Public undertakings and undertakings with exclusive rights are prohibited from discriminating on the grounds of nationality and they are subject to the EU’s competition rules, including state aid.
Although undertakings (firms) operating services of general economic interest and revenue-producing monopolies (‘milk-cows’) are still subject to EU competition rules according to the Treaty of Lisbon ‘in so far as the application of such rules does not obstruct the performance, in law or in fact, of the particular tasks assigned to them’, continued legislative and court battles loom on the horizon, when the lines have to be drawn between undistorted competition in the single market and the requirements of services for citizens or seemingly bottomless state coffers.
***
Article 106 of the Treaty on the Functioning of the European Union (TFEU) is found in the consolidated version of the Treaty on European Union and the Treaty on the Functioning of the European Union, published in the Official Journal of the European Union, OJ 9.5.2008 C 115/90–91:
Part Three ‘Policies and internal actions of the Union’
Title VII Common rules on competition, taxation and approximation of laws
Chapter 1 Rules on competition
Section 1 Rules applying to undertakings
Article 106 TFEU
(ex Article 86 TEC)
1. In the case of public undertakings and undertakings to which Member States grant special or exclusive rights, Member States shall neither enact nor maintain in force any measure contrary to the rules contained in the Treaties, in particular to those rules provided for in Article 18 and Articles 101 to 109.
2. Undertakings entrusted with the operation of services of general economic interest or having the character of a revenue-producing monopoly shall be subject to the rules contained in the Treaties, in particular to the rules on competition, in so far as the application of such rules does not obstruct the performance, in law or in fact, of the particular tasks assigned to them. The development of trade must not be affected to such an extent as would be contrary to the interests of the Union.
3. The Commission shall ensure the application of the provisions of this Article and shall, where necessary, address appropriate directives or decisions to Member States.
***
In Article 2, point 76 of the Treaty of Lisbon (ToL) the intergovernmental conference (IGC 2007) amended Article 85 TEC and in point 77 it made changes to Article 87 TEC. Thus, there were no specific amendments to Article 86 TEC. Cf. OJ 17.12.2007 C 306/68–69.
***
The TFEU table of equivalences tells us that Article 86 TEC first became Article 86 TFEU (ToL) in the original Treaty of Lisbon, but later renumbered Article 106 TFEU in the consolidated version (OJ 17.12.2007 C 306/211).
***
The current Article 86 of the Treaty establishing the European Community (TEC) is found under Title VI ‘Common rules on competition, taxation and approximation of laws’, Chapter 1 ‘Rules on competition’, Section 1 ‘Rules applying to undertakings’, in the latest consolidated version of the treaties in force (OJ 29.12.2006 C 321 E/76).
In Article 106 TFEU the Articles referred to were renumbered. According Article 2, horizontal amendment 2(b) ‘this Treaty’ became ‘the Treaties’ and in line with horizontal amendment 2(a) ‘the Community’ was replaced by ‘the Union’. Cf. OJ 17.12.2007 C 306/41.
The EC Treaty in force reads like this:
Article 86 TEC
1. In the case of public undertakings and undertakings to which Member States grant special or exclusive rights, Member States shall neither enact nor maintain in force any measure contrary to the rules contained in this Treaty, in particular to those rules provided for in Article 12 and Articles 81 to 89.
2. Undertakings entrusted with the operation of services of general economic interest or having the character of a revenue-producing monopoly shall be subject to the rules contained in this Treaty, in particular to the rules on competition, in so far as the application of such rules does not obstruct the performance, in law or in fact, of the particular tasks assigned to them. The development of trade must not be affected to such an extent as would be contrary to the interests of the Community.
3. The Commission shall ensure the application of the provisions of this Article and shall, where necessary, address appropriate directives or decisions to Member States.
***
For the sake of a systematic comparison, we look at the Article during the previous treaty reform stages.
First, we turn to the European Convention, the nearest thing we as EU citizens have had to a constituent assembly, which located the provisions on competition in Part III ‘The policies and functioning of the Union’, Title III ‘Internal policies and action’, Chapter I ‘Internal market’, Section 5 ‘Rules on competition’, with Subsection 1 ‘Rules applying to undertakings’.
The attentive reader notices minor differences compared to the current TEC in all three paragraphs of Article III-55 of draft Treaty establishing a Constitution for Europe, but none of them had any material impact (OJ 18.7.2003 C 169/36):
Article III-55 Draft Constitution
1. In the case of public undertakings and undertakings to which Member States grant special or exclusive rights, Member States shall neither enact nor maintain in force any provision contrary to the provisions of the Constitution, in particular Article I-4(2) and Articles III-55 to III-58.
2. Undertakings entrusted with the operation of services of general economic interest or having the character of a revenue-producing monopoly shall be subject to the provisions of the Constitution, in particular to the rules on competition, insofar as the application of such rules does not obstruct the performance, in law or in fact, of the particular tasks assigned to them. The development of trade must not be affected to such an extent as would be contrary to the Union's interests.
3. The Commission shall ensure the application of this Article and shall, where necessary, adopt appropriate European regulations or decisions.
***
In the Treaty establishing a Constitution for Europe the provisions on competition were located in Part III ‘The policies and functioning of the Union’, Title III ‘Internal policies and action’, Chapter I ‘Internal market’, Section 5 ‘Rules on competition’, with Subsection 1 ‘Rules applying to undertakings’.
Article III-166 of the Constitutional Treaty was materially the same as the corresponding provision of the draft, although the Articles referred to were naturally numbered differently and there were small differences in the wording.
As a matter of curiosity, for some reason the Constitutional Treaty used the term ‘income-producing monopoly’ in the second paragraph, where all the other versions speak of a ‘revenue-producing monopoly’. Since the TFEU is based on the current TEC, bypassing the draft Constitution and the Constitutional Treaty, this is not a real issue, but it would be interesting to know how such a change came about during the IGC 2004.
Without an explanation I am at a loss to see how this could have been an improvement on current terminology. As far as I understand, all companies want to generate income. The peculiarity of (state) monopolies has been their task to generate revenue for the state, by the strength of their privileged position, setting aside the ‘normal’ rules of competition in the national market and therefore potentially harmful in the context of an extended common market (later named internal market).
Anyway, here is how the IGC 2004 tried to strike the balance between the requirements of competition in the internal market and the privileged position of public undertakings with exclusive rights, services of general economic interest and ‘revenue-producing’ monopolies (OJ 16.12.2004 C 310/70–71):
Article III-166 Constitution
1. In the case of public undertakings and undertakings to which Member States grant special or exclusive rights, Member States shall neither enact nor maintain in force any measure contrary to the Constitution, in particular Article I-4(2) and Articles III-161 to III-169.
2. Undertakings entrusted with the operation of services of general economic interest or having the character of an income-producing monopoly shall be subject to the provisions of the Constitution, in particular to the rules on competition, insofar as the application of such provisions does not obstruct the performance, in law or in fact, of the particular tasks assigned to them. The development of trade must not be affected to such an extent as would be contrary to the Union's interests.
3. The Commission shall ensure the application of this Article and shall, where necessary, adopt appropriate European regulations or decisions.
***
We have seen that Article 106 TFEU, as many other Articles where the (draft Constitution and) the Constitutional Treaty made no substantive difference, is a technical adjustment of the current TEC Article.
***
What has been said about Article 106 TFEU?
United Kingdom
Professor Steve Peers covered the Treaty of Lisbon in a number of Statewatch Analyses. ‘EU Reform Treaty Analysis no. 3.3: Revised text of Part Three, Titles I to VI of the Treaty establishing the European Community (TEC): Internal Market and competition’ (Version 2, 23 October 2007) includes the current Title VI Common rules on competition, taxation and approximation of laws.
Peers highlighted the amendment to Article 86 TEC and TFEU (ToL), to be renumbered Article 106 TFEU in the consolidated version, without comment (page 26).
The analysis 3.3 and other useful Statewatch analyses are available through:
http://www.statewatch.org/euconstitution.htm
***
The Foreign and Commonwealth Office (FCO) offers a convenient source of brief annotations on Lisbon Treaty amendments in ‘A comparative table of the current EC and EU treaties as amended by the Treaty of Lisbon’ (Command Paper 7311, published 21 January 2008). It offers the following comment on Article 106 TFEU, Article 86 TFEU (ToL) in the original Lisbon Treaty (page 11):
“In substance the same as Article 86 TEC.”
The FCO comparative table is available at:
http://www.official-documents.gov.uk/document/cm73/7311/7311.asp
***
The UK House of Commons Library Research Paper 07/86 ‘The Treaty of Lisbon: amendments to the Treaty establishing the European Community’ (published 6 December 2007) discussed competition on pages 57 to 60. It did not comment on Article 86 TEC and ToL. See page 58.
The Library Research Paper 07/86 is available at:
http://www.parliament.uk/commons/lib/research/rp2007/rp07-086.pdf
***
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 internal market and competition on pages 218 and 219.
The main discussion centred on concerns about the removal of ‘free and undistorted competition’ (according to Article I-3(2) of the Constitutional Treaty objectives), but the Committee offered the following general statement on the contents of the competition provisions (page 218):
“9.14. The rules on competition contained in previous treaties would be unchanged by the Lisbon Treaty. Articles 101–103 of the TFEU are the same as Articles 81–83 of the TEC. They give the EU power to legislate to combat practices “which have as their object or effect the prevention, restriction or distortion of competition”.
But I found nothing on Article 106 TFEU (Article 86 TEC and ToL) in this context.
On the other hand, the Committee did, in general terms, discuss Article 14 TFEU on services of general interest, including Protocol (No 26) on services of general interest (on pages 221 and 222). The conclusions were:
“9.40. The impact of the Treaty of Lisbon on Services of General Interest is not significant.
9.41. Given that Article 51 of the TEU, as amended by the Treaty of Lisbon, gives Protocols and Annexes equal weight to the Treaty Articles, the split between Article 14 and the Protocol on Services of General Interest is not one of significance.”
The report is accessible at:
http://www.publications.parliament.uk/pa/ld200708/ldselect/ldeucom/62/62.pdf
My comment: Article 14 TFEU, which is located among the provisions having general application, is meant to operate without prejudice to Article 106 TFEU (and others). Services of general interest include services of general economic interest, one of the categories of undertakings (firms) mentioned in Article 106(2) and subject to more lenient competition rules, as far as required by their tasks. Therefore, Article 106 TFEU has to be read and applied in the context of Article 14 TFEU and Protocol No 26.
Their Lordships may have concluded (possibly correctly) that the impact of the Lisbon Treaty on services of general interest is not significant, but I am not going be overly astonished if a mercantilistic founding member applies pressure based on a contrary assumption.
***
Sweden
The consultation paper of the government of Sweden, ‘Lissabonfördraget; Statsrådsberedningen, Departementsserien (Ds), Ds 2007:48’ published 20 December 2007, deals with the internal market on pages 261 to 269, ’22.1 Inre marknaden’. There is a brief description of the existing competition rules, Articles 81 to 89 TEC, on page 262.
On pages 265 to 266 the consultation paper explains the amendments to the competition rules (Konkurrensregler), but Article 86 TFEU (ToL) is not mentioned specifically.
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), briefly states the unchanged nature of Article 86 TFEU (ToL), renumbered Article 106 TFEU (page 207):
”86 artiklaa (uusi 106 artikla), joka sääntelee julkisten yritysten toimintaa, ei muuteta.”
The Finnish ratification 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 rd), offers the same brief statement about Article 86 TFEU (ToL), the future Article 106 TFEU, on page 210:
”Artikel 86 (blivande artikel 106), som reglerar offentliga företags verksamhet, ändras inte.”
The ratification bill in Swedish can be accessed at:
http://www.finlex.fi/sv/esitykset/he/2008/20080023.pdf
Ralf Grahn
Saturday, 31 May 2008
Friday, 30 May 2008
EU TFEU: Commission competition enforcement
The Commission is entrusted to enforce the competition rules of the European Community (European Union), by investigating infringements and bringing them to an end. The EU Treaty of Lisbon gives the Commission express powers to adopt regulations relating to the categories of agreement in respect of which the Council has adopted a regulation or a directive, but this reflects current practice concerning block exemptions.
***
Article 105 of the Treaty on the Functioning of the European Union (TFEU) is found in the consolidated version of the Treaty on European Union and the Treaty on the Functioning of the European Union, published in the Official Journal of the European Union, OJ 9.5.2008 C 115/90:
Part Three ‘Policies and internal actions of the Union’
Title VII Common rules on competition, taxation and approximation of laws
Chapter 1 Rules on competition
Section 1 Rules applying to undertakings
Article 105 TFEU
(ex Article 85 TEC)
1. Without prejudice to Article 104, the Commission shall ensure the application of the principles laid down in Articles 101 and 102. On application by a Member State or on its own initiative, and in cooperation with the competent authorities in the Member States, which shall give it their assistance, the Commission shall investigate cases of suspected infringement of these principles. If it finds that there has been an infringement, it shall propose appropriate measures to bring it to an end.
2. If the infringement is not brought to an end, the Commission shall record such infringement of the principles in a reasoned decision. The Commission may publish its decision and authorise Member States to take the measures, the conditions and details of which it shall determine, needed to remedy the situation.
3. The Commission may adopt regulations relating to the categories of agreement in respect of which the Council has adopted a regulation or a directive pursuant to Article 103(2)(b).
***
In Article 2, point 76 of the Treaty of Lisbon (ToL) the intergovernmental conference (IGC 2007) amended Article 85 TEC (OJ 17.12.2007 C 306/68):
76) In Article 85, the following new paragraph 3 shall be added:
‘3. The Commission may adopt regulations relating to the categories of agreement in respect of which the Council has adopted a regulation or a directive pursuant to Article 83(2)(b).’.
***
The TFEU table of equivalences tells us that Article 85 TEC first became Article 85 TFEU (ToL) in the original Treaty of Lisbon, but later renumbered Article 105 TFEU in the consolidated version (OJ 17.12.2007 C 306/211).
***
The current Article 85 of the Treaty establishing the European Community (TEC) is found under Title VI ‘Common rules on competition, taxation and approximation of laws’, Chapter 1 ‘Rules on competition’, Section 1 ‘Rules applying to undertakings’, in the latest consolidated version of the treaties in force (OJ 29.12.2006 C 321 E/76).
In Article 105 TFEU the Articles referred to were renumbered and the new third paragraph was inserted, so here is the current Article 85 TEC:
Article 85 TEC
1. Without prejudice to Article 84, the Commission shall ensure the application of the principles laid down in Articles 81 and 82. On application by a Member State or on its own initiative, and in cooperation with the competent authorities in the Member States, which shall give it their assistance, the Commission shall investigate cases of suspected infringement of these principles. If it finds that there has been an infringement, it shall propose appropriate measures to bring it to an end.
2. If the infringement is not brought to an end, the Commission shall record such infringement of the principles in a reasoned decision. The Commission may publish its decision and authorise Member States to take the measures, the conditions and details of which it shall determine, needed to remedy the situation.
***
For the sake of a systematic comparison, we look at the Article during the previous treaty reform stages.
First, we turn to the European Convention, which located the provisions on competition in Part III ‘The policies and functioning of the Union’, Title III ‘Internal policies and action’, Chapter I ‘Internal market’, Section 5 ‘Rules on competition’, with Subsection 1 ‘Rules applying to undertakings’.
The draft Treaty establishing a Constitution for Europe used the terms ‘European decision’ and ‘European regulations’. Naturally, the Articles referred to in Article III-54 were numbered differently. There were slight changes to the wording, without material impact, but a new third paragraph was added (OJ 18.7.2003 C 169/36):
Article III-54 Draft Constitution
1. Without prejudice to Article III-53, the Commission shall ensure the application of the principles laid down in Articles III-50 and III-51. On application by a Member State or on its own initiative, and in cooperation with the competent authorities in the Member States, which shall give it their assistance, the Commission shall investigate cases of suspected infringement of these principles. If it finds that there has been an infringement, it shall propose appropriate measures to bring it to an end.
2. If the infringement is not brought to an end, the Commission shall adopt a reasoned European decision recording the infringement of the principles. The Commission may publish its decision and authorise Member States to take the steps, the conditions and details of which it shall determine, needed to remedy the situation.
3. The Commission may adopt European regulations relating to the categories of agreement in respect of which the Council of Ministers has acted pursuant to Article III-52(2)(b).
