered the public readable consolidated versions, namely the almost perfect consolidated Lisbon Treaties of the IIEA (Peadar ó Broin), the FCO (Anonymous), Statewatch (Steve Peers) and ‘Der Vertrag von Lissabon’ (in German; Klemens H. Fischer).
Naturally, most people need only an accurate, readable text. They are advised to turn to one of the consolidations directly.
Since there is a daily demand for consolidated versions, there is a steady stream of visitors to this blog as a result of web searches. Sadly, many seem to stumble upon earlier and (even) less complete posts.
Therefore, I take the opportunity to refer the interested readers to my latest post on existing consolidated language versions ‘Consolidated EU Lisbon Treaty Update 29 March 2008’, and to the links presented in that post.
If kind readers bring other consolidations, official documents or secondary literature on the Lisbon Treaty to my attention, there may be cause for coming updates.
***
The objective of this blog is to offer the reader the tools to compare the current treaties Article by Article with the Lisbon Treaty, including the preceding steps, the draft Constitution and the Constitutional Treaty. (Depending on the situation, some suggestions for further reading may be offered about the politics and secondary legislation in question.)
***
Thus, our following stop is the European Convention and its draft Treaty establishing a Constitution for Europe. The proposed Article III-21 looked like this (OJ 18.7.2003 C 169/31):
Article III-21 Draft Constitution
In the field of social security, European laws or framework laws shall establish such measures as are necessary to bring about freedom of movement for workers by introducing a system to secure for employed and self-employed migrant workers and their dependants:
(a) aggregation, for the purpose of acquiring and retaining the right to benefit and of calculating the amount of benefit, of all periods taken into account under the laws of the several countries;
(b) payment of benefits to persons resident in the territories of Member States.
***
This is one instance where the IGC 2004 did not content itself with giving the work of the European Convention its blessing. Article III-136 of the Treaty establishing a Constitution for Europe introduced new elements (OJ 16.12.2004 C 310/60):
Article III-136 Constitution
1. In the field of social security, European laws or framework laws shall establish such measures as are necessary to bring about freedom of movement for workers by making arrangements to secure for employed and self-employed migrant workers and their dependants:
(a) aggregation, for the purpose of acquiring and retaining the right to benefit and of calculating the amount of benefit, of all periods taken into account under the laws of the different countries;
(b) payment of benefits to persons resident in the territories of Member States.
2. Where a member of the Council considers that a draft European law or framework law referred to in paragraph 1 would affect fundamental aspects of its social security system, including its scope, cost or financial structure, or would affect the financial balance of that system, it may request that the matter be referred to the European Council. In that case, the procedure referred to in Article III-396 shall be suspended. After discussion, the European Council shall, within four months of this suspension, either:
(a) refer the draft back to the Council, which shall terminate the suspension of the procedure referred to in Article III-396, or
(b) request the Commission to submit a new proposal; in that case, the act originally proposed shall be deemed not to have been adopted.
***
You now have the materials at your disposal for your comparison of the different stages of the treaty reform process.
Here are a few comments on the similarities and differences to get you going:
The draft Constitution used clearer and more expressive terms for legislative acts, so ‘European laws or framework laws’ made their appearance here, too, instead of the less elegant ‘procedure referred to in Article 251’ standing for co-decision.
The beef of the European Conventions proposal was, however, dropping the text of Article 42(2) TEC with the required unanimity in the Council ‘throughout’. This paved the way for qualified majority voting (QMV) in the Council in order to better safeguard the interests of migrant workers.
In principle, adding ‘employed and self-employed’ to migrant workers and their dependants broadened the scope of the draft Constitution provision.
***
The IGC 2004 was more cautious in its approach. ‘Making arrangements’ can be seen as less ambitious than ‘introducing a system’ to secure migrant workers’ benefits, in the first paragraph. ‘Several’ or ‘different’ countries should not make any material difference.
But the real indication of some member states’ apprehension was the added second paragraph. The IGC 2004 introduced the so called emergency brake, which meant that any member state could refer a proposed legislative act to the European Council if it felt that it would ‘affect fundamental aspects of its social security system, including its scope, cost or financial structure, or would affect the financial balance of that system’ or ‘the financial balance of that system’.
This would, in effect, remove a question referred from QMV to the unanimous decision making of the European Council, although such a question would plausibly have to ‘affect fundamental aspects’ of the social security system of the referring member state.
In four months, the European Council unanimously was to give a green light for the Council to go ahead or scrap the proposal (and request a new and neutered one).
***
The Lisbon Treaty retains the scope of both employed and self-employed (and their dependants) as well as the ordinary legislative procedure of the Constitution as the main procedural rule. But the IGC 2007 lowered the bar for referral compared to the Constitution by replacing ‘fundamental aspects’ by ‘important’ ones, making it less burdensome for an obstructing member state to argue its case for referral politically, although all it really would have taken and takes is the determination of a member state to issue a declaration.
***
One detail, of minor importance, is the the position of the word ‘shall’ in the sentences about acting in accordance with the ordinary legislative procedure. With no firm indications (point 2(c)) the consolidations (and I) have reached different conclusions along the way, but when the official unofficial consolidated versions appear (for illustrative purposes) we will follow their wording.
In the IIEA consolidation I have noticed a small, recurring omission. In essence, it is no problem, since the ordinary legislative procedure entails the participation of the European Parliament and the Council, but in some instances among the insidious horizontal amendments the words ‘the European Parliament and’ have not been inserted.
As I said earlier, as far as I have advanced, I have found the consolidated versions I have used to be highly reliable, ‘almost perfect’.
People may have different opinions about the blessings or dangers of the Lisbon Treaty, but these sources are dependable.
***
Just in case someone believes that the governments of the member states (IGC 2007) take matters concerning their coffers lightly, or that the European Council could escape the strictures of unanimity in case of referral (the emergency brake), two joint declarations have been attached to the Lisbon Treaty (Final Act, OJ 17.12.2007 C 306/256):
22. Declaration on Articles 42 and 63a of the Treaty on the Functioning of the European Union
The Conference considers that in the event that a draft legislative act based on Article 69 A(2) would affect important aspects of the social security system of a Member State, including its scope, cost or financial structure, or would affect the financial balance of that system as set out in the second paragraph of Article 42, the interests of that Member State will be duly taken into account.
23. Declaration on the second paragraph of Article 42 of the Treaty on the Functioning of the European Union
The Conference recalls that in that case, in accordance with Article 9 B(4) of the Treaty on European Union, the European Council acts by consensus.
***
A brief history of social security benefits is presented on the European Parliament’s web page ‘Social security for migrant workers’ (last update 22 February 2001):
http://www.europarl.europa.eu/factsheets/4_8_4_en.htm
The Commission’s Scadplus pages, with summaries of legislation, offer later information on the page ‘Social security schemes and free movement of persons: Basic Regulation’, last updated 25 June 2007:
http://europa.eu/scadplus/leg/en/cha/c10516.htm
Ralf Grahn
Social security benefits have to be calculated and paid across national borders to millions of workers and self-employed persons.
The EU Treaty of Lisbon lays the foundations for swifter and more comprehensive legislation on migrant workers’ rights by abolishing the requirement for unanimous Council acts, but qualified majority voting (QMV) is dampened by the installation of a so called emergency brake, which offers an obstructing member state the opportunity to postpone and ultimately scrap a proposal.
***
In the Treaty of Lisbon (ToL), under Free movement of workers, the intergovernmental conference (IGC 2007) made the following amendments to Article 42 of the Treaty establishing the European Community (TEC). See OJ 17.12.2007 C 306/54:
51) Article 42 shall be amended as follows:
(a) in the first paragraph, the words ‘migrant workers and their dependants:’ shall be replaced by ‘employed and self-employed migrant workers and their dependants:’;
(b) the last paragraph shall be replaced by the following:
‘Where a member of the Council declares that a draft legislative act referred to in the first subparagraph would affect important aspects of its social security system, including its scope, cost or financial structure, or would affect the financial balance of that system, it may request that the matter be referred to the European Council. In that case, the ordinary legislative procedure shall be suspended. After discussion, the European Council shall, within four months of this suspension, either:
(a) refer the draft back to the Council, which shall terminate the suspension of the ordinary legislative procedure; or
(b) take no action or request the Commission to submit a new proposal; in that case, the act originally proposed shall be deemed not to have been adopted.’.
***
Luckily, the Council has at least seen to that there is a consolidation of the current treaties, the TEU and the TEC, the latest one in OJ 29.12.2006 C 321 E/58-59, where we find Article 42 TEC as it is today:
Article 42 TEC
The Council shall, acting in accordance with the procedure referred to in Article 251, adopt such measures in the field of social security as are necessary to provide freedom of movement for workers; to this end, it shall make arrangements to secure for migrant workers and their dependants:
(a) aggregation, for the purpose of acquiring and retaining the right to benefit and of calculating the amount of benefit, of all periods taken into account under the laws of the several countries;
(b) payment of benefits to persons resident in the territories of Member States.
The Council shall act unanimously throughout the procedure referred to in Article 251.
***
Whilst looking forward to the belated consolidated versions of the Lisbon Treaty to be published by the Council in all the treaty languages 15 April 2008, we piece together the provision according to the instructions given.
The express amendments are straightforward, the horizontal amendments to be kept in mind (ordinary legislative procedure) and the new numbering inserted. Additionally, it is helpful to see the context of each Article.
We should end up with a provision looking like this:
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 42 TFEU (ToL), renumbered Article 48 TFEU
The European Parliament and the Council shall, acting in accordance with the ordinary legislative procedure, adopt such measures in the field of social security as are necessary to provide freedom of movement for workers; to this end, it shall make arrangements to secure for employed and self-employed migrant workers and their dependants:
(a) aggregation, for the purpose of acquiring and retaining the right to benefit and of calculating the amount of benefit, of all periods taken into account under the laws of the several countries;
(b) payment of benefits to persons resident in the territories of Member States.
Where a member of the Council declares that a draft legislative act referred to in the first subparagraph would affect important aspects of its social security system, including its scope, cost or financial structure, or would affect the financial balance of that system, it may request that the matter be referred to the European Council. In that case, the ordinary legislative procedure shall be suspended. After discussion, the European Council shall, within four months of this suspension, either:
(a) refer the draft back to the Council, which shall terminate the suspension of the ordinary legislative procedure; or
(b) take no action or request the Commission to submit a new proposal; in that case, the act originally proposed shall be deemed not to have been adopted.