***
In the Treaty establishing a Constitution for Europe the provisions on competition were located in Part III ‘The policies and functioning of the Union’, Title III ‘Internal policies and action’, Chapter I ‘Internal market’, Section 5 ‘Rules on competition’, with Subsection 1 ‘Rules applying to undertakings’.
Article III-165 of the Constitutional Treaty was materially the same as the corresponding provision of the draft, although there were small differences in the wording (OJ 16.12.2004 C 310/70):
Article III-165 Constitution
1. Without prejudice to Article III-164, the Commission shall ensure the application of the principles set out in Articles III-161 and III-162. On application by a Member State or on its own initiative, and in cooperation with the competent authorities in the Member States, which shall give it their assistance, the Commission shall investigate cases of suspected infringement of these principles. If it finds that there has been an infringement, it shall propose appropriate measures to bring it to an end.
2. If the infringement referred to in paragraph 1 is not brought to an end, the Commission shall adopt a reasoned European decision recording the infringement of the principles. The Commission may publish its decision and authorise Member States to take the measures, the conditions and details of which it shall determine, needed to remedy the situation.
3. The Commission may adopt European regulations relating to the categories of agreement in respect of which the Council has adopted a European regulation pursuant to Article III-163, second paragraph, (b).
***
We have seen that Article 105 TFEU adopted the new third paragraph proposed by the European Convention and agreed by the IGC 2004, although ‘European regulations’ became mere ‘regulations’ and the act adopted by the Council changed from ‘European regulation’ to ‘regulation or a directive’.
***
What has been said about Article 105 TFEU?
United Kingdom
Professor Steve Peers covered the Treaty of Lisbon in a number of Statewatch Analyses. ‘EU Reform Treaty Analysis no. 3.3: Revised text of Part Three, Titles I to VI of the Treaty establishing the European Community (TEC): Internal Market and competition’ (Version 2, 23 October 2007) includes the current Title VI Common rules on competition, taxation and approximation of laws.
Peers highlighted the amendment to Article 85 TEC and TFEU (ToL), to be renumbered Article 105 TFEU in the consolidated version, with a short comment (pages 25–26):
“The amendment reflects existing practice.”
The analysis 3.3 and other useful Statewatch analyses are available through:
http://www.statewatch.org/euconstitution.htm
***
The Foreign and Commonwealth Office (FCO) offers a convenient source of brief annotations on Lisbon Treaty amendments in ‘A comparative table of the current EC and EU treaties as amended by the Treaty of Lisbon’ (Command Paper 7311, published 21 January 2008). It offers the following comment on Article 105 TFEU, Article 85 TFEU (ToL) in the original Lisbon Treaty (page 11):
“Paragraphs 1 and 2 are unchanged from Article 85 TEC. Paragraph 3 is new.”
The FCO comparative table is available at:
http://www.official-documents.gov.uk/document/cm73/7311/7311.asp
***
The UK House of Commons Library Research Paper 07/86 ‘The Treaty of Lisbon: amendments to the Treaty establishing the European Community’ (published 6 December 2007) discussed competition on pages 57 to 60. It described Article 85 TEC and ToL on page 58:
“Article 85 (Constitution Article III-165) gives the Commission the authority to investigate competition infringements within its competence, and requires Member States to assist the Commission in this work. There is one addition to the text in Article 85(3) (Constitution Article III-165(3)) to the effect that, where the Council has adopted a regulation pursuant to this provision, the Commission is empowered to adopt a regulation or directive relating to the categories of agreement.”
The Library Research Paper 07/86 is available at:
http://www.parliament.uk/commons/lib/research/rp2007/rp07-086.pdf
***
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 internal market and competition on pages 218 and 219.
The main discussion centred on concerns about the removal of ‘free and undistorted competition’ (according to Article I-3(2) of the Constitutional Treaty objectives), but the Committee offered the following statement on the contents of the competition provisions (page 218):
“9.14. The rules on competition contained in previous treaties would be unchanged by the Lisbon Treaty. Articles 101–103 of the TFEU are the same as Articles 81–83 of the TEC. They give the EU power to legislate to combat practices “which have as their object or effect the prevention, restriction or distortion of competition”.
But I found nothing on Article 105 TFEU (Article 85 TEC and ToL).
The report is accessible at:
http://www.publications.parliament.uk/pa/ld200708/ldselect/ldeucom/62/62.pdf
***
Sweden
The consultation paper of the government of Sweden, ‘Lissabonfördraget; Statsrådsberedningen, Departementsserien (Ds), Ds 2007:48’ published 20 December 2007, deals with the internal market on pages 261 to 269, ’22.1 Inre marknaden’. There is a brief description of the existing competition rules, Articles 81 to 89 TEC, on page 262.
On pages 265 to 266 the consultation paper explains the amendments to the competition rules (Konkurrensregler). With regard to Article 85(3) TFEU (ToL), the paper mentions that the Commission is given express authorisation to issue rules on block exemptions concerning categories of agreements decided by the Council, and it adds that the amendment reflects current practice:
”Vad avser kommissionens möjligheter att anta vissa genomförandebestämmelser för gruppundantag anges det uttryckligen att kommissionen får anta förordningar avseende de avtalskategorier som rådet har beslutat om (artikel 85.3 i EUF-fördraget). Ändringen motsvarar nuvarande tillämpning.”
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), describes the proposed Commission powers to issue block exemptions, but it makes the observation that this has been the case on the basis of powers delegated by the Council. The comment on Article 85 TFEU (ToL), renumbered Article 105 TFEU is the following (page 207):
”85 artiklaan (uusi 105 artikla) lisätään uusi 3 kohta, jonka nojalla komissio voi antaa sellaisten sopimusten ryhmiä koskevia asetuksia, joista neuvosto on antanut asetuksen tai direktiivin SEUT 83 artiklan 2 kohdan b alakohdan mukaisesti. Komission antamat asetukset ovat SEUT 81 artiklan 3 kohdan soveltamista koskevia niin sanottuja ryhmäpoikkeusasetuksia. EY-sopimuksessa ei ole vastaavaa määräystä, jossa nimenomaisesti todettaisiin komission toimivaltuus antaa asetuksia SEY 81 artiklan 3 kohdan soveltamisesta sopimusten ryhmiin. Komissiolla on kuitenkin jo nykyisin mahdollisuus antaa SEY 81 artiklan 3 kohdan soveltamista koskevia ryhmäpoikkeusasetuksia, jos neuvosto on asetuksella antanut komissiolle siihen toimivaltuudet. Komission toimivallan kirjaaminen perussopimukseen ei siten tuo muutosta vallitsevaan oikeustilaan. Määräys on samansisältöinen kuin perustuslakisopimuksen III-165 artikla.”
The Finnish ratification 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 rd), offers the same observations about Article 85 TFEU (ToL), the future Article 105 TFEU, on page 210:
”Till artikel 85 (blivande artikel 105) fogas en ny punkt 3, med stöd av vilken kommissionen får anta förordningar avseende de avtalskategorier för vilka rådet har antagit en förordning eller ett direktiv i enlighet med artikel 83.2 punkt b i EUF-fördraget. De förordningar som antagits av kommissionen är s.k. gruppundantagsförordningar som gäller tillämpningen av artikel 81.3 i EUF-fördraget. I EG-fördraget ingår inte någon motsvarande bestämmelse där det uttryckligen skulle konstateras att kommissionen har befogenheter att anta förordningar avseende tillämpningen av artikel 81.3 i EG-fördraget på avtalskategorier. Kommissionen har emellertid redan nu möjlighet att anta förordningar om gruppundantag som gäller tillämpningen av artikel 81.3 i EG-fördraget, om rådet genom förordning har gett kommissionen befogenheter att göra det. Att kommissionens befogenheter skrivs in i grundfördraget innebär således ingen ändring i det rådande rättsläget. Bestämmelsen har samma innehåll som artikel III-165 i det konstitutionella fördraget.”
The ratification bill in Swedish can be accessed at:
http://www.finlex.fi/sv/esitykset/he/2008/20080023.pdf
Ralf Grahn
***
Article 105 of the Treaty on the Functioning of the European Union (TFEU) is found in the consolidated version of the Treaty on European Union and the Treaty on the Functioning of the European Union, published in the Official Journal of the European Union, OJ 9.5.2008 C 115/90:
Part Three ‘Policies and internal actions of the Union’
Title VII Common rules on competition, taxation and approximation of laws
Chapter 1 Rules on competition
Section 1 Rules applying to undertakings
Article 105 TFEU
(ex Article 85 TEC)
1. Without prejudice to Article 104, the Commission shall ensure the application of the principles laid down in Articles 101 and 102. On application by a Member State or on its own initiative, and in cooperation with the competent authorities in the Member States, which shall give it their assistance, the Commission shall investigate cases of suspected infringement of these principles. If it finds that there has been an infringement, it shall propose appropriate measures to bring it to an end.
2. If the infringement is not brought to an end, the Commission shall record such infringement of the principles in a reasoned decision. The Commission may publish its decision and authorise Member States to take the measures, the conditions and details of which it shall determine, needed to remedy the situation.
3. The Commission may adopt regulations relating to the categories of agreement in respect of which the Council has adopted a regulation or a directive pursuant to Article 103(2)(b).
***
In Article 2, point 76 of the Treaty of Lisbon (ToL) the intergovernmental conference (IGC 2007) amended Article 85 TEC (OJ 17.12.2007 C 306/68):
76) In Article 85, the following new paragraph 3 shall be added:
‘3. The Commission may adopt regulations relating to the categories of agreement in respect of which the Council has adopted a regulation or a directive pursuant to Article 83(2)(b).’.
***
The TFEU table of equivalences tells us that Article 85 TEC first became Article 85 TFEU (ToL) in the original Treaty of Lisbon, but later renumbered Article 105 TFEU in the consolidated version (OJ 17.12.2007 C 306/211).
***
The current Article 85 of the Treaty establishing the European Community (TEC) is found under Title VI ‘Common rules on competition, taxation and approximation of laws’, Chapter 1 ‘Rules on competition’, Section 1 ‘Rules applying to undertakings’, in the latest consolidated version of the treaties in force (OJ 29.12.2006 C 321 E/76).
In Article 105 TFEU the Articles referred to were renumbered and the new third paragraph was inserted, so here is the current Article 85 TEC:
Article 85 TEC
1. Without prejudice to Article 84, the Commission shall ensure the application of the principles laid down in Articles 81 and 82. On application by a Member State or on its own initiative, and in cooperation with the competent authorities in the Member States, which shall give it their assistance, the Commission shall investigate cases of suspected infringement of these principles. If it finds that there has been an infringement, it shall propose appropriate measures to bring it to an end.
2. If the infringement is not brought to an end, the Commission shall record such infringement of the principles in a reasoned decision. The Commission may publish its decision and authorise Member States to take the measures, the conditions and details of which it shall determine, needed to remedy the situation.
***
For the sake of a systematic comparison, we look at the Article during the previous treaty reform stages.
First, we turn to the European Convention, which located the provisions on competition in Part III ‘The policies and functioning of the Union’, Title III ‘Internal policies and action’, Chapter I ‘Internal market’, Section 5 ‘Rules on competition’, with Subsection 1 ‘Rules applying to undertakings’.
The draft Treaty establishing a Constitution for Europe used the terms ‘European decision’ and ‘European regulations’. Naturally, the Articles referred to in Article III-54 were numbered differently. There were slight changes to the wording, without material impact, but a new third paragraph was added (OJ 18.7.2003 C 169/36):
Article III-54 Draft Constitution
1. Without prejudice to Article III-53, the Commission shall ensure the application of the principles laid down in Articles III-50 and III-51. On application by a Member State or on its own initiative, and in cooperation with the competent authorities in the Member States, which shall give it their assistance, the Commission shall investigate cases of suspected infringement of these principles. If it finds that there has been an infringement, it shall propose appropriate measures to bring it to an end.
2. If the infringement is not brought to an end, the Commission shall adopt a reasoned European decision recording the infringement of the principles. The Commission may publish its decision and authorise Member States to take the steps, the conditions and details of which it shall determine, needed to remedy the situation.
3. The Commission may adopt European regulations relating to the categories of agreement in respect of which the Council of Ministers has acted pursuant to Article III-52(2)(b).
***
In the Treaty establishing a Constitution for Europe the provisions on competition were located in Part III ‘The policies and functioning of the Union’, Title III ‘Internal policies and action’, Chapter I ‘Internal market’, Section 5 ‘Rules on competition’, with Subsection 1 ‘Rules applying to undertakings’.
Article III-165 of the Constitutional Treaty was materially the same as the corresponding provision of the draft, although there were small differences in the wording (OJ 16.12.2004 C 310/70):
Article III-165 Constitution
1. Without prejudice to Article III-164, the Commission shall ensure the application of the principles set out in Articles III-161 and III-162. On application by a Member State or on its own initiative, and in cooperation with the competent authorities in the Member States, which shall give it their assistance, the Commission shall investigate cases of suspected infringement of these principles. If it finds that there has been an infringement, it shall propose appropriate measures to bring it to an end.
2. If the infringement referred to in paragraph 1 is not brought to an end, the Commission shall adopt a reasoned European decision recording the infringement of the principles. The Commission may publish its decision and authorise Member States to take the measures, the conditions and details of which it shall determine, needed to remedy the situation.
3. The Commission may adopt European regulations relating to the categories of agreement in respect of which the Council has adopted a European regulation pursuant to Article III-163, second paragraph, (b).
***
We have seen that Article 105 TFEU adopted the new third paragraph proposed by the European Convention and agreed by the IGC 2004, although ‘European regulations’ became mere ‘regulations’ and the act adopted by the Council changed from ‘European regulation’ to ‘regulation or a directive’.
***
What has been said about Article 105 TFEU?
United Kingdom
Professor Steve Peers covered the Treaty of Lisbon in a number of Statewatch Analyses. ‘EU Reform Treaty Analysis no. 3.3: Revised text of Part Three, Titles I to VI of the Treaty establishing the European Community (TEC): Internal Market and competition’ (Version 2, 23 October 2007) includes the current Title VI Common rules on competition, taxation and approximation of laws.
Peers highlighted the amendment to Article 85 TEC and TFEU (ToL), to be renumbered Article 105 TFEU in the consolidated version, with a short comment (pages 25–26):
“The amendment reflects existing practice.”
The analysis 3.3 and other useful Statewatch analyses are available through:
http://www.statewatch.org/euconstitution.htm
***
The Foreign and Commonwealth Office (FCO) offers a convenient source of brief annotations on Lisbon Treaty amendments in ‘A comparative table of the current EC and EU treaties as amended by the Treaty of Lisbon’ (Command Paper 7311, published 21 January 2008). It offers the following comment on Article 105 TFEU, Article 85 TFEU (ToL) in the original Lisbon Treaty (page 11):
“Paragraphs 1 and 2 are unchanged from Article 85 TEC. Paragraph 3 is new.”
The FCO comparative table is available at:
http://www.official-documents.gov.uk/document/cm73/7311/7311.asp
***
The UK House of Commons Library Research Paper 07/86 ‘The Treaty of Lisbon: amendments to the Treaty establishing the European Community’ (published 6 December 2007) discussed competition on pages 57 to 60. It described Article 85 TEC and ToL on page 58:
“Article 85 (Constitution Article III-165) gives the Commission the authority to investigate competition infringements within its competence, and requires Member States to assist the Commission in this work. There is one addition to the text in Article 85(3) (Constitution Article III-165(3)) to the effect that, where the Council has adopted a regulation pursuant to this provision, the Commission is empowered to adopt a regulation or directive relating to the categories of agreement.”
The Library Research Paper 07/86 is available at:
http://www.parliament.uk/commons/lib/research/rp2007/rp07-086.pdf
***
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 internal market and competition on pages 218 and 219.
The main discussion centred on concerns about the removal of ‘free and undistorted competition’ (according to Article I-3(2) of the Constitutional Treaty objectives), but the Committee offered the following statement on the contents of the competition provisions (page 218):
“9.14. The rules on competition contained in previous treaties would be unchanged by the Lisbon Treaty. Articles 101–103 of the TFEU are the same as Articles 81–83 of the TEC. They give the EU power to legislate to combat practices “which have as their object or effect the prevention, restriction or distortion of competition”.