***
I then check my result against four of those who already have offered the public readable consolidated versions, namely the almost perfect consolidated Lisbon Treaties of the IIEA (Peadar ó Broin), the FCO (Anonymous), Statewatch (Steve Peers) and ‘Der Vertrag von Lissabon’ (in German; Klemens H. Fischer).
Naturally, most people need only an accurate, readable text. They are advised to turn to one of the consolidations directly.
Since there is a daily demand for consolidated versions, there is a steady stream of visitors to this blog as a result of web searches. Sadly, many seem to stumble upon earlier and (even) less complete posts.
Therefore, I take the opportunity to refer the interested readers to my latest post on existing consolidated language versions ‘Consolidated EU Lisbon Treaty Update 29 March 2008’, and to the links presented in that post.
If kind readers bring other consolidations, official documents or secondary literature on the Lisbon Treaty to my attention, there may be cause for coming updates.
***
The objective of this blog is to offer the reader the tools to compare the current treaties Article by Article with the Lisbon Treaty, including the preceding steps, the draft Constitution and the Constitutional Treaty. (Depending on the situation, some suggestions for further reading may be offered about the politics and secondary legislation in question.)
***
Thus, our following stop is the European Convention and its draft Treaty establishing a Constitution for Europe. The proposed Article III-21 looked like this (OJ 18.7.2003 C 169/31):
Article III-21 Draft Constitution
In the field of social security, European laws or framework laws shall establish such measures as are necessary to bring about freedom of movement for workers by introducing a system to secure for employed and self-employed migrant workers and their dependants:
(a) aggregation, for the purpose of acquiring and retaining the right to benefit and of calculating the amount of benefit, of all periods taken into account under the laws of the several countries;
(b) payment of benefits to persons resident in the territories of Member States.
***
This is one instance where the IGC 2004 did not content itself with giving the work of the European Convention its blessing. Article III-136 of the Treaty establishing a Constitution for Europe introduced new elements (OJ 16.12.2004 C 310/60):
Article III-136 Constitution
1. In the field of social security, European laws or framework laws shall establish such measures as are necessary to bring about freedom of movement for workers by making arrangements to secure for employed and self-employed migrant workers and their dependants:
(a) aggregation, for the purpose of acquiring and retaining the right to benefit and of calculating the amount of benefit, of all periods taken into account under the laws of the different countries;
(b) payment of benefits to persons resident in the territories of Member States.
2. Where a member of the Council considers that a draft European law or framework law referred to in paragraph 1 would affect fundamental aspects of its social security system, including its scope, cost or financial structure, or would affect the financial balance of that system, it may request that the matter be referred to the European Council. In that case, the procedure referred to in Article III-396 shall be suspended. After discussion, the European Council shall, within four months of this suspension, either:
(a) refer the draft back to the Council, which shall terminate the suspension of the procedure referred to in Article III-396, or
(b) request the Commission to submit a new proposal; in that case, the act originally proposed shall be deemed not to have been adopted.
***
You now have the materials at your disposal for your comparison of the different stages of the treaty reform process.
Here are a few comments on the similarities and differences to get you going:
The draft Constitution used clearer and more expressive terms for legislative acts, so ‘European laws or framework laws’ made their appearance here, too, instead of the less elegant ‘procedure referred to in Article 251’ standing for co-decision.
The beef of the European Conventions proposal was, however, dropping the text of Article 42(2) TEC with the required unanimity in the Council ‘throughout’. This paved the way for qualified majority voting (QMV) in the Council in order to better safeguard the interests of migrant workers.
In principle, adding ‘employed and self-employed’ to migrant workers and their dependants broadened the scope of the draft Constitution provision.
***
The IGC 2004 was more cautious in its approach. ‘Making arrangements’ can be seen as less ambitious than ‘introducing a system’ to secure migrant workers’ benefits, in the first paragraph. ‘Several’ or ‘different’ countries should not make any material difference.
But the real indication of some member states’ apprehension was the added second paragraph. The IGC 2004 introduced the so called emergency brake, which meant that any member state could refer a proposed legislative act to the European Council if it felt that it would ‘affect fundamental aspects of its social security system, including its scope, cost or financial structure, or would affect the financial balance of that system’ or ‘the financial balance of that system’.
This would, in effect, remove a question referred from QMV to the unanimous decision making of the European Council, although such a question would plausibly have to ‘affect fundamental aspects’ of the social security system of the referring member state.
In four months, the European Council unanimously was to give a green light for the Council to go ahead or scrap the proposal (and request a new and neutered one).
***
The Lisbon Treaty retains the scope of both employed and self-employed (and their dependants) as well as the ordinary legislative procedure of the Constitution as the main procedural rule. But the IGC 2007 lowered the bar for referral compared to the Constitution by replacing ‘fundamental aspects’ by ‘important’ ones, making it less burdensome for an obstructing member state to argue its case for referral politically, although all it really would have taken and takes is the determination of a member state to issue a declaration.
***
One detail, of minor importance, is the the position of the word ‘shall’ in the sentences about acting in accordance with the ordinary legislative procedure. With no firm indications (point 2(c)) the consolidations (and I) have reached different conclusions along the way, but when the official unofficial consolidated versions appear (for illustrative purposes) we will follow their wording.
In the IIEA consolidation I have noticed a small, recurring omission. In essence, it is no problem, since the ordinary legislative procedure entails the participation of the European Parliament and the Council, but in some instances among the insidious horizontal amendments the words ‘the European Parliament and’ have not been inserted.
As I said earlier, as far as I have advanced, I have found the consolidated versions I have used to be highly reliable, ‘almost perfect’.
People may have different opinions about the blessings or dangers of the Lisbon Treaty, but these sources are dependable.
***
Just in case someone believes that the governments of the member states (IGC 2007) take matters concerning their coffers lightly, or that the European Council could escape the strictures of unanimity in case of referral (the emergency brake), two joint declarations have been attached to the Lisbon Treaty (Final Act, OJ 17.12.2007 C 306/256):
22. Declaration on Articles 42 and 63a of the Treaty on the Functioning of the European Union
The Conference considers that in the event that a draft legislative act based on Article 69 A(2) would affect important aspects of the social security system of a Member State, including its scope, cost or financial structure, or would affect the financial balance of that system as set out in the second paragraph of Article 42, the interests of that Member State will be duly taken into account.
23. Declaration on the second paragraph of Article 42 of the Treaty on the Functioning of the European Union
The Conference recalls that in that case, in accordance with Article 9 B(4) of the Treaty on European Union, the European Council acts by consensus.
***
A brief history of social security benefits is presented on the European Parliament’s web page ‘Social security for migrant workers’ (last update 22 February 2001):
http://www.europarl.europa.eu/factsheets/4_8_4_en.htm
The Commission’s Scadplus pages, with summaries of legislation, offer later information on the page ‘Social security schemes and free movement of persons: Basic Regulation’, last updated 25 June 2007:
http://europa.eu/scadplus/leg/en/cha/c10516.htm
Ralf Grahn
Wednesday, 2 April 2008
Alex Stubb: From MEP to Foreign Minister
When Ilkka Kanerva was forced to quit as Minister for Foreign Affairs of Finland, the (Conservative) Coalition Party quickly called in a representative of a younger generation, Alexander Stubb, who is known as an active member of the EPP group in the European Parliament.
Annamari Sipilä, who works as Brussels correspondent for the biggest Finnish daily newspaper, Helsingin Sanomat, has written a profile of Stubb, officially to take office on Friday.
The story can be found in Helsingin Sanomat’s International Edition under the heading ‘Profile: Alex Stubb is too smart to make trouble’ (Updated 2 April 2008):
http://www.hs.fi/english/article/-/1135235241884
Stubb’s rapid career and thorough grounding – both practical and academic – in European Union politics may be of interest to a wider readership outside Finland.
Ralf Grahn
Annamari Sipilä, who works as Brussels correspondent for the biggest Finnish daily newspaper, Helsingin Sanomat, has written a profile of Stubb, officially to take office on Friday.
The story can be found in Helsingin Sanomat’s International Edition under the heading ‘Profile: Alex Stubb is too smart to make trouble’ (Updated 2 April 2008):
http://www.hs.fi/english/article/-/1135235241884
Stubb’s rapid career and thorough grounding – both practical and academic – in European Union politics may be of interest to a wider readership outside Finland.
Ralf Grahn
EU TFEU: Exchange of young workers
Free movement of workers within the European Community (European Union) includes the idea to promote the mobility of young workers. We look at how this idea is expressed in the EU Treaty of Lisbon.
With 23 different treaty languages, we look at some questions concerning translation of both treaties and other texts within the context of the European Union.
Finally, we are left wondering if the provision we are about to discuss has been left hanging in the air, because the actions seem to be carried out in another context.
***
Article 41 of the Treaty establishing the European Community (TEC) is one of the provisions bypassed silently by the intergovernmental conference in the Treaty of Lisbon (ToL). Cf. OJ 17.12.2007 C 306/54.
We turn to the latest consolidated version of the treaties, TEU and TEC, in OJ 29.12.2006 C 321 E/58 for the current Article:
Article 41 TEC
Member States shall, within the framework of a joint programme, encourage the exchange of young workers.
***
There are no express amendments, and there seem to be no horizontal amendments to take into account either (cf. OJ 17.12.2007 C 306/41-44). We add the location of the provision and the future renumbering with the help of the annexed Tables of equivalences referred to in Article 5 of the Treaty of Lisbon (OJ 17.12.2007 C 306/207-208) to arrive at the Article according to the Treaty on the Functioning of the European Union (TFEU):
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 41 TFEU (ToL), renumbered Article 47 TFEU
Member States shall, within the framework of a joint programme, encourage the exchange of young workers.
***
There was no change of wording in the English language version of Article III-20 of the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/31).
In English, Article III-135 of the Treaty establishing a Constitution for Europe was unchanged, too (OJ 16.12.2004 C 310/60).
***
Translation
Translating is a necessary activity within the European Community (European Union), and dealing with translated texts is unavoidable if Community legislation and other written information is part of your work or studies.
Just as an illustration of the complexity with several treaty languages (now 23), I offer you two examples I stumbled upon while looking at this provision, as well as an added comparison.