But I found nothing on Article 105 TFEU (Article 85 TEC and ToL).
The report is accessible at:
http://www.publications.parliament.uk/pa/ld200708/ldselect/ldeucom/62/62.pdf
***
Sweden
The consultation paper of the government of Sweden, ‘Lissabonfördraget; Statsrådsberedningen, Departementsserien (Ds), Ds 2007:48’ published 20 December 2007, deals with the internal market on pages 261 to 269, ’22.1 Inre marknaden’. There is a brief description of the existing competition rules, Articles 81 to 89 TEC, on page 262.
On pages 265 to 266 the consultation paper explains the amendments to the competition rules (Konkurrensregler). With regard to Article 85(3) TFEU (ToL), the paper mentions that the Commission is given express authorisation to issue rules on block exemptions concerning categories of agreements decided by the Council, and it adds that the amendment reflects current practice:
”Vad avser kommissionens möjligheter att anta vissa genomförandebestämmelser för gruppundantag anges det uttryckligen att kommissionen får anta förordningar avseende de avtalskategorier som rådet har beslutat om (artikel 85.3 i EUF-fördraget). Ändringen motsvarar nuvarande tillämpning.”
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), describes the proposed Commission powers to issue block exemptions, but it makes the observation that this has been the case on the basis of powers delegated by the Council. The comment on Article 85 TFEU (ToL), renumbered Article 105 TFEU is the following (page 207):
”85 artiklaan (uusi 105 artikla) lisätään uusi 3 kohta, jonka nojalla komissio voi antaa sellaisten sopimusten ryhmiä koskevia asetuksia, joista neuvosto on antanut asetuksen tai direktiivin SEUT 83 artiklan 2 kohdan b alakohdan mukaisesti. Komission antamat asetukset ovat SEUT 81 artiklan 3 kohdan soveltamista koskevia niin sanottuja ryhmäpoikkeusasetuksia. EY-sopimuksessa ei ole vastaavaa määräystä, jossa nimenomaisesti todettaisiin komission toimivaltuus antaa asetuksia SEY 81 artiklan 3 kohdan soveltamisesta sopimusten ryhmiin. Komissiolla on kuitenkin jo nykyisin mahdollisuus antaa SEY 81 artiklan 3 kohdan soveltamista koskevia ryhmäpoikkeusasetuksia, jos neuvosto on asetuksella antanut komissiolle siihen toimivaltuudet. Komission toimivallan kirjaaminen perussopimukseen ei siten tuo muutosta vallitsevaan oikeustilaan. Määräys on samansisältöinen kuin perustuslakisopimuksen III-165 artikla.”
The Finnish ratification 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 rd), offers the same observations about Article 85 TFEU (ToL), the future Article 105 TFEU, on page 210:
”Till artikel 85 (blivande artikel 105) fogas en ny punkt 3, med stöd av vilken kommissionen får anta förordningar avseende de avtalskategorier för vilka rådet har antagit en förordning eller ett direktiv i enlighet med artikel 83.2 punkt b i EUF-fördraget. De förordningar som antagits av kommissionen är s.k. gruppundantagsförordningar som gäller tillämpningen av artikel 81.3 i EUF-fördraget. I EG-fördraget ingår inte någon motsvarande bestämmelse där det uttryckligen skulle konstateras att kommissionen har befogenheter att anta förordningar avseende tillämpningen av artikel 81.3 i EG-fördraget på avtalskategorier. Kommissionen har emellertid redan nu möjlighet att anta förordningar om gruppundantag som gäller tillämpningen av artikel 81.3 i EG-fördraget, om rådet genom förordning har gett kommissionen befogenheter att göra det. Att kommissionens befogenheter skrivs in i grundfördraget innebär således ingen ändring i det rådande rättsläget. Bestämmelsen har samma innehåll som artikel III-165 i det konstitutionella fördraget.”
The ratification bill in Swedish can be accessed at:
http://www.finlex.fi/sv/esitykset/he/2008/20080023.pdf
Ralf Grahn
Thursday, 29 May 2008
EU TFEU: Competition transition provision
The transitional provision on competition rules seems to illustrate the institutional focus of the treaty reform aspirations during the last decade. The EU Treaty of Lisbon makes technical adjustments, without taking notice of the relevance or irrelevance of most provisions concerning the internal policy areas.
If the Treaty of Lisbon enters into force, there might be an opening to modernise the Treaty on the Functioning of the European Union (TFEU).
***
Article 104 of the Treaty on the Functioning of the European Union (TFEU) is found in the consolidated version of the Treaty on European Union and the Treaty on the Functioning of the European Union, published in the Official Journal of the European Union, OJ 9.5.2008 C 115/90:
Part Three ‘Policies and internal actions of the Union’
Title VII Common rules on competition, taxation and approximation of laws
Chapter 1 Rules on competition
Section 1 Rules applying to undertakings
Article 104 TFEU
(ex Article 84 TEC)
Until the entry into force of the provisions adopted in pursuance of Article 103, the authorities in Member States shall rule on the admissibility of agreements, decisions and concerted practices and on abuse of a dominant position in the internal market in accordance with the law of their country and with the provisions of Article 101, in particular paragraph 3, and of Article 102.
***
In Article 2, point 75 of the Treaty of Lisbon (ToL) the intergovernmental conference (IGC 2007) laid out the specific amendments to Article 80 TEC and point 76 amended Article 85 TEC. Thus, no specific amendments were made to Article 84 TEC (OJ 17.12.2007 C 306/68).
***
The TFEU table of equivalences tells us that Article 84 TEC first became Article 84 TFEU (ToL) in the original Treaty of LIsbon, but later renumbered Article 104 TFEU in the consolidated version (OJ 17.12.2007 C 306/211).
***
The current Article 84 of the Treaty establishing the European Community (TEC) is found under Title VI ‘Common rules on competition, taxation and approximation of laws’, Chapter 1 ‘Rules on competition’, Section 1 ‘Rules applying to undertakings’, in the latest consolidated version of the treaties in force (OJ 29.12.2006 C 321 E/75).
In Article 104 TFEU the words ‘common market’ were replaced by ‘internal market’ in accordance with the Article 2 of the Treaty of Lisbon, horizontal amendment 2(g). Cf. OJ 17.12.2007 C 306/41..
In addition, the Articles referred to were renumbered in the amending treaty. For ease of use, the current Article 84 TEC is reproduced here in full:
Article 84 TEC
Until the entry into force of the provisions adopted in pursuance of Article 83, the authorities in Member States shall rule on the admissibility of agreements, decisions and concerted practices and on abuse of a dominant position in the common market in accordance with the law of their country and with the provisions of Article 81, in particular paragraph 3, and of Article 82.
***
For the sake of a systematic comparison, we look at the Article during the previous treaty reform stages.
First, we turn to the European Convention, which located the provisions on competition in Part III ‘The policies and functioning of the Union’, Title III ‘Internal policies and action’, Chapter I ‘Internal market’, Section 5 ‘Rules on competition’, with Subsection 1 ‘Rules applying to undertakings’.
The draft Treaty establishing a Constitution for Europe opted for the term ‘internal market’ and Article III-53 defined the legal instruments in the field of competition as ‘European regulations’. Naturally, the Articles referred to were numbered differently. Otherwise the rewording was minimal. In case someone wants to study the draft provisions more closely, the text looked like this (OJ 18.7.2003 C 169/36):
Article III-53 Draft Constitution
Until the entry into force of the European regulations adopted pursuant to Article III-52, the authorities in Member States shall rule on the admissibility of agreements, decisions and concerted practices and on abuse of a dominant position in the internal market in accordance with their internal law and Articles III-50, in particular paragraph 3, and Article III-51.
***
The location of Article III-164 of the Treaty establishing a Constitution for Europe was the same as for the corresponding provision of the draft (OJ 16.12.2004 C 310/70).
The term ‘internal law’ became ‘national law’ and the Articles referred to were numbered differently:
Article III-164 Constitution
Until the entry into force of the European regulations adopted pursuant to Article III-163, the authorities in Member States shall rule on the admissibility of agreements, decisions and concerted practices and on abuse of a dominant position in the internal market in accordance with their national law and Article III-161, in particular paragraph 3, and Article III-162.
***
We have seen that Article 104 TFEU, content to make only horizontal and technical adjustments, is almost exactly the same as the current Article 84 TEC. Thus, instead of legal instruments with distinct names, the provision refers to ‘the provisions adopted in pursuance of Article 103’.
***
What has been said about Article 104 TFEU?
United Kingdom
Professor Steve Peers covered the Treaty of Lisbon in a number of Statewatch Analyses. ‘EU Reform Treaty Analysis no. 3.3: Revised text of Part Three, Titles I to VI of the Treaty establishing the European Community (TEC): Internal Market and competition’ (Version 2, 23 October 2007) includes the current Title VI Common rules on competition, taxation and approximation of laws.
Peers highlighted the amendment to Article 84 TEC and TFEU (ToL), to be renumbered Article 104 TFEU in the consolidated version, without comment (page 25).
The analysis 3.3 and other useful Statewatch analyses are available through:
http://www.statewatch.org/euconstitution.htm
***
The Foreign and Commonwealth Office (FCO) offers a convenient source of brief annotations on Lisbon Treaty amendments in ‘A comparative table of the current EC and EU treaties as amended by the Treaty of Lisbon’ (Command Paper 7311, published 21 January 2008). It offers the following comment on Article 104 TFEU, Article 84 TFEU (ToL) in the original Lisbon Treaty (page 11):
“Unchanged from Article 84 TEC.”
The FCO comparative table is available at:
http://www.official-documents.gov.uk/document/cm73/7311/7311.asp
***
The UK House of Commons Library Research Paper 07/86 ‘The Treaty of Lisbon: amendments to the Treaty establishing the European Community’ (published 6 December 2007) discussed competition on pages 57 to 60. It commented on Articles 81 and 82 as well as Article 85 TEC and ToL on page 58, but Article 84 TEC and ToL drew no comment.
The Library Research Paper 07/86 is available at:
http://www.parliament.uk/commons/lib/research/rp2007/rp07-086.pdf
***
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 internal market and competition on pages 218 and 219.
The main discussion centred on concerns about the removal of ‘free and undistorted competition’ (according to Article I-3(2) of the Constitutional Treaty objectives), but the Committee offered the following statement on the contents of the competition provisions (page 218):
“9.14. The rules on competition contained in previous treaties would be unchanged by the Lisbon Treaty. Articles 101–103 of the TFEU are the same as Articles 81–83 of the TEC. They give the EU power to legislate to combat practices “which have as their object or effect the prevention, restriction or distortion of competition”.
As we see, Article 104 TFEU (Article 84 TEC and ToL) was not mentioned.
The report is accessible at:
http://www.publications.parliament.uk/pa/ld200708/ldselect/ldeucom/62/62.pdf
***
Sweden
The consultation paper of the government of Sweden, ‘Lissabonfördraget; Statsrådsberedningen, Departementsserien (Ds), Ds 2007:48’ published 20 December 2007, deals with the internal market on pages 261 to 269, ’22.1 Inre marknaden’. There is a brief description of the existing competition rules, Articles 81 to 89 TEC, on page 262.
On pages 265 to 266 the consultation paper explains the amendments to the competition rules (Konkurrensregler), but there are no specific comments on Article 84 TFEU (ToL).
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), includes only a short comment on the unchanged nature of Article 84 TFEU (ToL), renumbered Article 104 TFEU (on page 207):
”84 artiklaa (uusi 104 artikla), joka koskee 83 artiklan nojalla annettujen asetusten ja direktiivien täytäntöönpanoa jäsenvaltioissa, ei muuteta.”
The Finnish ratification 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 rd), offers the same brief observation about Article 84 TFEU (ToL), the future Article 104 TFEU, on page 210:
”Artikel 84 (blivande artikel 104), som gäller genomförandet av förordningar och direktiv som antagits med stöd av artikel 83, ändras inte.”
The ratification bill in Swedish can be accessed at:
http://www.finlex.fi/sv/esitykset/he/2008/20080023.pdf
***
European Community (European Union) competition law and policy is a developed area, with treaty provisions, secondary legislation, supplementing guidelines and a significant body of case law.
Today, areas not covered by EC law seem marginal or inexistent, especially after Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (Text with EEA relevance), as amended by Regulations No 411/2004 and 1419/2006:
Council Regulation (EC) No 411/2004 of 26 February 2004 repealing Regulation (EEC) No 3975/87 and amending Regulations (EEC) No 3976/87 and (EC) No 1/2003, in connection with air transport between the Community and third countries (Text with EEA relevance)
Council Regulation (EC) No 1419/2006 of 25 September 2006 repealing Regulation (EEC) No 4056/86 laying down detailed rules for the application of Articles 85 and 86 of the Treaty to maritime transport, and amending Regulation (EC) No 1/2003 as regards the extension of its scope to include cabotage and international tramp services (Text with EEA relevance)
For convenience, see the consolidated version of Regulation 1/2003:
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CONSLEG:2003R0001:20061018:EN:PDF
In addition, we take note of the Article 3(1)(b) TFEU, on the future competition law of the European Union:
1. The Union shall have exclusive competence in the following areas:
---
(b) the establishing of the competition rules necessary for the functioning of the internal market;
---
If the Treaty of Lisbon enters into force, a reform of the policy areas in the EU treaties, especially the TFEU, seems to be called for, if only to rid the treaties of more or less redundant provisions.
Ralf Grahn
If the Treaty of Lisbon enters into force, there might be an opening to modernise the Treaty on the Functioning of the European Union (TFEU).
***
Article 104 of the Treaty on the Functioning of the European Union (TFEU) is found in the consolidated version of the Treaty on European Union and the Treaty on the Functioning of the European Union, published in the Official Journal of the European Union, OJ 9.5.2008 C 115/90:
Part Three ‘Policies and internal actions of the Union’
Title VII Common rules on competition, taxation and approximation of laws
Chapter 1 Rules on competition
Section 1 Rules applying to undertakings
Article 104 TFEU
(ex Article 84 TEC)
Until the entry into force of the provisions adopted in pursuance of Article 103, the authorities in Member States shall rule on the admissibility of agreements, decisions and concerted practices and on abuse of a dominant position in the internal market in accordance with the law of their country and with the provisions of Article 101, in particular paragraph 3, and of Article 102.
***
In Article 2, point 75 of the Treaty of Lisbon (ToL) the intergovernmental conference (IGC 2007) laid out the specific amendments to Article 80 TEC and point 76 amended Article 85 TEC. Thus, no specific amendments were made to Article 84 TEC (OJ 17.12.2007 C 306/68).
***
The TFEU table of equivalences tells us that Article 84 TEC first became Article 84 TFEU (ToL) in the original Treaty of LIsbon, but later renumbered Article 104 TFEU in the consolidated version (OJ 17.12.2007 C 306/211).
***
The current Article 84 of the Treaty establishing the European Community (TEC) is found under Title VI ‘Common rules on competition, taxation and approximation of laws’, Chapter 1 ‘Rules on competition’, Section 1 ‘Rules applying to undertakings’, in the latest consolidated version of the treaties in force (OJ 29.12.2006 C 321 E/75).
In Article 104 TFEU the words ‘common market’ were replaced by ‘internal market’ in accordance with the Article 2 of the Treaty of Lisbon, horizontal amendment 2(g). Cf. OJ 17.12.2007 C 306/41..
In addition, the Articles referred to were renumbered in the amending treaty. For ease of use, the current Article 84 TEC is reproduced here in full:
Article 84 TEC
Until the entry into force of the provisions adopted in pursuance of Article 83, the authorities in Member States shall rule on the admissibility of agreements, decisions and concerted practices and on abuse of a dominant position in the common market in accordance with the law of their country and with the provisions of Article 81, in particular paragraph 3, and of Article 82.
***
For the sake of a systematic comparison, we look at the Article during the previous treaty reform stages.
First, we turn to the European Convention, which located the provisions on competition in Part III ‘The policies and functioning of the Union’, Title III ‘Internal policies and action’, Chapter I ‘Internal market’, Section 5 ‘Rules on competition’, with Subsection 1 ‘Rules applying to undertakings’.
The draft Treaty establishing a Constitution for Europe opted for the term ‘internal market’ and Article III-53 defined the legal instruments in the field of competition as ‘European regulations’. Naturally, the Articles referred to were numbered differently. Otherwise the rewording was minimal. In case someone wants to study the draft provisions more closely, the text looked like this (OJ 18.7.2003 C 169/36):
Article III-53 Draft Constitution
Until the entry into force of the European regulations adopted pursuant to Article III-52, the authorities in Member States shall rule on the admissibility of agreements, decisions and concerted practices and on abuse of a dominant position in the internal market in accordance with their internal law and Articles III-50, in particular paragraph 3, and Article III-51.
***
The location of Article III-164 of the Treaty establishing a Constitution for Europe was the same as for the corresponding provision of the draft (OJ 16.12.2004 C 310/70).
The term ‘internal law’ became ‘national law’ and the Articles referred to were numbered differently:
Article III-164 Constitution
Until the entry into force of the European regulations adopted pursuant to Article III-163, the authorities in Member States shall rule on the admissibility of agreements, decisions and concerted practices and on abuse of a dominant position in the internal market in accordance with their national law and Article III-161, in particular paragraph 3, and Article III-162.
***
We have seen that Article 104 TFEU, content to make only horizontal and technical adjustments, is almost exactly the same as the current Article 84 TEC. Thus, instead of legal instruments with distinct names, the provision refers to ‘the provisions adopted in pursuance of Article 103’.
***
What has been said about Article 104 TFEU?
United Kingdom
Professor Steve Peers covered the Treaty of Lisbon in a number of Statewatch Analyses. ‘EU Reform Treaty Analysis no. 3.3: Revised text of Part Three, Titles I to VI of the Treaty establishing the European Community (TEC): Internal Market and competition’ (Version 2, 23 October 2007) includes the current Title VI Common rules on competition, taxation and approximation of laws.
Peers highlighted the amendment to Article 84 TEC and TFEU (ToL), to be renumbered Article 104 TFEU in the consolidated version, without comment (page 25).
The analysis 3.3 and other useful Statewatch analyses are available through:
http://www.statewatch.org/euconstitution.htm
***
The Foreign and Commonwealth Office (FCO) offers a convenient source of brief annotations on Lisbon Treaty amendments in ‘A comparative table of the current EC and EU treaties as amended by the Treaty of Lisbon’ (Command Paper 7311, published 21 January 2008). It offers the following comment on Article 104 TFEU, Article 84 TFEU (ToL) in the original Lisbon Treaty (page 11):
“Unchanged from Article 84 TEC.”
The FCO comparative table is available at:
http://www.official-documents.gov.uk/document/cm73/7311/7311.asp
***
The UK House of Commons Library Research Paper 07/86 ‘The Treaty of Lisbon: amendments to the Treaty establishing the European Community’ (published 6 December 2007) discussed competition on pages 57 to 60. It commented on Articles 81 and 82 as well as Article 85 TEC and ToL on page 58, but Article 84 TEC and ToL drew no comment.
The Library Research Paper 07/86 is available at:
http://www.parliament.uk/commons/lib/research/rp2007/rp07-086.pdf
***
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 internal market and competition on pages 218 and 219.
The main discussion centred on concerns about the removal of ‘free and undistorted competition’ (according to Article I-3(2) of the Constitutional Treaty objectives), but the Committee offered the following statement on the contents of the competition provisions (page 218):
“9.14. The rules on competition contained in previous treaties would be unchanged by the Lisbon Treaty. Articles 101–103 of the TFEU are the same as Articles 81–83 of the TEC. They give the EU power to legislate to combat practices “which have as their object or effect the prevention, restriction or distortion of competition”.
As we see, Article 104 TFEU (Article 84 TEC and ToL) was not mentioned.
The report is accessible at:
http://www.publications.parliament.uk/pa/ld200708/ldselect/ldeucom/62/62.pdf
***
Sweden
The consultation paper of the government of Sweden, ‘Lissabonfördraget; Statsrådsberedningen, Departementsserien (Ds), Ds 2007:48’ published 20 December 2007, deals with the internal market on pages 261 to 269, ’22.1 Inre marknaden’. There is a brief description of the existing competition rules, Articles 81 to 89 TEC, on page 262.
On pages 265 to 266 the consultation paper explains the amendments to the competition rules (Konkurrensregler), but there are no specific comments on Article 84 TFEU (ToL).
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), includes only a short comment on the unchanged nature of Article 84 TFEU (ToL), renumbered Article 104 TFEU (on page 207):
”84 artiklaa (uusi 104 artikla), joka koskee 83 artiklan nojalla annettujen asetusten ja direktiivien täytäntöönpanoa jäsenvaltioissa, ei muuteta.”
The Finnish ratification 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 rd), offers the same brief observation about Article 84 TFEU (ToL), the future Article 104 TFEU, on page 210:
”Artikel 84 (blivande artikel 104), som gäller genomförandet av förordningar och direktiv som antagits med stöd av artikel 83, ändras inte.”
The ratification bill in Swedish can be accessed at:
http://www.finlex.fi/sv/esitykset/he/2008/20080023.pdf
***
European Community (European Union) competition law and policy is a developed area, with treaty provisions, secondary legislation, supplementing guidelines and a significant body of case law.
Today, areas not covered by EC law seem marginal or inexistent, especially after Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (Text with EEA relevance), as amended by Regulations No 411/2004 and 1419/2006:
Council Regulation (EC) No 411/2004 of 26 February 2004 repealing Regulation (EEC) No 3975/87 and amending Regulations (EEC) No 3976/87 and (EC) No 1/2003, in connection with air transport between the Community and third countries (Text with EEA relevance)
Council Regulation (EC) No 1419/2006 of 25 September 2006 repealing Regulation (EEC) No 4056/86 laying down detailed rules for the application of Articles 85 and 86 of the Treaty to maritime transport, and amending Regulation (EC) No 1/2003 as regards the extension of its scope to include cabotage and international tramp services (Text with EEA relevance)
For convenience, see the consolidated version of Regulation 1/2003:
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CONSLEG:2003R0001:20061018:EN:PDF
In addition, we take note of the Article 3(1)(b) TFEU, on the future competition law of the European Union:
1. The Union shall have exclusive competence in the following areas:
---
(b) the establishing of the competition rules necessary for the functioning of the internal market;
---
If the Treaty of Lisbon enters into force, a reform of the policy areas in the EU treaties, especially the TFEU, seems to be called for, if only to rid the treaties of more or less redundant provisions.
Ralf Grahn
Wednesday, 28 May 2008
EU TFEU: Competition regulations and directives
The Council’s powers to lay down competition rules are unaffected by the EU Treaty of Lisbon.
***
Article 103 of the Treaty on the Functioning of the European Union (TFEU) is found in the consolidated version of the Treaty on European Union and the Treaty on the Functioning of the European Union, published in the Official Journal of the European Union, OJ 9.5.2008 C 115/89–90:
Part Three ‘Policies and internal actions of the Union’
Title VII Common rules on competition, taxation and approximation of laws
Chapter 1 Rules on competition
Section 1 Rules applying to undertakings
Article 103 TFEU
(ex Article 83 TEC)
1. The appropriate regulations or directives to give effect to the principles set out in Articles 101 and 102 shall be laid down by the Council, on a proposal from the Commission and after consulting the European Parliament.
2. The regulations or directives referred to in paragraph 1 shall be designed in particular:
(a) to ensure compliance with the prohibitions laid down in Article 101(1) and in Article 102 by making provision for fines and periodic penalty payments;
(b) to lay down detailed rules for the application of Article 101(3), taking into account the need to ensure effective supervision on the one hand, and to simplify administration to the greatest possible extent on the other;
(c) to define, if need be, in the various branches of the economy, the scope of the provisions of Articles 101 and 102;
(d) to define the respective functions of the Commission and of the Court of Justice of the European Union in applying the provisions laid down in this paragraph;
(e) to determine the relationship between national laws and the provisions contained in this Section or adopted pursuant to this Article.
***
In Article 2, point 75 of the Treaty of Lisbon (ToL) the intergovernmental conference (IGC 2007) laid out the specific amendments to Article 80 TEC and point 76 amended Article 85 TEC. Thus, no specific amendments were made to Article 83 TEC (OJ 17.12.2007 C 306/68).
***
The TFEU table of equivalences tells us that Article 83 TEC first became Article 83 TFEU (ToL) in the original Treaty of LIsbon, but later renumbered Article 103 TFEU in the consolidated version (OJ 17.12.2007 C 306/211).
***
The current Article 83 of the Treaty establishing the European Community (TEC) is found under Title VI ‘Common rules on competition, taxation and approximation of laws’, Chapter 1 ‘Rules on competition’, Section 1 ‘Rules applying to undertakings’, in the latest consolidated version of the treaties in force (OJ 29.12.2006 C 321 E/75).
In Article 103(1) TFEU the words ‘acting by a qualified majority’ were deleted in accordance with the Article 2 of the Treaty of Lisbon, horizontal amendment 2(d), and in Article 103(2)(d) the ‘Court of Justice’ became the ‘Court of Justice of the European Union’, as stated in horizontal amendment 7. Cf. OJ 17.12.2007 C 306/41 and 43.
In addition, the Articles referred to throughout have been renumbered in the amending treaty. For ease of use, Article 83 TEC is reproduced here in full:
Article 83 TEC
1. The appropriate regulations or directives to give effect to the principles set out in Articles 81 and 82 shall be laid down by the Council, acting by a qualified majority on a proposal from the Commission and after consulting the European Parliament.
2. The regulations or directives referred to in paragraph 1 shall be designed in particular:
(a) to ensure compliance with the prohibitions laid down in Article 81(1) and in Article 82 by making provision for fines and periodic penalty payments;
(b) to lay down detailed rules for the application of Article 81(3), taking into account the need to ensure effective supervision on the one hand, and to simplify administration to the greatest possible extent on the other;
(c) to define, if need be, in the various branches of the economy, the scope of the provisions of Articles 81 and 82;
(d) to define the respective functions of the Commission and of the Court of Justice in applying the provisions laid down in this paragraph;
(e) to determine the relationship between national laws and the provisions contained in this Section or adopted pursuant to this Article.
***
For the sake of a systematic comparison, we look at the Article during the previous treaty reform stages.
First, we turn to the European Convention, which located the provisions on competition in Part III ‘The policies and functioning of the Union’, Title III ‘Internal policies and action’, Chapter I ‘Internal market’, Section 5 ‘Rules on competition’, with Subsection 1 ‘Rules applying to undertakings’.
The draft Treaty establishing a Constitution for Europe the first paragraph was slightly reworded and the draft used the term ‘Council of Ministers’ and the legal instruments to be used pursuant to Article III-52 were defined as ‘European regulations’. Naturally, the Articles referred to were numbered differently. In case someone wants to study the draft provisions more closely, the text looked like this (OJ 18.7.2003 C 169/36):
Article III-52 Draft Constitution
1. The Council of Ministers, on a proposal from the Commission, shall adopt the European regulations to give effect to the principles set out in Articles III-50 and III-51. It shall act after consulting the European Parliament.
2. The European regulations referred to in paragraph 1 shall be designed in particular:
(a) to ensure compliance with the prohibitions laid down in Article III-50(1) and in Article III-51 by making provision for fines and periodic penalty payments;
(b) to lay down detailed rules for the application of Article III-50(3), taking into account the need to ensure effective supervision on the one hand, and to simplify administration to the greatest possible extent on the other;
(c) to define, if need be, in the various branches of the economy, the scope of the provisions of Articles III-50 and III-51;
(d) to define the respective functions of the Commission and of the Court of Justice in applying the provisions laid down in this paragraph;
(e) to determine the relationship between national laws and this Section or the European regulations adopted pursuant to this Article.
***
The location of Article III-162 of the Treaty establishing a Constitution for Europe was the same as for the corresponding provision of the draft (OJ 16.12.2004 C 310/69–70).
The ‘Council of Ministers’ became the ‘Council’, ‘Such regulations’ replaced ‘The European regulations referred to in paragraph 1’, the ‘Court of Justice of the European Union’ replaced the ‘Court of Justice’ and ‘national laws and this Section’ became ‘Member States’ laws and this Subsection’.
We take note of the fact that (European) regulations were the intended legal instruments. The numbering of the Articles referred to was different from the draft:
Article III-163 Constitution
The Council, on a proposal from the Commission, shall adopt the European regulations to give effect to the principles set out in Articles III‑161 and III‑162. It shall act after consulting the European Parliament.
Such regulations shall be designed in particular:
(a) to ensure compliance with the prohibitions laid down in Article III-161(1) and in Article III-162 by making provision for fines and periodic penalty payments;
(b) to lay down detailed rules for the application of Article III-161(3), taking into account the need to ensure effective supervision on the one hand, and to simplify administration to the greatest possible extent on the other;
(c) to define, if need be, in the various branches of the economy, the scope of Articles III-161 and III-162;
(d) to define the respective functions of the Commission and of the Court of Justice of the European Union in applying the provisions laid down in this paragraph;
(e) to determine the relationship between Member States' laws and this Subsection as well as the European regulations adopted pursuant to this Article.
***
We have seen that Article 103 TFEU, content to make only horizontal and technical adjustments, is almost exactly the same as the current Article 83 TEC. Thus, the legal instruments are still described as ‘regulations or directives’.
***
What has been said about Article 103 TFEU?
United Kingdom
Professor Steve Peers covered the Treaty of Lisbon in a number of Statewatch Analyses. ‘EU Reform Treaty Analysis no. 3.3: Revised text of Part Three, Titles I to VI of the Treaty establishing the European Community (TEC): Internal Market and competition’ (Version 2, 23 October 2007) includes the current Title VI Common rules on competition, taxation and approximation of laws.
Peers highlighted the amendments to Article 83 TEC and TFEU (ToL), to be renumbered Article 103 TFEU in the consolidated version, without comment (page 25).
The analysis 3.3 and other useful Statewatch analyses are available through:
http://www.statewatch.org/euconstitution.htm
***
The Foreign and Commonwealth Office (FCO) offers a convenient source of brief annotations on Lisbon Treaty amendments in ‘A comparative table of the current EC and EU treaties as amended by the Treaty of Lisbon’ (Command Paper 7311, published 21 January 2008). It offers the following comment on Article 103 TFEU, Article 83 TFEU (ToL) in the original Lisbon Treaty (page 11):
“Unchanged from Article 83 TEC.”
The FCO comparative table is available at:
http://www.official-documents.gov.uk/document/cm73/7311/7311.asp
***
The UK House of Commons Library Research Paper 07/86 ‘The Treaty of Lisbon: amendments to the Treaty establishing the European Community’ (published 6 December 2007) discussed competition on page 57 to 60. It commented on Articles 81 and 82 as well as Article 85 TEC and ToL on page 58, but Article 83 TEC and ToL drew no comment.
The Library Research Paper 07/86 is available at:
http://www.parliament.uk/commons/lib/research/rp2007/rp07-086.pdf
***
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 internal market and competition on pages 218 and 219.
The main discussion centred around concerns about the removal of ‘free and undistorted competition’ (according to Article I-3(2) of the Constitutional Treaty objectives), but the Committee offered the following statement on the contents of the competition provisions (page 218):
“9.14. The rules on competition contained in previous treaties would be unchanged by the Lisbon Treaty. Articles 101–103 of the TFEU are the same as Articles 81–83 of the TEC. They give the EU power to legislate to combat practices “which have as their object or effect the prevention, restriction or distortion of competition”.
The report is accessible at:
http://www.publications.parliament.uk/pa/ld200708/ldselect/ldeucom/62/62.pdf
***
Sweden
The consultation paper of the government of Sweden, ‘Lissabonfördraget; Statsrådsberedningen, Departementsserien (Ds), Ds 2007:48’ published 20 December 2007, deals with the internal market on pages 261 to 269, ’22.1 Inre marknaden’. There is a brief description of the existing competition rules, Articles 81 to 89 TEC, on page 262.
On pages 265 to 266 the consultation paper explains the amendments to the competition rules (Konkurrensregler), but there are no specific comments on Article 83 TFEU (ToL).
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), includes only a short comment on the unchanged nature of Article 83 TFEU (ToL), renumbered Article 103 TFEU (on page 207):
”83 artiklaa (uusi 103 artikla), jossa määrätään 81 ja 82 artiklassa tarkoitettujen periaatteiden soveltamista koskevien neuvoston asetusten ja direktiivien antamisesta, ei muuteta.”