***
Spanish
Article 41 “TEC”
Artículo 41
Los Estados miembros facilitarán, en el marco de un programa común, el intercambio de trabajadores jóvenes.
Article III-20 “Draft Treaty”
Artículo III-20
Los Estados miembros facilitarán, en el marco de un programa común, el intercambio de trabajadores jóvenes.
Article III-135 “Constitution”
Artículo III-135
Los Estados miembros propiciarán, en el marco de un programa común, el intercambio de trabajadores jóvenes.
“ToL TFEU”
Silence
We notice that nothing is said in the Lisbon Treaty, so its wording is the same as the current TEC. Still, between the draft Constitution and the Constitutional Treaty ‘facilitarán’ became ‘propiciarán’ before reverting to the existing wording. In other words, during the IGC 2004 someone made a decision to express the meaning by a different word.
***
German
Article 41 “TEC”
Artikel 41
Die Mitgliedstaaten fördern den Austausch junger Arbeitskräfte im Rahmen eines gemeinsamen Programms.
Article III-20 ”Draft Treaty”
Artikel III-20
Die Mitgliedstaaten fördern den Austausch junger Arbeitnehmer im Rahmen eines gemeinsamen Programms.
Article III-135 “Constitution”
Artikel III-135
Die Mitgliedstaaten fördern den Austausch junger Arbeitnehmer im Rahmen eines gemeinsamen Programms.
“ToL TFEU”
Silence
‘Of young workers’ is rendered as ‘junger Arbeitskräfte’ in the current TEC and the coming Lisbon Treaty, but both the draft Constitution and the Constitutional Treaty used the expression ‘junger Arbeitnehmer’, which could have a more restrictive meaning.
***
French
Article 41 “TEC”
Article 41
Les États membres favorisent, dans le cadre d’un programme commun, l’échange de jeunes travailleurs.
Article III-20 “Draft Treaty”
Article III-20
Les États membres favorisent, dans le cadre d'un programme commun, l'échange de jeunes travailleurs.
Article III-135 “Constitution”
Article III-135
Les États membres favorisent, dans le cadre d'un programme commun, l'échange de jeunes travailleurs.
“ToL TFEU”
Silence
In the French version neither the verb ‘favorisent’ nor the ‘jeunes travailleurs’ have changed along the way. Earlier we saw that the English version remained the same throughout.
***
There are certainly people more competent than I am to discuss the difficulties of presenting the intended meaning in different languages, but I mention a few questions for thought and comment:
We have noted that the French and English language versions have remained unchanged, but how well do ‘favorisent’ and ‘encourage’ express the same meaning?
How much should be read into a change of expression, like ‘propiciarán’ instead of ‘facilitarán’ or ‘junger Arbeitnehmer’ instead of ‘junger Arbeitskräfte’, in isolation from other (unchanged) language versions?
If in doubt, should other language versions be consulted?
If each treaty language is equally authentic, which of them should be compared if you want to get the exact meaning?
If the treaties – arguably the most important documents of the European Union – are given meticulous care, how much more differences are there in day to day texts, say press releases from the European Parliament?
***
The discussion above was academic in the sense that the current and the coming treaty provisions remain the same in the four languages mentioned. Insofar as they express the same meaning now, they will continue to do so.
***
Back to the contents of the Article.
Article 41 TFEU (ToL), renumbered Article 47 TFEU, is interesting in that it does not clearly address the question who should carry on the joint programme. Is it intended to be an activity of the European Community (European Union), or does it invite the governments of the member states to agree on and administer such a programme separately?
The second observation is that currently there seems to be no specific programme based on this Article, especially if by ‘young workers’ one means people employed (‘Arbeitnehmer’).
Within the context of vocational training there have been Leonardo da Vinci programmes, with the current one as one of four sectoral programmes under the heading of the Lifelong Learning Programme 2007 – 2013:
http://ec.europa.eu/education/programmes/newprog/index_en.html
Decision No. 1720/2006/EC of the European Parliament and the Council of 15 November 2006, establishing an action programme in the field of lifelong learning (OJ 24.11.2006 L 327/45) does not mention Article 41 TEC as a legal basis.
Article 3 of the Decision mentions the sectoral sub-programmes, including the Leonardo da Vinci programme:
Article 3
Sub-programmes
1. The sectoral sub-programmes shall be the following:
---
(c) the Leonardo da Vinci programme, which shall address the teaching and learning needs of all those in vocational education and training, other than at tertiary level, as well as the institutions and organisations providing or facilitating such education and training;
---
Chapter III of the Decision (Articles 24 to 27) deals with access to, objectives and actions of as well as amounts allocated to the Leonardo da Vinci programme. The programme is aimed at, among others, people learning in all forms of vocational training and training (except at tertiary level) and people in the labour market. One of the objectives is to enhance the attractiveness of vocational education and training and mobility for employers and individuals and to facilitate the mobility of working trainees. An operational objective is to increase placements in enterprises to at least 80000 per year by the end of the Lifelong Learning Programme.
Ralf Grahn
With 23 different treaty languages, we look at some questions concerning translation of both treaties and other texts within the context of the European Union.
Finally, we are left wondering if the provision we are about to discuss has been left hanging in the air, because the actions seem to be carried out in another context.