The Finnish ratification 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 rd), offers the same brief observation about Article 83 TFEU (ToL), the future Article 103 TFEU, on page 210:
”Artikel 83 (blivande artikel 103), där det föreskrivs om fastställandet av de förordningar och direktiv som gäller de principer som anges i artiklarna 81 och 82, ändras inte.”
The ratification bill in Swedish can be accessed at:
http://www.finlex.fi/sv/esitykset/he/2008/20080023.pdf
Ralf Grahn
***
Article 103 of the Treaty on the Functioning of the European Union (TFEU) is found in the consolidated version of the Treaty on European Union and the Treaty on the Functioning of the European Union, published in the Official Journal of the European Union, OJ 9.5.2008 C 115/89–90:
Part Three ‘Policies and internal actions of the Union’
Title VII Common rules on competition, taxation and approximation of laws
Chapter 1 Rules on competition
Section 1 Rules applying to undertakings
Article 103 TFEU
(ex Article 83 TEC)
1. The appropriate regulations or directives to give effect to the principles set out in Articles 101 and 102 shall be laid down by the Council, on a proposal from the Commission and after consulting the European Parliament.
2. The regulations or directives referred to in paragraph 1 shall be designed in particular:
(a) to ensure compliance with the prohibitions laid down in Article 101(1) and in Article 102 by making provision for fines and periodic penalty payments;
(b) to lay down detailed rules for the application of Article 101(3), taking into account the need to ensure effective supervision on the one hand, and to simplify administration to the greatest possible extent on the other;
(c) to define, if need be, in the various branches of the economy, the scope of the provisions of Articles 101 and 102;
(d) to define the respective functions of the Commission and of the Court of Justice of the European Union in applying the provisions laid down in this paragraph;
(e) to determine the relationship between national laws and the provisions contained in this Section or adopted pursuant to this Article.
***
In Article 2, point 75 of the Treaty of Lisbon (ToL) the intergovernmental conference (IGC 2007) laid out the specific amendments to Article 80 TEC and point 76 amended Article 85 TEC. Thus, no specific amendments were made to Article 83 TEC (OJ 17.12.2007 C 306/68).
***
The TFEU table of equivalences tells us that Article 83 TEC first became Article 83 TFEU (ToL) in the original Treaty of LIsbon, but later renumbered Article 103 TFEU in the consolidated version (OJ 17.12.2007 C 306/211).
***
The current Article 83 of the Treaty establishing the European Community (TEC) is found under Title VI ‘Common rules on competition, taxation and approximation of laws’, Chapter 1 ‘Rules on competition’, Section 1 ‘Rules applying to undertakings’, in the latest consolidated version of the treaties in force (OJ 29.12.2006 C 321 E/75).
In Article 103(1) TFEU the words ‘acting by a qualified majority’ were deleted in accordance with the Article 2 of the Treaty of Lisbon, horizontal amendment 2(d), and in Article 103(2)(d) the ‘Court of Justice’ became the ‘Court of Justice of the European Union’, as stated in horizontal amendment 7. Cf. OJ 17.12.2007 C 306/41 and 43.
In addition, the Articles referred to throughout have been renumbered in the amending treaty. For ease of use, Article 83 TEC is reproduced here in full:
Article 83 TEC
1. The appropriate regulations or directives to give effect to the principles set out in Articles 81 and 82 shall be laid down by the Council, acting by a qualified majority on a proposal from the Commission and after consulting the European Parliament.
2. The regulations or directives referred to in paragraph 1 shall be designed in particular:
(a) to ensure compliance with the prohibitions laid down in Article 81(1) and in Article 82 by making provision for fines and periodic penalty payments;
(b) to lay down detailed rules for the application of Article 81(3), taking into account the need to ensure effective supervision on the one hand, and to simplify administration to the greatest possible extent on the other;
(c) to define, if need be, in the various branches of the economy, the scope of the provisions of Articles 81 and 82;
(d) to define the respective functions of the Commission and of the Court of Justice in applying the provisions laid down in this paragraph;
(e) to determine the relationship between national laws and the provisions contained in this Section or adopted pursuant to this Article.
***
For the sake of a systematic comparison, we look at the Article during the previous treaty reform stages.
First, we turn to the European Convention, which located the provisions on competition in Part III ‘The policies and functioning of the Union’, Title III ‘Internal policies and action’, Chapter I ‘Internal market’, Section 5 ‘Rules on competition’, with Subsection 1 ‘Rules applying to undertakings’.
The draft Treaty establishing a Constitution for Europe the first paragraph was slightly reworded and the draft used the term ‘Council of Ministers’ and the legal instruments to be used pursuant to Article III-52 were defined as ‘European regulations’. Naturally, the Articles referred to were numbered differently. In case someone wants to study the draft provisions more closely, the text looked like this (OJ 18.7.2003 C 169/36):
Article III-52 Draft Constitution
1. The Council of Ministers, on a proposal from the Commission, shall adopt the European regulations to give effect to the principles set out in Articles III-50 and III-51. It shall act after consulting the European Parliament.
2. The European regulations referred to in paragraph 1 shall be designed in particular:
(a) to ensure compliance with the prohibitions laid down in Article III-50(1) and in Article III-51 by making provision for fines and periodic penalty payments;
(b) to lay down detailed rules for the application of Article III-50(3), taking into account the need to ensure effective supervision on the one hand, and to simplify administration to the greatest possible extent on the other;
(c) to define, if need be, in the various branches of the economy, the scope of the provisions of Articles III-50 and III-51;
(d) to define the respective functions of the Commission and of the Court of Justice in applying the provisions laid down in this paragraph;
(e) to determine the relationship between national laws and this Section or the European regulations adopted pursuant to this Article.
***
The location of Article III-162 of the Treaty establishing a Constitution for Europe was the same as for the corresponding provision of the draft (OJ 16.12.2004 C 310/69–70).
The ‘Council of Ministers’ became the ‘Council’, ‘Such regulations’ replaced ‘The European regulations referred to in paragraph 1’, the ‘Court of Justice of the European Union’ replaced the ‘Court of Justice’ and ‘national laws and this Section’ became ‘Member States’ laws and this Subsection’.
We take note of the fact that (European) regulations were the intended legal instruments. The numbering of the Articles referred to was different from the draft:
Article III-163 Constitution
The Council, on a proposal from the Commission, shall adopt the European regulations to give effect to the principles set out in Articles III‑161 and III‑162. It shall act after consulting the European Parliament.
Such regulations shall be designed in particular:
(a) to ensure compliance with the prohibitions laid down in Article III-161(1) and in Article III-162 by making provision for fines and periodic penalty payments;
(b) to lay down detailed rules for the application of Article III-161(3), taking into account the need to ensure effective supervision on the one hand, and to simplify administration to the greatest possible extent on the other;
(c) to define, if need be, in the various branches of the economy, the scope of Articles III-161 and III-162;
(d) to define the respective functions of the Commission and of the Court of Justice of the European Union in applying the provisions laid down in this paragraph;
(e) to determine the relationship between Member States' laws and this Subsection as well as the European regulations adopted pursuant to this Article.
***
We have seen that Article 103 TFEU, content to make only horizontal and technical adjustments, is almost exactly the same as the current Article 83 TEC. Thus, the legal instruments are still described as ‘regulations or directives’.
***
What has been said about Article 103 TFEU?
United Kingdom
Professor Steve Peers covered the Treaty of Lisbon in a number of Statewatch Analyses. ‘EU Reform Treaty Analysis no. 3.3: Revised text of Part Three, Titles I to VI of the Treaty establishing the European Community (TEC): Internal Market and competition’ (Version 2, 23 October 2007) includes the current Title VI Common rules on competition, taxation and approximation of laws.
Peers highlighted the amendments to Article 83 TEC and TFEU (ToL), to be renumbered Article 103 TFEU in the consolidated version, without comment (page 25).
The analysis 3.3 and other useful Statewatch analyses are available through:
http://www.statewatch.org/euconstitution.htm
***
The Foreign and Commonwealth Office (FCO) offers a convenient source of brief annotations on Lisbon Treaty amendments in ‘A comparative table of the current EC and EU treaties as amended by the Treaty of Lisbon’ (Command Paper 7311, published 21 January 2008). It offers the following comment on Article 103 TFEU, Article 83 TFEU (ToL) in the original Lisbon Treaty (page 11):
“Unchanged from Article 83 TEC.”
The FCO comparative table is available at:
http://www.official-documents.gov.uk/document/cm73/7311/7311.asp
***
The UK House of Commons Library Research Paper 07/86 ‘The Treaty of Lisbon: amendments to the Treaty establishing the European Community’ (published 6 December 2007) discussed competition on page 57 to 60. It commented on Articles 81 and 82 as well as Article 85 TEC and ToL on page 58, but Article 83 TEC and ToL drew no comment.
The Library Research Paper 07/86 is available at:
http://www.parliament.uk/commons/lib/research/rp2007/rp07-086.pdf
***
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 internal market and competition on pages 218 and 219.
The main discussion centred around concerns about the removal of ‘free and undistorted competition’ (according to Article I-3(2) of the Constitutional Treaty objectives), but the Committee offered the following statement on the contents of the competition provisions (page 218):
“9.14. The rules on competition contained in previous treaties would be unchanged by the Lisbon Treaty. Articles 101–103 of the TFEU are the same as Articles 81–83 of the TEC. They give the EU power to legislate to combat practices “which have as their object or effect the prevention, restriction or distortion of competition”.
The report is accessible at:
http://www.publications.parliament.uk/pa/ld200708/ldselect/ldeucom/62/62.pdf
***
Sweden
The consultation paper of the government of Sweden, ‘Lissabonfördraget; Statsrådsberedningen, Departementsserien (Ds), Ds 2007:48’ published 20 December 2007, deals with the internal market on pages 261 to 269, ’22.1 Inre marknaden’. There is a brief description of the existing competition rules, Articles 81 to 89 TEC, on page 262.
On pages 265 to 266 the consultation paper explains the amendments to the competition rules (Konkurrensregler), but there are no specific comments on Article 83 TFEU (ToL).
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), includes only a short comment on the unchanged nature of Article 83 TFEU (ToL), renumbered Article 103 TFEU (on page 207):
”83 artiklaa (uusi 103 artikla), jossa määrätään 81 ja 82 artiklassa tarkoitettujen periaatteiden soveltamista koskevien neuvoston asetusten ja direktiivien antamisesta, ei muuteta.”
The Finnish ratification 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 rd), offers the same brief observation about Article 83 TFEU (ToL), the future Article 103 TFEU, on page 210:
”Artikel 83 (blivande artikel 103), där det föreskrivs om fastställandet av de förordningar och direktiv som gäller de principer som anges i artiklarna 81 och 82, ändras inte.”
The ratification bill in Swedish can be accessed at:
http://www.finlex.fi/sv/esitykset/he/2008/20080023.pdf
Ralf Grahn
Tuesday, 27 May 2008
EU TFEU: Competition law: Abuse of dominant position
Yesterday we saw that agreements to distort competition continue to be prohibited in the internal market. In the same way the EU Treaty of Lisbon bans the abuse of a dominant position by a firm.
***
Article 102 of the Treaty on the Functioning of the European Union (TFEU) is found in the consolidated version of the Treaty on European Union and the Treaty on the Functioning of the European Union, published in the Official Journal of the European Union, OJ 9.5.2008 C 115/89:
Part Three ‘Policies and internal actions of the Union’
Title VII Common rules on competition, taxation and approximation of laws
Chapter 1 Rules on competition
Section 1 Rules applying to undertakings
Article 102 TFEU
(ex Article 82 TEC)
Any abuse by one or more undertakings of a dominant position within the internal market or in a substantial part of it shall be prohibited as incompatible with the internal market in so far as it may affect trade between Member States.
Such abuse may, in particular, consist in:
(a) directly or indirectly imposing unfair purchase or selling prices or other unfair trading conditions;
(b) limiting production, markets or technical development to the prejudice of consumers;
(c) applying dissimilar conditions to equivalent transactions with other trading parties, thereby placing them at a competitive disadvantage;
(d) making the conclusion of contracts subject to acceptance by the other parties of supplementary obligations which, by their nature or according to commercial usage, have no connection with the subject of such contracts.
***
In Article 2, point 75 of the Treaty of Lisbon (ToL) the intergovernmental conference (IGC 2007) laid out the specific amendments to Article 80 TEC and point 76 amended Article 85 TEC. Thus, no specific amendments were made to Article 82 TEC (OJ 17.12.2007 C 306/68).
***
The TFEU table of equivalences tells us that Article 82 TEC first became Article 82 TFEU (ToL) in the original Treaty of LIsbon, but later renumbered Article 102 TFEU in the consolidated version (OJ 17.12.2007 C 306/211).
***
The current Article 82 of the Treaty establishing the European Community (TEC) is found under Title VI ‘Common rules on competition, taxation and approximation of laws’, Chapter 1 ‘Rules on competition’, Section 1 ‘Rules applying to undertakings’, in the latest consolidated version of the treaties in force (OJ 29.12.2006 C 321 E/74–75).
The only change made by Article 102 TFEU was to replace, twice, the words ‘common market’ by ‘internal market’ in the first paragraph, according to horizontal amendment 2(g). Cf. above and OJ 17.12.2007 C 306/41.
Therefore, Article 82 TEC is not reproduced here.
***
For the sake of a systematic comparison, we look at the Article during the previous treaty reform stages.
First, we turn to the European Convention, which located the provisions on competition in Part III ‘The policies and functioning of the Union’, Title III ‘Internal policies and action’, Chapter I ‘Internal market’, Section 5 ‘Rules on competition’, with Subsection 1 ‘Rules applying to undertakings’.
In Article III-51 of the draft Treaty establishing a Constitution for Europe the words ‘internal market’ were used in the first paragraph instead of ‘common market’, and the provision was exactly the same as the future Article 102 TFEU (OJ 18.7.2003 C 169/36).
***
The location and wording of Article III-162 of the Treaty establishing a Constitution for Europe was the same as for the corresponding provision of the draft (OJ 16.12.2004 C 310/69).
***
We have seen that Article 102 TFEU is almost exactly the same as the current Article 82 TEC, the only difference being the systematic use of ‘internal market’ instead of the older expression ‘common market’.
Two reminders:
First, according to Article 3(1)(b) TFEU the EU has exclusive competence in ‘the establishing of the competition rules necessary for the functioning of the internal market’.
Second, yesterday’s posting looked at the discussion caused by the disappearance of ‘free and undistorted’ competition from the objectives of the European Union between two intergovernmental conferences.
***
What has been said about Article 102 TFEU?
United Kingdom
Professor Steve Peers covered the Treaty of Lisbon in a number of Statewatch Analyses. ‘EU Reform Treaty Analysis no. 3.3: Revised text of Part Three, Titles I to VI of the Treaty establishing the European Community (TEC): Internal Market and competition’ (Version 2, 23 October 2007) includes the current Title VI Common rules on competition, taxation and approximation of laws.
Peers highlighted the amendment to Article 82 TEC and TFEU (ToL), to be renumbered Article 102 TFEU in the consolidated version, without comment (page 24–25).
The analysis 3.3 and other useful Statewatch analyses are available through:
http://www.statewatch.org/euconstitution.htm
***
The Foreign and Commonwealth Office (FCO) offers a convenient source of brief annotations on Lisbon Treaty amendments in ‘A comparative table of the current EC and EU treaties as amended by the Treaty of Lisbon’ (Command Paper 7311, published 21 January 2008). It offers the following comment on Article 102 TFEU, Article 82 TFEU (ToL) in the original Lisbon Treaty (page 11):
“Unchanged from Article 82 TEC.”
The FCO comparative table is available at:
http://www.official-documents.gov.uk/document/cm73/7311/7311.asp
***
The UK House of Commons Library Research Paper 07/86 ‘The Treaty of Lisbon: amendments to the Treaty establishing the European Community’ (published 6 December 2007) discussed competition on page 57 to 60. It commented on Article 81 TEC (the subject of yesterday’s posting) and Article 82 TEC on page 58:
“Present Article 81 TEC prohibits agreements, decisions and concerted practices (“anticompetitive agreements”) which prevent, restrict or distort competition. As one of the EU’s two main competition provisions, a substantial body of case law surrounds the interpretation of this Article. It forms the basis in the Competition Act 1998 for the Chapter I Prohibition of the UK’s domestic competition regime (ss.2, 9). Article 82 TEC is the other main competition article, prohibiting abuse of a dominant position (i.e. monopolistic abuse), which forms the basis for section 18 of the Competition Act 1998. There are no significant changes to either of these provisions in the TFEU.”
The Library Research Paper 07/86 is available at:
http://www.parliament.uk/commons/lib/research/rp2007/rp07-086.pdf
***
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 internal market and competition on pages 218 and 219.
The main discussion centred around concerns about the removal of ‘free and undistorted competition’ (according to Article I-3(2) of the Constitutional Treaty objectives), but the Committee offered the following statement on the contents of the competition provisions (page 218):
“9.14. The rules on competition contained in previous treaties would be unchanged by the Lisbon Treaty. Articles 101–103 of the TFEU are the same as Articles 81–83 of the TEC. They give the EU power to legislate to combat practices “which have as their object or effect the prevention, restriction or distortion of competition”.
The report is accessible at:
http://www.publications.parliament.uk/pa/ld200708/ldselect/ldeucom/62/62.pdf
***
Sweden
The consultation paper of the government of Sweden, ‘Lissabonfördraget; Statsrådsberedningen, Departementsserien (Ds), Ds 2007:48’ published 20 December 2007, deals with the internal market on pages 261 to 269, ’22.1 Inre marknaden’. On pages 265 to 266 the consultation paper explains the amendments to the competition rules (Konkurrensregler), but there are no specific comments on Articles 81 and 82 TFEU (ToL).
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), includes only a short comment on the unchanged nature of Article 82 TFEU (ToL), renumbered Article 102 TFEU (on page 207):
”82 artiklaa (uusi 102 artikla), joka koskee määräävän markkina-aseman väärinkäyttöä, ei muuteta.”
The Finnish ratification 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 rd), offers the same brief observation about Article 82 TFEU (ToL), the future Article 102 TFEU, on page 210:
”Artikel 82 (blivande artikel 102), som gäller missbruk av en dominerande ställning på marknaden, ändras inte.”
The ratification bill in Swedish can be accessed at:
http://www.finlex.fi/sv/esitykset/he/2008/20080023.pdf
Ralf Grahn
***
Article 102 of the Treaty on the Functioning of the European Union (TFEU) is found in the consolidated version of the Treaty on European Union and the Treaty on the Functioning of the European Union, published in the Official Journal of the European Union, OJ 9.5.2008 C 115/89:
Part Three ‘Policies and internal actions of the Union’
Title VII Common rules on competition, taxation and approximation of laws
Chapter 1 Rules on competition
Section 1 Rules applying to undertakings
Article 102 TFEU
(ex Article 82 TEC)
Any abuse by one or more undertakings of a dominant position within the internal market or in a substantial part of it shall be prohibited as incompatible with the internal market in so far as it may affect trade between Member States.
Such abuse may, in particular, consist in:
(a) directly or indirectly imposing unfair purchase or selling prices or other unfair trading conditions;
(b) limiting production, markets or technical development to the prejudice of consumers;
(c) applying dissimilar conditions to equivalent transactions with other trading parties, thereby placing them at a competitive disadvantage;
(d) making the conclusion of contracts subject to acceptance by the other parties of supplementary obligations which, by their nature or according to commercial usage, have no connection with the subject of such contracts.
***
In Article 2, point 75 of the Treaty of Lisbon (ToL) the intergovernmental conference (IGC 2007) laid out the specific amendments to Article 80 TEC and point 76 amended Article 85 TEC. Thus, no specific amendments were made to Article 82 TEC (OJ 17.12.2007 C 306/68).
***
The TFEU table of equivalences tells us that Article 82 TEC first became Article 82 TFEU (ToL) in the original Treaty of LIsbon, but later renumbered Article 102 TFEU in the consolidated version (OJ 17.12.2007 C 306/211).
***
The current Article 82 of the Treaty establishing the European Community (TEC) is found under Title VI ‘Common rules on competition, taxation and approximation of laws’, Chapter 1 ‘Rules on competition’, Section 1 ‘Rules applying to undertakings’, in the latest consolidated version of the treaties in force (OJ 29.12.2006 C 321 E/74–75).
The only change made by Article 102 TFEU was to replace, twice, the words ‘common market’ by ‘internal market’ in the first paragraph, according to horizontal amendment 2(g). Cf. above and OJ 17.12.2007 C 306/41.
Therefore, Article 82 TEC is not reproduced here.
***
For the sake of a systematic comparison, we look at the Article during the previous treaty reform stages.
First, we turn to the European Convention, which located the provisions on competition in Part III ‘The policies and functioning of the Union’, Title III ‘Internal policies and action’, Chapter I ‘Internal market’, Section 5 ‘Rules on competition’, with Subsection 1 ‘Rules applying to undertakings’.
In Article III-51 of the draft Treaty establishing a Constitution for Europe the words ‘internal market’ were used in the first paragraph instead of ‘common market’, and the provision was exactly the same as the future Article 102 TFEU (OJ 18.7.2003 C 169/36).
***
The location and wording of Article III-162 of the Treaty establishing a Constitution for Europe was the same as for the corresponding provision of the draft (OJ 16.12.2004 C 310/69).
***
We have seen that Article 102 TFEU is almost exactly the same as the current Article 82 TEC, the only difference being the systematic use of ‘internal market’ instead of the older expression ‘common market’.
Two reminders:
First, according to Article 3(1)(b) TFEU the EU has exclusive competence in ‘the establishing of the competition rules necessary for the functioning of the internal market’.
Second, yesterday’s posting looked at the discussion caused by the disappearance of ‘free and undistorted’ competition from the objectives of the European Union between two intergovernmental conferences.
***
What has been said about Article 102 TFEU?
United Kingdom
Professor Steve Peers covered the Treaty of Lisbon in a number of Statewatch Analyses. ‘EU Reform Treaty Analysis no. 3.3: Revised text of Part Three, Titles I to VI of the Treaty establishing the European Community (TEC): Internal Market and competition’ (Version 2, 23 October 2007) includes the current Title VI Common rules on competition, taxation and approximation of laws.
Peers highlighted the amendment to Article 82 TEC and TFEU (ToL), to be renumbered Article 102 TFEU in the consolidated version, without comment (page 24–25).
The analysis 3.3 and other useful Statewatch analyses are available through:
http://www.statewatch.org/euconstitution.htm
***
The Foreign and Commonwealth Office (FCO) offers a convenient source of brief annotations on Lisbon Treaty amendments in ‘A comparative table of the current EC and EU treaties as amended by the Treaty of Lisbon’ (Command Paper 7311, published 21 January 2008). It offers the following comment on Article 102 TFEU, Article 82 TFEU (ToL) in the original Lisbon Treaty (page 11):
“Unchanged from Article 82 TEC.”
The FCO comparative table is available at:
http://www.official-documents.gov.uk/document/cm73/7311/7311.asp
***
The UK House of Commons Library Research Paper 07/86 ‘The Treaty of Lisbon: amendments to the Treaty establishing the European Community’ (published 6 December 2007) discussed competition on page 57 to 60. It commented on Article 81 TEC (the subject of yesterday’s posting) and Article 82 TEC on page 58:
“Present Article 81 TEC prohibits agreements, decisions and concerted practices (“anticompetitive agreements”) which prevent, restrict or distort competition. As one of the EU’s two main competition provisions, a substantial body of case law surrounds the interpretation of this Article. It forms the basis in the Competition Act 1998 for the Chapter I Prohibition of the UK’s domestic competition regime (ss.2, 9). Article 82 TEC is the other main competition article, prohibiting abuse of a dominant position (i.e. monopolistic abuse), which forms the basis for section 18 of the Competition Act 1998. There are no significant changes to either of these provisions in the TFEU.”
The Library Research Paper 07/86 is available at:
http://www.parliament.uk/commons/lib/research/rp2007/rp07-086.pdf
***
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 internal market and competition on pages 218 and 219.
The main discussion centred around concerns about the removal of ‘free and undistorted competition’ (according to Article I-3(2) of the Constitutional Treaty objectives), but the Committee offered the following statement on the contents of the competition provisions (page 218):
“9.14. The rules on competition contained in previous treaties would be unchanged by the Lisbon Treaty. Articles 101–103 of the TFEU are the same as Articles 81–83 of the TEC. They give the EU power to legislate to combat practices “which have as their object or effect the prevention, restriction or distortion of competition”.
The report is accessible at:
http://www.publications.parliament.uk/pa/ld200708/ldselect/ldeucom/62/62.pdf
***
Sweden
The consultation paper of the government of Sweden, ‘Lissabonfördraget; Statsrådsberedningen, Departementsserien (Ds), Ds 2007:48’ published 20 December 2007, deals with the internal market on pages 261 to 269, ’22.1 Inre marknaden’. On pages 265 to 266 the consultation paper explains the amendments to the competition rules (Konkurrensregler), but there are no specific comments on Articles 81 and 82 TFEU (ToL).
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), includes only a short comment on the unchanged nature of Article 82 TFEU (ToL), renumbered Article 102 TFEU (on page 207):
”82 artiklaa (uusi 102 artikla), joka koskee määräävän markkina-aseman väärinkäyttöä, ei muuteta.”
The Finnish ratification 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 rd), offers the same brief observation about Article 82 TFEU (ToL), the future Article 102 TFEU, on page 210:
”Artikel 82 (blivande artikel 102), som gäller missbruk av en dominerande ställning på marknaden, ändras inte.”
The ratification bill in Swedish can be accessed at:
http://www.finlex.fi/sv/esitykset/he/2008/20080023.pdf
Ralf Grahn
Monday, 26 May 2008
EU TFEU: Competition law: Anti-competitive agreements
The Constitutional Treaty would have offered the citizens of the European Union an internal market where competition is free and undistorted. The EU Treaty of Lisbon does not mention free and undistorted competition among the objectives of the European Union.
Therefore, most of the discussion about EU competition law in the light of the Lisbon Treaty has centred upon the symbolic downgrading of competition, whereas the unchanged substantive provisions have generated sparse comment.
The first competition Article deals with anti-competitive agreements between firms.
***
We enter a new Title, Chapter and Section in order to look at competition rules in the EU Treaty of Lisbon.
Article 101 of the Treaty on the Functioning of the European Union (TFEU) is found in the consolidated version of the Treaty on European Union and the Treaty on the Functioning of the European Union, published in the Official Journal of the European Union, OJ 9.5.2008 C 115/88–89:
Part Three ‘Policies and internal actions of the Union’
Title VII Common rules on competition, taxation and approximation of laws
Chapter 1 Rules on competition
Section 1 Rules applying to undertakings
Article 101 TFEU
(ex Article 81 TEC)
1. The following shall be prohibited as incompatible with the internal market: all agreements between undertakings, decisions by associations of undertakings and concerted practices which may affect trade between Member States and which have as their object or effect the prevention, restriction or distortion of competition within the internal market, and in particular those which:
(a) directly or indirectly fix purchase or selling prices or any other trading conditions;
(b) limit or control production, markets, technical development, or investment;
(c) share markets or sources of supply;
(d) apply dissimilar conditions to equivalent transactions with other trading parties, thereby placing them at a competitive disadvantage;
(e) make the conclusion of contracts subject to acceptance by the other parties of supplementary obligations which, by their nature or according to commercial usage, have no connection with the subject of such contracts.
2. Any agreements or decisions prohibited pursuant to this Article shall be automatically void.
3. The provisions of paragraph 1 may, however, be declared inapplicable in the case of:
— any agreement or category of agreements between undertakings,
— any decision or category of decisions by associations of undertakings,
— any concerted practice or category of concerted practices,
which contributes to improving the production or distribution of goods or to promoting technical or economic progress, while allowing consumers a fair share of the resulting benefit, and which does not:
(a) impose on the undertakings concerned restrictions which are not indispensable to the attainment of these objectives;
(b) afford such undertakings the possibility of eliminating competition in respect of a substantial part of the products in question.
***
In Article 2, point 75 of the Treaty of Lisbon (ToL) the intergovernmental conference (IGC 2007) laid out the specific amendments to Article 80 TEC and in point 76 Article 85 TEC was amended. Thus, no specific amendments were made to Article 81 TEC (OJ 17.12.2007 C 306/68).
***
The TFEU table of equivalences tells us that Article 81 TEC first became Article 81 TFEU (ToL), but later renumbered Article 101 TFEU in the consolidated version (OJ 17.12.2007 C 306/211).
***
The current Article 81 of the Treaty establishing the European Community (TEC) is found under Title VI ‘Common rules on competition, taxation and approximation of laws’, Chapter 1 ‘Rules on competition’, Section 1 ‘Rules applying to undertakings’, in the latest consolidated version of the treaties in force (OJ 29.12.2006 C 321 E/73–74).
The only change made by Article 101 TFEU was to replace the words ‘common market’ by ‘internal market’ twice in the first paragraph, according to horizontal amendment 2(g). Cf. above and OJ 17.12.2007 C 306/41.
Therefore, Article 81 TEC is not reproduced here.
***
For the sake of a systematic comparison, we look at the Article during the previous treaty reform stages.
First, we turn to the European Convention, which located the provisions on competition in Part III ‘The policies and functioning of the Union’, Title III ‘Internal policies and action’, Chapter I ‘Internal market’, Section 5 ‘Rules on competition’, with Subsection 1 ‘Rules applying to undertakings’.
In Article III-50 of the draft Treaty establishing a Constitution for Europe the words ‘internal market’ were used in the first paragraph instead of ‘common market’. The third paragraph dropped the words ‘The provisions of’, but otherwise the provision was exactly the same as the future Article 101 TFEU (OJ 18.7.2003 C 169/35).
***
The location and wording of Article III-161 of the Treaty establishing a Constitution for Europe was the same as for the corresponding provision of the draft (OJ 16.12.2004 C 310/68–69).
The IGC 2007 did not bother to delete the words ‘The provisions of’ at the beginning of the third paragraph, but otherwise the Constitutional Treaty and Article 101 TFEU are identical.
***
We have seen that Article 101 TFEU is almost exactly the same as the current Article 81 TEC, the only difference being the systematic use of ‘internal market’ instead of the older expression ‘common market’.
But, this picture would be incomplete if we did not venture outside the wording of the Article.
First, according to Article 3(1)(b) TFEU the EU has exclusive competence in ‘the establishing of the competition rules necessary for the functioning of the internal market’.
Second, we mention the revised objectives of the European Union. According to the Lisbon Treaty version of Article 3(3) TEU:
“The Union shall establish an internal market.”
The current Article 3(1)(g) TEC ‘system ensuring that competition in the internal market is not distorted’ was deleted from the objectives of the European Union. Having satisfied the French demands to make competition not an objective, but a means, the governments of the member states agreed on a Protocol (No 27) on the internal market and competition (OJ 9.5.2008 C 115/309):
PROTOCOL (No 27)
ON THE INTERNAL MARKET AND COMPETITION
THE HIGH CONTRACTING PARTIES,
CONSIDERING that the internal market as set out in Article 3 of the Treaty on European Union includes a system ensuring that competition is not distorted,
HAVE AGREED that:
To this end, the Union shall, if necessary, take action under the provisions of the Treaties, including under Article 352 of the Treaty on the Functioning of the European Union.
This protocol shall be annexed to the Treaty on European Union and to the Treaty on the Functioning of the European Union.
***
In principle, the IGC 2007 followed the agreements of the IGC 2004, but Annex 1 of the IGC 2007 Mandate (Council document 11218/07), point 3 (page 11) contained the wording of Article 2 about the internal market without the words ‘where competition is free and undistorted’. The text of the draft protocol is on the same page.
The Council’s legal service gave the following opinion about the scope of Article 308 of the EC Treaty (the ‘flexibility clause’), dated 22 June 2007 (Council document 11198/07):
1) It results from the practice of the Institutions that, for the implementation of Article 308 of the EC Treaty ("flexibility clause"), the reference to "the objectives of the Community" has been interpreted widely by the Institutions, in order to cover all purposes and objectives coming within the general framework of the Treaty, and not only to cover those listed in Article 3. A recent example of this practice is the adoption of the Regulation establishing the Agency on Fundamental Rights(1). This corresponds to the case law of the Court of Justice(2): the Court of Justice has said that Article 235 of the EC Treaty (now Article 308) "cannot serve as a basis for widening the scope of Community powers beyond the general framework created by the provisions of the Treaty as a whole and, in particular, by those that define the tasks and the activities of the Community".