***
Article 41 of the Treaty establishing the European Community (TEC) is one of the provisions bypassed silently by the intergovernmental conference in the Treaty of Lisbon (ToL). Cf. OJ 17.12.2007 C 306/54.
We turn to the latest consolidated version of the treaties, TEU and TEC, in OJ 29.12.2006 C 321 E/58 for the current Article:
Article 41 TEC
Member States shall, within the framework of a joint programme, encourage the exchange of young workers.
***
There are no express amendments, and there seem to be no horizontal amendments to take into account either (cf. OJ 17.12.2007 C 306/41-44). We add the location of the provision and the future renumbering with the help of the annexed Tables of equivalences referred to in Article 5 of the Treaty of Lisbon (OJ 17.12.2007 C 306/207-208) to arrive at the Article according to the Treaty on the Functioning of the European Union (TFEU):
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 41 TFEU (ToL), renumbered Article 47 TFEU
Member States shall, within the framework of a joint programme, encourage the exchange of young workers.
***
There was no change of wording in the English language version of Article III-20 of the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/31).
In English, Article III-135 of the Treaty establishing a Constitution for Europe was unchanged, too (OJ 16.12.2004 C 310/60).
***
Translation
Translating is a necessary activity within the European Community (European Union), and dealing with translated texts is unavoidable if Community legislation and other written information is part of your work or studies.
Just as an illustration of the complexity with several treaty languages (now 23), I offer you two examples I stumbled upon while looking at this provision, as well as an added comparison.
***
Spanish
Article 41 “TEC”
Artículo 41
Los Estados miembros facilitarán, en el marco de un programa común, el intercambio de trabajadores jóvenes.
Article III-20 “Draft Treaty”
Artículo III-20
Los Estados miembros facilitarán, en el marco de un programa común, el intercambio de trabajadores jóvenes.
Article III-135 “Constitution”
Artículo III-135
Los Estados miembros propiciarán, en el marco de un programa común, el intercambio de trabajadores jóvenes.
“ToL TFEU”
Silence
We notice that nothing is said in the Lisbon Treaty, so its wording is the same as the current TEC. Still, between the draft Constitution and the Constitutional Treaty ‘facilitarán’ became ‘propiciarán’ before reverting to the existing wording. In other words, during the IGC 2004 someone made a decision to express the meaning by a different word.
***
German
Article 41 “TEC”
Artikel 41
Die Mitgliedstaaten fördern den Austausch junger Arbeitskräfte im Rahmen eines gemeinsamen Programms.
Article III-20 ”Draft Treaty”
Artikel III-20
Die Mitgliedstaaten fördern den Austausch junger Arbeitnehmer im Rahmen eines gemeinsamen Programms.
Article III-135 “Constitution”
Artikel III-135
Die Mitgliedstaaten fördern den Austausch junger Arbeitnehmer im Rahmen eines gemeinsamen Programms.
“ToL TFEU”
Silence
‘Of young workers’ is rendered as ‘junger Arbeitskräfte’ in the current TEC and the coming Lisbon Treaty, but both the draft Constitution and the Constitutional Treaty used the expression ‘junger Arbeitnehmer’, which could have a more restrictive meaning.
***
French
Article 41 “TEC”
Article 41
Les États membres favorisent, dans le cadre d’un programme commun, l’échange de jeunes travailleurs.
Article III-20 “Draft Treaty”
Article III-20
Les États membres favorisent, dans le cadre d'un programme commun, l'échange de jeunes travailleurs.
Article III-135 “Constitution”
Article III-135
Les États membres favorisent, dans le cadre d'un programme commun, l'échange de jeunes travailleurs.
“ToL TFEU”
Silence
In the French version neither the verb ‘favorisent’ nor the ‘jeunes travailleurs’ have changed along the way. Earlier we saw that the English version remained the same throughout.
***
There are certainly people more competent than I am to discuss the difficulties of presenting the intended meaning in different languages, but I mention a few questions for thought and comment:
We have noted that the French and English language versions have remained unchanged, but how well do ‘favorisent’ and ‘encourage’ express the same meaning?
How much should be read into a change of expression, like ‘propiciarán’ instead of ‘facilitarán’ or ‘junger Arbeitnehmer’ instead of ‘junger Arbeitskräfte’, in isolation from other (unchanged) language versions?
If in doubt, should other language versions be consulted?
If each treaty language is equally authentic, which of them should be compared if you want to get the exact meaning?
If the treaties – arguably the most important documents of the European Union – are given meticulous care, how much more differences are there in day to day texts, say press releases from the European Parliament?
***
The discussion above was academic in the sense that the current and the coming treaty provisions remain the same in the four languages mentioned. Insofar as they express the same meaning now, they will continue to do so.
***
Back to the contents of the Article.
Article 41 TFEU (ToL), renumbered Article 47 TFEU, is interesting in that it does not clearly address the question who should carry on the joint programme. Is it intended to be an activity of the European Community (European Union), or does it invite the governments of the member states to agree on and administer such a programme separately?
The second observation is that currently there seems to be no specific programme based on this Article, especially if by ‘young workers’ one means people employed (‘Arbeitnehmer’).