2) The fact that, in a future Treaty, Article 3 listing the objectives of the Union would not contain a specific reference to "a system ensuring that competition in the internal market is not distorted" would not, therefore, prevent the EU legislator to act in order:
− to "establish an internal market" (future Article 3, paragraph 3), and
− that the activities of the Union "shall include (…) the adoption of an economic policy which is based (…) on the internal market (…) and conducted in accordance with the principle of an open market economy with free competition" (future Article 4).
3) The future IGC may deem it appropriate, for reasons of transparency, to accompany the text of the future Treaty by a Declaration stating that "with regard to the establishment of the internal market as set out in article 3 TEU, the Conference confirms that the Union will, if necessary, take action under Article 308 to ensure that competition is not distorted".
4) The future IGC might also choose to add a Protocol to the future Treaty, in order to confirm the above. Such a Protocol would be in conformity with the Treaty but legally superfluous.
The footnotes:
(1) Regulation No 168/2007 of 15 February 2007, OJ L53, 22.2.2007, p. 1.
(2) See Opinion of the Court of Justice of 23 March 1996, Opinion 2/94 [1996] ECR, p. I-1759.
***
What has been said about Article 101 TFEU?
United Kingdom
Professor Steve Peers covered the Treaty of Lisbon in a number of Statewatch Analyses. ‘EU Reform Treaty Analysis no. 3.3: Revised text of Part Three, Titles I to VI of the Treaty establishing the European Community (TEC): Internal Market and competition’ (Version 2, 23 October 2007) includes the current Title VI Common rules on competition, taxation and approximation of laws.
Peers highlighted the amendment to Article 81 TEC and TFEU (ToL), to be renumbered Article 101 TFEU in the consolidated version, without comment (page 24).
The analysis 3.3 and other useful Statewatch analyses are available through:
http://www.statewatch.org/euconstitution.htm
***
The Foreign and Commonwealth Office (FCO) offers a convenient source of brief annotations on Lisbon Treaty amendments in ‘A comparative table of the current EC and EU treaties as amended by the Treaty of Lisbon’ (Command Paper 7311, published 21 January 2008). It offers the following comment on Article 101 TFEU, Article 81 TFEU (ToL) in the original Lisbon Treaty (page 11):
“Unchanged from Article 81 TEC.”
The FCO comparative table is available at:
http://www.official-documents.gov.uk/document/cm73/7311/7311.asp
***
The UK House of Commons Library Research Paper 07/86 ‘The Treaty of Lisbon: amendments to the Treaty establishing the European Community’ (published 6 December 2007) discussed competition on page 57 to 60, not without doubts being expressed with regard to the abolition of free and undistorted competition from among the EU’s objectives.
The Library Research Paper 07/86 is available at:
http://www.parliament.uk/commons/lib/research/rp2007/rp07-086.pdf
***
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 internal market and competition on pages 218 and 219.
The main discussion centred around concerns about the removal of ‘free and undistorted competition’ (according to Article I-3(2) of the Constitutional Treaty objectives), but the Committee’s conclusion was the following:
“9.18. We would be concerned if any possible symbolic downgrading were translated into efforts to depart from the principles of free competition that have formed the cornerstone of the internal market. However, Article 51 of the TEU gives equal weight to the Treaty Articles and Protocols and Articles 81–83 of the TEC will remain the same as Articles 101–103 of the TFEU. Therefore, the change does not appear to be significant.”
The report is accessible at:
http://www.publications.parliament.uk/pa/ld200708/ldselect/ldeucom/62/62.pdf
***
Sweden
The consultation paper of the government of Sweden, ‘Lissabonfördraget; Statsrådsberedningen, Departementsserien (Ds), Ds 2007:48’ published 20 December 2007, deals with the internal market on pages 261 to 269, ’22.1 Inre marknaden’. On page 264 the consultation paper describes the Protocol on the internal market and competition (Protokollet om den inre marknaden och konkurrens), and it refers to the opinion of the Council’s legal service (document 11198/07).
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), includes only a short comment on the unchanged nature of Article 81 TFEU (ToL), renumbered Article 101 TFEU (on page 207), but mentions competition among the EU objectives on page 19:
”Perustuslakisopimukseen verrattuna unionin tavoitteita koskevasta määräyksestä on poistettu viittaus siihen, että kilpailu unionin sisämarkkinoilla on vapaata ja vääristymätöntä. SEUT 2 b artiklassa sisämarkkinoiden toimintaa varten tarvittavien kilpailusääntöjen vahvistaminen määritellään kuitenkin jatkossakin unionin yksinomaiseen toimivaltaan kuuluvaksi. Tähän muutokseen liittyen sopimukseen on liitetty kilpailua ja sisämarkkinoita koskeva pöytäkirja, jossa sopimuspuolet katsovat, että SEU 2 artiklassa määritelty tavoite sisämarkkinoiden luomisesta käsittää järjestelmän, jolla taataan, ettei kilpailu vääristy. Sopimuspuolet sopivat, että unioni toteuttaa toimenpiteitä tämän tavoitteen toteuttamiseksi.”
More or less the same factual and non-committal remarks are made on page 132, when Article 2 TEU (ToL), renumbered Article 3 TEU, is dealt with.
The Finnish ratification 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 rd), offers the same brief observation about Article 81 TFEU (ToL), the future Article 101 TFEU, on page 209.
The remarks about the role of competition among the objectives of the EU is on page 19:
”Jämfört med det konstitutionella fördraget har omnämnandet av en inre marknad där det råder fri och icke snedvriden konkurrens strukits från bestämmelsen om unionens mål. Enligt artikel 3 i EUF-fördraget ska unionen dock även i fortsättningen ha exklusiv befogenhet när det gäller fastställandet av de konkurrensregler som är nödvändiga för den inre marknadens funktion. I anslutning till denna ändring åtföljs fördraget av ett protokoll om den inre marknaden och konkurrens där de fördragsslutande parterna beaktar att den inre marknaden enligt definitionen i artikel 2 i EU-fördraget innefattar en ordning som säkerställer att konkurrensen inte snedvrids.
De fördragsslutande parterna enas om att unionen ska vidta åtgärder för detta ändamål.”
The description on page 132 of the Finnish version is found on page 135 of the Swedish one.
The ratification bill in Swedish can be accessed at:
http://www.finlex.fi/sv/esitykset/he/2008/20080023.pdf
Ralf Grahn
Therefore, most of the discussion about EU competition law in the light of the Lisbon Treaty has centred upon the symbolic downgrading of competition, whereas the unchanged substantive provisions have generated sparse comment.
The first competition Article deals with anti-competitive agreements between firms.
***
We enter a new Title, Chapter and Section in order to look at competition rules in the EU Treaty of Lisbon.
Article 101 of the Treaty on the Functioning of the European Union (TFEU) is found in the consolidated version of the Treaty on European Union and the Treaty on the Functioning of the European Union, published in the Official Journal of the European Union, OJ 9.5.2008 C 115/88–89:
Part Three ‘Policies and internal actions of the Union’
Title VII Common rules on competition, taxation and approximation of laws
Chapter 1 Rules on competition
Section 1 Rules applying to undertakings
Article 101 TFEU
(ex Article 81 TEC)
1. The following shall be prohibited as incompatible with the internal market: all agreements between undertakings, decisions by associations of undertakings and concerted practices which may affect trade between Member States and which have as their object or effect the prevention, restriction or distortion of competition within the internal market, and in particular those which:
(a) directly or indirectly fix purchase or selling prices or any other trading conditions;
(b) limit or control production, markets, technical development, or investment;
(c) share markets or sources of supply;
(d) apply dissimilar conditions to equivalent transactions with other trading parties, thereby placing them at a competitive disadvantage;
(e) make the conclusion of contracts subject to acceptance by the other parties of supplementary obligations which, by their nature or according to commercial usage, have no connection with the subject of such contracts.
2. Any agreements or decisions prohibited pursuant to this Article shall be automatically void.
3. The provisions of paragraph 1 may, however, be declared inapplicable in the case of:
— any agreement or category of agreements between undertakings,
— any decision or category of decisions by associations of undertakings,
— any concerted practice or category of concerted practices,
which contributes to improving the production or distribution of goods or to promoting technical or economic progress, while allowing consumers a fair share of the resulting benefit, and which does not:
(a) impose on the undertakings concerned restrictions which are not indispensable to the attainment of these objectives;
(b) afford such undertakings the possibility of eliminating competition in respect of a substantial part of the products in question.
***
In Article 2, point 75 of the Treaty of Lisbon (ToL) the intergovernmental conference (IGC 2007) laid out the specific amendments to Article 80 TEC and in point 76 Article 85 TEC was amended. Thus, no specific amendments were made to Article 81 TEC (OJ 17.12.2007 C 306/68).
***
The TFEU table of equivalences tells us that Article 81 TEC first became Article 81 TFEU (ToL), but later renumbered Article 101 TFEU in the consolidated version (OJ 17.12.2007 C 306/211).
***
The current Article 81 of the Treaty establishing the European Community (TEC) is found under Title VI ‘Common rules on competition, taxation and approximation of laws’, Chapter 1 ‘Rules on competition’, Section 1 ‘Rules applying to undertakings’, in the latest consolidated version of the treaties in force (OJ 29.12.2006 C 321 E/73–74).
The only change made by Article 101 TFEU was to replace the words ‘common market’ by ‘internal market’ twice in the first paragraph, according to horizontal amendment 2(g). Cf. above and OJ 17.12.2007 C 306/41.
Therefore, Article 81 TEC is not reproduced here.
***
For the sake of a systematic comparison, we look at the Article during the previous treaty reform stages.
First, we turn to the European Convention, which located the provisions on competition in Part III ‘The policies and functioning of the Union’, Title III ‘Internal policies and action’, Chapter I ‘Internal market’, Section 5 ‘Rules on competition’, with Subsection 1 ‘Rules applying to undertakings’.
In Article III-50 of the draft Treaty establishing a Constitution for Europe the words ‘internal market’ were used in the first paragraph instead of ‘common market’. The third paragraph dropped the words ‘The provisions of’, but otherwise the provision was exactly the same as the future Article 101 TFEU (OJ 18.7.2003 C 169/35).
***
The location and wording of Article III-161 of the Treaty establishing a Constitution for Europe was the same as for the corresponding provision of the draft (OJ 16.12.2004 C 310/68–69).
The IGC 2007 did not bother to delete the words ‘The provisions of’ at the beginning of the third paragraph, but otherwise the Constitutional Treaty and Article 101 TFEU are identical.
***
We have seen that Article 101 TFEU is almost exactly the same as the current Article 81 TEC, the only difference being the systematic use of ‘internal market’ instead of the older expression ‘common market’.
But, this picture would be incomplete if we did not venture outside the wording of the Article.
First, according to Article 3(1)(b) TFEU the EU has exclusive competence in ‘the establishing of the competition rules necessary for the functioning of the internal market’.
Second, we mention the revised objectives of the European Union. According to the Lisbon Treaty version of Article 3(3) TEU:
“The Union shall establish an internal market.”
The current Article 3(1)(g) TEC ‘system ensuring that competition in the internal market is not distorted’ was deleted from the objectives of the European Union. Having satisfied the French demands to make competition not an objective, but a means, the governments of the member states agreed on a Protocol (No 27) on the internal market and competition (OJ 9.5.2008 C 115/309):
PROTOCOL (No 27)
ON THE INTERNAL MARKET AND COMPETITION
THE HIGH CONTRACTING PARTIES,
CONSIDERING that the internal market as set out in Article 3 of the Treaty on European Union includes a system ensuring that competition is not distorted,
HAVE AGREED that:
To this end, the Union shall, if necessary, take action under the provisions of the Treaties, including under Article 352 of the Treaty on the Functioning of the European Union.
This protocol shall be annexed to the Treaty on European Union and to the Treaty on the Functioning of the European Union.
***
In principle, the IGC 2007 followed the agreements of the IGC 2004, but Annex 1 of the IGC 2007 Mandate (Council document 11218/07), point 3 (page 11) contained the wording of Article 2 about the internal market without the words ‘where competition is free and undistorted’. The text of the draft protocol is on the same page.
The Council’s legal service gave the following opinion about the scope of Article 308 of the EC Treaty (the ‘flexibility clause’), dated 22 June 2007 (Council document 11198/07):
1) It results from the practice of the Institutions that, for the implementation of Article 308 of the EC Treaty ("flexibility clause"), the reference to "the objectives of the Community" has been interpreted widely by the Institutions, in order to cover all purposes and objectives coming within the general framework of the Treaty, and not only to cover those listed in Article 3. A recent example of this practice is the adoption of the Regulation establishing the Agency on Fundamental Rights(1). This corresponds to the case law of the Court of Justice(2): the Court of Justice has said that Article 235 of the EC Treaty (now Article 308) "cannot serve as a basis for widening the scope of Community powers beyond the general framework created by the provisions of the Treaty as a whole and, in particular, by those that define the tasks and the activities of the Community".
2) The fact that, in a future Treaty, Article 3 listing the objectives of the Union would not contain a specific reference to "a system ensuring that competition in the internal market is not distorted" would not, therefore, prevent the EU legislator to act in order:
− to "establish an internal market" (future Article 3, paragraph 3), and
− that the activities of the Union "shall include (…) the adoption of an economic policy which is based (…) on the internal market (…) and conducted in accordance with the principle of an open market economy with free competition" (future Article 4).
3) The future IGC may deem it appropriate, for reasons of transparency, to accompany the text of the future Treaty by a Declaration stating that "with regard to the establishment of the internal market as set out in article 3 TEU, the Conference confirms that the Union will, if necessary, take action under Article 308 to ensure that competition is not distorted".
4) The future IGC might also choose to add a Protocol to the future Treaty, in order to confirm the above. Such a Protocol would be in conformity with the Treaty but legally superfluous.
The footnotes:
(1) Regulation No 168/2007 of 15 February 2007, OJ L53, 22.2.2007, p. 1.
(2) See Opinion of the Court of Justice of 23 March 1996, Opinion 2/94 [1996] ECR, p. I-1759.
***
What has been said about Article 101 TFEU?
United Kingdom
Professor Steve Peers covered the Treaty of Lisbon in a number of Statewatch Analyses. ‘EU Reform Treaty Analysis no. 3.3: Revised text of Part Three, Titles I to VI of the Treaty establishing the European Community (TEC): Internal Market and competition’ (Version 2, 23 October 2007) includes the current Title VI Common rules on competition, taxation and approximation of laws.
Peers highlighted the amendment to Article 81 TEC and TFEU (ToL), to be renumbered Article 101 TFEU in the consolidated version, without comment (page 24).
The analysis 3.3 and other useful Statewatch analyses are available through:
http://www.statewatch.org/euconstitution.htm
***
The Foreign and Commonwealth Office (FCO) offers a convenient source of brief annotations on Lisbon Treaty amendments in ‘A comparative table of the current EC and EU treaties as amended by the Treaty of Lisbon’ (Command Paper 7311, published 21 January 2008). It offers the following comment on Article 101 TFEU, Article 81 TFEU (ToL) in the original Lisbon Treaty (page 11):
“Unchanged from Article 81 TEC.”
The FCO comparative table is available at:
http://www.official-documents.gov.uk/document/cm73/7311/7311.asp
***
The UK House of Commons Library Research Paper 07/86 ‘The Treaty of Lisbon: amendments to the Treaty establishing the European Community’ (published 6 December 2007) discussed competition on page 57 to 60, not without doubts being expressed with regard to the abolition of free and undistorted competition from among the EU’s objectives.
The Library Research Paper 07/86 is available at:
http://www.parliament.uk/commons/lib/research/rp2007/rp07-086.pdf
***
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 internal market and competition on pages 218 and 219.
The main discussion centred around concerns about the removal of ‘free and undistorted competition’ (according to Article I-3(2) of the Constitutional Treaty objectives), but the Committee’s conclusion was the following:
“9.18. We would be concerned if any possible symbolic downgrading were translated into efforts to depart from the principles of free competition that have formed the cornerstone of the internal market. However, Article 51 of the TEU gives equal weight to the Treaty Articles and Protocols and Articles 81–83 of the TEC will remain the same as Articles 101–103 of the TFEU. Therefore, the change does not appear to be significant.”