Within the context of vocational training there have been Leonardo da Vinci programmes, with the current one as one of four sectoral programmes under the heading of the Lifelong Learning Programme 2007 – 2013:
http://ec.europa.eu/education/programmes/newprog/index_en.html
Decision No. 1720/2006/EC of the European Parliament and the Council of 15 November 2006, establishing an action programme in the field of lifelong learning (OJ 24.11.2006 L 327/45) does not mention Article 41 TEC as a legal basis.
Article 3 of the Decision mentions the sectoral sub-programmes, including the Leonardo da Vinci programme:
Article 3
Sub-programmes
1. The sectoral sub-programmes shall be the following:
---
(c) the Leonardo da Vinci programme, which shall address the teaching and learning needs of all those in vocational education and training, other than at tertiary level, as well as the institutions and organisations providing or facilitating such education and training;
---
Chapter III of the Decision (Articles 24 to 27) deals with access to, objectives and actions of as well as amounts allocated to the Leonardo da Vinci programme. The programme is aimed at, among others, people learning in all forms of vocational training and training (except at tertiary level) and people in the labour market. One of the objectives is to enhance the attractiveness of vocational education and training and mobility for employers and individuals and to facilitate the mobility of working trainees. An operational objective is to increase placements in enterprises to at least 80000 per year by the end of the Lifelong Learning Programme.
Ralf Grahn
Tuesday, 1 April 2008
EU TFEU: Legislating free movement for workers
With about 500 million people the European Economic Area (EEA) offers opportunities for employees and employers, if the conditions are right for labour mobility.
According to the Lisbon Treaty the European Parliament and the Council can legislate to facilitate the free movement for migrant workers, abolishing restrictions and improving job-search.
***
Article 40 of the Treaty establishing the European Community (TEC) is one of those without specific amendments in the Treaty on the Functioning of the European Union (TFEU), brought about by the intergovernmental conference (IGC 2007) in the Treaty of Lisbon (ToL). Cf. OJ 17.12.2007 C 306/54.
***
This leads us to believe that there is cause to look up the current provision, presented in the latest consolidated version of the TEU and the TEC in OJ 29.12.2006 C 321 E/58:
Article 40 TEC
The Council shall, acting in accordance with the procedure referred to in Article 251 and after consulting the Economic and Social Committee, issue directives or make regulations setting out the measures required to bring about freedom of movement for workers, as defined in Article 39, in particular:
(a) by ensuring close cooperation between national employment services;
(b) by abolishing those administrative procedures and practices and those qualifying periods in respect of eligibility for available employment, whether resulting from national legislation or from agreements previously concluded between Member States, the maintenance of which would form an obstacle to liberalisation of the movement of workers;
(c) by abolishing all such qualifying periods and other restrictions provided for either under national legislation or under agreements previously concluded between Member States as imposed on workers of other Member States conditions regarding the free choice of employment other than those imposed on workers of the State concerned;
(d) by setting up appropriate machinery to bring offers of employment into touch with applications for employment and to facilitate the achievement of a balance between supply and demand in the employment market in such a way as to avoid serious threats to the standard of living and level of employment in the various regions and industries.
***
If there are no express amendments, we still have to look out for possible horizontal amendments (here 2(c), OJ 17.12.2007 C 306/41) and the renumbering of Articles in question as well as those referred to (OJ 17.12.2007 C 306/208). In addition, to get a sense of the framework, it is helpful to check the location of the provision (Tables of equivalences, OJ 17.12.2007 C 306/207-208). These exercises lead us to what should be the treaty basis when the Lisbon Treaty has entered into force:
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 40 TFEU (ToL), renumbered Article 46 TFEU
The European Parliament and the Council shall, acting in accordance with the ordinary legislative procedure and after consulting the Economic and Social Committee, issue directives or make regulations setting out the measures required to bring about freedom of movement for workers, as defined in Article 39 [ToL, renumbered Article 45 TFEU], in particular:
(a) by ensuring close cooperation between national employment services;
(b) by abolishing those administrative procedures and practices and those qualifying periods in respect of eligibility for available employment, whether resulting from national legislation or from agreements previously concluded between Member States, the maintenance of which would form an obstacle to liberalisation of the movement of workers;
(c) by abolishing all such qualifying periods and other restrictions provided for either under national legislation or under agreements previously concluded between Member States as imposed on workers of other Member States conditions regarding the free choice of employment other than those imposed on workers of the State concerned;
(d) by setting up appropriate machinery to bring offers of employment into touch with applications for employment and to facilitate the achievement of a balance between supply and demand in the employment market in such a way as to avoid serious threats to the standard of living and level of employment in the various regions and industries.
***
The European Convention to change the substance in Article III-19 of the draft Treaty establishing a Constitution for Europe, but its wording was more straightforward and the legislative instruments were clearer (OJ 18.7.2007 C 169/31).
***
Article III-134 of the Treaty establishing a Constitution for Europe took over the draft text (OJ 16.12.2004 C 310/59-60), but the IGC 2007 opting for ‘Constitution light’ chose not to burden the Lisbon Treaty with such minimal amendments without material bearing.
***
Article 39 TFEU (ToL), renumbered Article 45 TFEU, carries much of its own weight, because the principles of free movement and non-discrimination lend themselves to direct application. Therefore there is less need for the legal base in Article 40 TFEU (ToL), renumbered Article 46 TFEU, than might appear at a first glance.
Another ground for the diminishing importance of specific rules on workers’ free movement is the growing importance of EU citizenship as the basis for individuals’ rights in the European Community (European Union) as a whole.
Because the free movement for workers is the one of the four freedoms potentially concerning the largest group of European citizens, it is somewhat disconcerting that many of the old member states raised barriers against migrant workers from ten new Central European member states in the Accession Treaties for fairly long transitional periods.
If illegal immigration from outside the European Union is seen by many as a potential source of difficulties, surely offering both employees and employers within the European Union improved legal possibilities to match offer and demand should be preferred?
One of the measures to strive for balance between supply and demand is EURES, the European Job Mobility Portal:
http://europa.eu.int/eures/home.jsp?lang=en
Ralf Grahn
According to the Lisbon Treaty the European Parliament and the Council can legislate to facilitate the free movement for migrant workers, abolishing restrictions and improving job-search.
***
Article 40 of the Treaty establishing the European Community (TEC) is one of those without specific amendments in the Treaty on the Functioning of the European Union (TFEU), brought about by the intergovernmental conference (IGC 2007) in the Treaty of Lisbon (ToL). Cf. OJ 17.12.2007 C 306/54.
***
This leads us to believe that there is cause to look up the current provision, presented in the latest consolidated version of the TEU and the TEC in OJ 29.12.2006 C 321 E/58:
Article 40 TEC
The Council shall, acting in accordance with the procedure referred to in Article 251 and after consulting the Economic and Social Committee, issue directives or make regulations setting out the measures required to bring about freedom of movement for workers, as defined in Article 39, in particular:
(a) by ensuring close cooperation between national employment services;
(b) by abolishing those administrative procedures and practices and those qualifying periods in respect of eligibility for available employment, whether resulting from national legislation or from agreements previously concluded between Member States, the maintenance of which would form an obstacle to liberalisation of the movement of workers;
(c) by abolishing all such qualifying periods and other restrictions provided for either under national legislation or under agreements previously concluded between Member States as imposed on workers of other Member States conditions regarding the free choice of employment other than those imposed on workers of the State concerned;
(d) by setting up appropriate machinery to bring offers of employment into touch with applications for employment and to facilitate the achievement of a balance between supply and demand in the employment market in such a way as to avoid serious threats to the standard of living and level of employment in the various regions and industries.
***
If there are no express amendments, we still have to look out for possible horizontal amendments (here 2(c), OJ 17.12.2007 C 306/41) and the renumbering of Articles in question as well as those referred to (OJ 17.12.2007 C 306/208). In addition, to get a sense of the framework, it is helpful to check the location of the provision (Tables of equivalences, OJ 17.12.2007 C 306/207-208). These exercises lead us to what should be the treaty basis when the Lisbon Treaty has entered into force:
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 40 TFEU (ToL), renumbered Article 46 TFEU
The European Parliament and the Council shall, acting in accordance with the ordinary legislative procedure and after consulting the Economic and Social Committee, issue directives or make regulations setting out the measures required to bring about freedom of movement for workers, as defined in Article 39 [ToL, renumbered Article 45 TFEU], in particular:
(a) by ensuring close cooperation between national employment services;
(b) by abolishing those administrative procedures and practices and those qualifying periods in respect of eligibility for available employment, whether resulting from national legislation or from agreements previously concluded between Member States, the maintenance of which would form an obstacle to liberalisation of the movement of workers;
(c) by abolishing all such qualifying periods and other restrictions provided for either under national legislation or under agreements previously concluded between Member States as imposed on workers of other Member States conditions regarding the free choice of employment other than those imposed on workers of the State concerned;
(d) by setting up appropriate machinery to bring offers of employment into touch with applications for employment and to facilitate the achievement of a balance between supply and demand in the employment market in such a way as to avoid serious threats to the standard of living and level of employment in the various regions and industries.
***
The European Convention to change the substance in Article III-19 of the draft Treaty establishing a Constitution for Europe, but its wording was more straightforward and the legislative instruments were clearer (OJ 18.7.2007 C 169/31).
***
Article III-134 of the Treaty establishing a Constitution for Europe took over the draft text (OJ 16.12.2004 C 310/59-60), but the IGC 2007 opting for ‘Constitution light’ chose not to burden the Lisbon Treaty with such minimal amendments without material bearing.
***
Article 39 TFEU (ToL), renumbered Article 45 TFEU, carries much of its own weight, because the principles of free movement and non-discrimination lend themselves to direct application. Therefore there is less need for the legal base in Article 40 TFEU (ToL), renumbered Article 46 TFEU, than might appear at a first glance.
Another ground for the diminishing importance of specific rules on workers’ free movement is the growing importance of EU citizenship as the basis for individuals’ rights in the European Community (European Union) as a whole.
Because the free movement for workers is the one of the four freedoms potentially concerning the largest group of European citizens, it is somewhat disconcerting that many of the old member states raised barriers against migrant workers from ten new Central European member states in the Accession Treaties for fairly long transitional periods.
If illegal immigration from outside the European Union is seen by many as a potential source of difficulties, surely offering both employees and employers within the European Union improved legal possibilities to match offer and demand should be preferred?
One of the measures to strive for balance between supply and demand is EURES, the European Job Mobility Portal:
http://europa.eu.int/eures/home.jsp?lang=en
Ralf Grahn
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