The report is accessible at:
http://www.publications.parliament.uk/pa/ld200708/ldselect/ldeucom/62/62.pdf
***
Sweden
The consultation paper of the government of Sweden, ‘Lissabonfördraget; Statsrådsberedningen, Departementsserien (Ds), Ds 2007:48’ published 20 December 2007, deals with the internal market on pages 261 to 269, ’22.1 Inre marknaden’. On page 264 the consultation paper describes the Protocol on the internal market and competition (Protokollet om den inre marknaden och konkurrens), and it refers to the opinion of the Council’s legal service (document 11198/07).
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), includes only a short comment on the unchanged nature of Article 81 TFEU (ToL), renumbered Article 101 TFEU (on page 207), but mentions competition among the EU objectives on page 19:
”Perustuslakisopimukseen verrattuna unionin tavoitteita koskevasta määräyksestä on poistettu viittaus siihen, että kilpailu unionin sisämarkkinoilla on vapaata ja vääristymätöntä. SEUT 2 b artiklassa sisämarkkinoiden toimintaa varten tarvittavien kilpailusääntöjen vahvistaminen määritellään kuitenkin jatkossakin unionin yksinomaiseen toimivaltaan kuuluvaksi. Tähän muutokseen liittyen sopimukseen on liitetty kilpailua ja sisämarkkinoita koskeva pöytäkirja, jossa sopimuspuolet katsovat, että SEU 2 artiklassa määritelty tavoite sisämarkkinoiden luomisesta käsittää järjestelmän, jolla taataan, ettei kilpailu vääristy. Sopimuspuolet sopivat, että unioni toteuttaa toimenpiteitä tämän tavoitteen toteuttamiseksi.”
More or less the same factual and non-committal remarks are made on page 132, when Article 2 TEU (ToL), renumbered Article 3 TEU, is dealt with.
The Finnish ratification 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 rd), offers the same brief observation about Article 81 TFEU (ToL), the future Article 101 TFEU, on page 209.
The remarks about the role of competition among the objectives of the EU is on page 19:
”Jämfört med det konstitutionella fördraget har omnämnandet av en inre marknad där det råder fri och icke snedvriden konkurrens strukits från bestämmelsen om unionens mål. Enligt artikel 3 i EUF-fördraget ska unionen dock även i fortsättningen ha exklusiv befogenhet när det gäller fastställandet av de konkurrensregler som är nödvändiga för den inre marknadens funktion. I anslutning till denna ändring åtföljs fördraget av ett protokoll om den inre marknaden och konkurrens där de fördragsslutande parterna beaktar att den inre marknaden enligt definitionen i artikel 2 i EU-fördraget innefattar en ordning som säkerställer att konkurrensen inte snedvrids.
De fördragsslutande parterna enas om att unionen ska vidta åtgärder för detta ändamål.”
The description on page 132 of the Finnish version is found on page 135 of the Swedish one.
The ratification bill in Swedish can be accessed at:
http://www.finlex.fi/sv/esitykset/he/2008/20080023.pdf
Ralf Grahn
Sunday, 25 May 2008
EU TFEU: Land, sea and air transport
The EU Treaty of Lisbon continues to make a distinction between rail, road and inland waterway, to which the TFEU Transport Title applies, and sea and air transport, still treated as optional with regard to EU legislation.
***
Article 100 of the Treaty on the Functioning of the European Union (TFEU) is found in the consolidated version of the Treaty on European Union and the Treaty on the Functioning of the European Union, published in the Official Journal of the European Union, OJ 9.5.2008 C 115/87–88:
Part Three ‘Policies and internal actions of the Union’
Title VI TFEU ‘Transport’
Article 100 TFEU
(ex Article 80 TEC)
1. The provisions of this Title shall apply to transport by rail, road and inland waterway.
2. The European Parliament and the Council, acting in accordance with the ordinary legislative procedure, may lay down appropriate provisions for sea and air transport. They shall act after consulting the Economic and Social Committee and the Committee of the Regions.
***
In Article 2, point 75 of the Treaty of Lisbon (ToL) the intergovernmental conference (IGC 2007) laid out the specific amendments to Article 80 TEC (OJ 17.12.2007 C 306/68).
75) In Article 80, paragraph 2 shall be replaced by the following:
‘2. The European Parliament and the Council, acting in accordance with the ordinary legislative procedure, may lay down appropriate provisions for sea and air transport. They shall act after consulting the Economic and Social Committee and the Committee of the Regions.’.
***
The TFEU table of equivalences tells us that Article 80 TEC first became Article 80 TFEU (ToL), but later renumbered Article 100 TFEU in the consolidated version (OJ 17.12.2007 C 306/210).
***
The current Article 80 of the Treaty establishing the European Community (TEC) is found under Title V ‘Transport’ in the latest consolidated version of the treaties in force (OJ 29.12.2006 C 321 E/73):
Article 80 TEC
1. The provisions of this title shall apply to transport by rail, road and inland waterway.
2. The Council may, acting by a qualified majority, decide whether, to what extent and by what procedure appropriate provisions may be laid down for sea and air transport.
The procedural provisions of Article 71 shall apply.
***
For the sake of a systematic comparison, we look at the Article during the previous treaty reform stages.
First, we turn to the European Convention.
Article III-143 of the draft Treaty establishing a Constitution for Europe looked like this (OJ 18.7.2003 C 169/55):
Article III-143 Draft Constitution
1. This Section shall apply to transport by rail, road and inland waterway.
2. European laws or framework laws may lay down appropriate measures for sea and air transport. They shall be adopted after consultation of the Committee of the Regions and the Economic and Social Committee.
***
Article III-245 of the Treaty establishing a Constitution for Europe adopted the wording of the European Convention without change (OJ 16.12.2004 C 310/108).
***
What has been said about Article 100 TFEU?
United Kingdom
Professor Steve Peers covered the Treaty of Lisbon in a number of Statewatch Analyses. ‘EU Reform Treaty Analysis no. 3.3: Revised text of Part Three, Titles I to VI of the Treaty establishing the European Community (TEC): Internal Market and competition’ (Version 2, 23 October 2007) includes the current Title V Transport.
Peers highlighted the amendment to Article 80 TEC and TFEU (ToL), to be renumbered Article 100 TFEU in the consolidated version, and he added the following comment (page 23):
“In practice, legislation on sea and air transport is already adopted by the co-decisions procedure.”
The analysis 3.3 and other useful Statewatch analyses are available through:
http://www.statewatch.org/euconstitution.htm
***
The Foreign and Commonwealth Office (FCO) offers a convenient source of brief annotations on Lisbon Treaty amendments in ‘A comparative table of the current EC and EU treaties as amended by the Treaty of Lisbon’ (Command Paper 7311, published 21 January 2008). It offers the following comment on Article 100 TFEU, Article 80 TFEU (ToL) in the original Lisbon Treaty (page 11):
“Draws and Article 80 TEC. QMV already applies, co-decision applied to paragraph 2.”
The FCO comparative table is available at:
http://www.official-documents.gov.uk/document/cm73/7311/7311.asp
***
The UK House of Commons Library Research Paper 07/86 ‘The Treaty of Lisbon: amendments to the Treaty establishing the European Community’ (published 6 December 2007) wrapped up Transport in a brief comment on page 56:
“F. Transport
Title V, Articles 70-80 (Constitution Articles III-236 – 245) are on transport and are based largely on Articles 70 – 75 TEC, but with a change in the voting procedure to the OLP with QMV, except for Article 72, which replaces unanimity in the Constitution Article III-237 with a “special legislative procedure”. Other, minor, changes are Article 75(c), which adds the EP to those bodies to be consulted, and Article 78 (Constitution Article III-243), allowing the Article concerning German unification to be repealed after 5 years.
Present Articles 154 – 156 on Trans-European Networks (TENS) have been moved to Title VII and contain only minor amendments.”
The Library Research Paper 07/86 is available at:
http://www.parliament.uk/commons/lib/research/rp2007/rp07-086.pdf
***
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) made no explicit reference to Article 100 TFEU.
The report is accessible at:
http://www.publications.parliament.uk/pa/ld200708/ldselect/ldeucom/62/62.pdf
***
Sweden
The consultation paper of the government of Sweden, ‘Lissabonfördraget; Statsrådsberedningen, Departementsserien (Ds), Ds 2007:48’ published 20 December 2007, bundled together transport and trans-European networks under the headline ‘Transporter och transeuropeiska nät’ (page 280 to 282).
The text offers an overview of the coming Title VI ‘Transport’, and it remarks that in practice provisions on air and sea transport are already adopted by co-decision:
”Åtgärder på sjöfarts- respektive luftfartsområdena ska antas i enlighet med det ordinarie lagstiftningsförfarandet (artikel 80.2 i EUF-fördraget). I praktiken antas lagstiftning på områdena redan idag gemensamt av Europaparlamentet och rådet med kvalificerad majoritet.”
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), includes a systematic commentary on the treaty provisions. The explanation on Article 80 TFEU (ToL), renumbered Article 100 TFEU, is one example of this methodical approach (page 206):
”80 artiklan (uusi 100 artikla) 2 kohtaa, joka koskee meri- ja lentoliikenteestä annettavaa säännöstöä, muutetaan siten, että parlamentti ja neuvosto antavat tavallista lainsäätämisjärjestystä noudattaen meri- ja lentoliikennettä koskevat aiheelliset säännökset alueiden komiteaa sekä talous- ja sosiaalikomiteaa kuultuaan. Nykyisen SEY 80 artiklan 2 kohdassa määrätään neuvoston voivan määräenemmistöllä päättää, annetaanko meri- ja lentoliikennettä koskevia aiheellisia säännöksiä sekä missä laajuudessa ja mitä menettelyä noudattaen niitä annetaan, ja että tällöin sovelletaan SEY 71 artiklan määräyksiä menettelystä. SEY 71 artiklassa tarkoitettu menettely vastaa SEUT 80 artiklan 2 kohtaan nyt kirjattavaa menettelyä. SEUT 80 artikla vastaa perustuslakisopimuksen III-245 artiklaa säädösinstrumentin yksilöintiä eurooppalaiksi tai -puitelaiksi lukuun ottamatta.”
The Finnish ratification 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 rd), offers the same observations on page 209:
”Artikel 80.2 (blivande artikel 100), som gäller bestämmelser för sjöfart och luftfart ändras så att parlamentet och rådet i enlighet med det ordinarie lagstiftningsförfarandet får fastställa lämpliga bestämmelser för sjöfart och luftfart efter att ha hört Ekonomiska och sociala kommittén och Regionkommittén. I nuvarande artikel 80.2 i EG-fördraget bestäms att rådet får med kvalificerad majoritet besluta huruvida, i vilken omfattning och på vilket sätt lämpliga bestämmelser ska kunna meddelas för sjöfart och luftfart och att procedurreglerna i artikel 71 ska tillämpas. Det förfarande som avses i artikel 71 i EGfördraget motsvarar det förfarande som nu skrivs in i artikel 80.2 i EUF-fördraget. Artikel 80 i EUF-fördraget motsvarar artikel III- 245 i det konstitutionella fördraget med undantag för att rättsaktsinstrumentet individualiseras som europalag eller ramlag.”
The ratification bill in Swedish can be accessed at:
http://www.finlex.fi/sv/esitykset/he/2008/20080023.pdf
***
The Treaty of Lisbon retains traces of the historical dichotomy between transport in the internal market (by rail, road and inland waterway; first paragraph) and sea and air transport, at least initially more concerned with relations to third countries (second paragraph).
Ralf Grahn
***
Article 100 of the Treaty on the Functioning of the European Union (TFEU) is found in the consolidated version of the Treaty on European Union and the Treaty on the Functioning of the European Union, published in the Official Journal of the European Union, OJ 9.5.2008 C 115/87–88:
Part Three ‘Policies and internal actions of the Union’
Title VI TFEU ‘Transport’
Article 100 TFEU
(ex Article 80 TEC)
1. The provisions of this Title shall apply to transport by rail, road and inland waterway.
2. The European Parliament and the Council, acting in accordance with the ordinary legislative procedure, may lay down appropriate provisions for sea and air transport. They shall act after consulting the Economic and Social Committee and the Committee of the Regions.
***
In Article 2, point 75 of the Treaty of Lisbon (ToL) the intergovernmental conference (IGC 2007) laid out the specific amendments to Article 80 TEC (OJ 17.12.2007 C 306/68).
75) In Article 80, paragraph 2 shall be replaced by the following:
‘2. The European Parliament and the Council, acting in accordance with the ordinary legislative procedure, may lay down appropriate provisions for sea and air transport. They shall act after consulting the Economic and Social Committee and the Committee of the Regions.’.
***
The TFEU table of equivalences tells us that Article 80 TEC first became Article 80 TFEU (ToL), but later renumbered Article 100 TFEU in the consolidated version (OJ 17.12.2007 C 306/210).
***
The current Article 80 of the Treaty establishing the European Community (TEC) is found under Title V ‘Transport’ in the latest consolidated version of the treaties in force (OJ 29.12.2006 C 321 E/73):
Article 80 TEC
1. The provisions of this title shall apply to transport by rail, road and inland waterway.
2. The Council may, acting by a qualified majority, decide whether, to what extent and by what procedure appropriate provisions may be laid down for sea and air transport.
The procedural provisions of Article 71 shall apply.
***
For the sake of a systematic comparison, we look at the Article during the previous treaty reform stages.
First, we turn to the European Convention.
Article III-143 of the draft Treaty establishing a Constitution for Europe looked like this (OJ 18.7.2003 C 169/55):
Article III-143 Draft Constitution
1. This Section shall apply to transport by rail, road and inland waterway.
2. European laws or framework laws may lay down appropriate measures for sea and air transport. They shall be adopted after consultation of the Committee of the Regions and the Economic and Social Committee.
***
Article III-245 of the Treaty establishing a Constitution for Europe adopted the wording of the European Convention without change (OJ 16.12.2004 C 310/108).
***
What has been said about Article 100 TFEU?
United Kingdom
Professor Steve Peers covered the Treaty of Lisbon in a number of Statewatch Analyses. ‘EU Reform Treaty Analysis no. 3.3: Revised text of Part Three, Titles I to VI of the Treaty establishing the European Community (TEC): Internal Market and competition’ (Version 2, 23 October 2007) includes the current Title V Transport.
Peers highlighted the amendment to Article 80 TEC and TFEU (ToL), to be renumbered Article 100 TFEU in the consolidated version, and he added the following comment (page 23):
“In practice, legislation on sea and air transport is already adopted by the co-decisions procedure.”
The analysis 3.3 and other useful Statewatch analyses are available through:
http://www.statewatch.org/euconstitution.htm
***
The Foreign and Commonwealth Office (FCO) offers a convenient source of brief annotations on Lisbon Treaty amendments in ‘A comparative table of the current EC and EU treaties as amended by the Treaty of Lisbon’ (Command Paper 7311, published 21 January 2008). It offers the following comment on Article 100 TFEU, Article 80 TFEU (ToL) in the original Lisbon Treaty (page 11):
“Draws and Article 80 TEC. QMV already applies, co-decision applied to paragraph 2.”
The FCO comparative table is available at:
http://www.official-documents.gov.uk/document/cm73/7311/7311.asp
***
The UK House of Commons Library Research Paper 07/86 ‘The Treaty of Lisbon: amendments to the Treaty establishing the European Community’ (published 6 December 2007) wrapped up Transport in a brief comment on page 56:
“F. Transport
Title V, Articles 70-80 (Constitution Articles III-236 – 245) are on transport and are based largely on Articles 70 – 75 TEC, but with a change in the voting procedure to the OLP with QMV, except for Article 72, which replaces unanimity in the Constitution Article III-237 with a “special legislative procedure”. Other, minor, changes are Article 75(c), which adds the EP to those bodies to be consulted, and Article 78 (Constitution Article III-243), allowing the Article concerning German unification to be repealed after 5 years.
Present Articles 154 – 156 on Trans-European Networks (TENS) have been moved to Title VII and contain only minor amendments.”
The Library Research Paper 07/86 is available at:
http://www.parliament.uk/commons/lib/research/rp2007/rp07-086.pdf
***
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) made no explicit reference to Article 100 TFEU.
The report is accessible at:
http://www.publications.parliament.uk/pa/ld200708/ldselect/ldeucom/62/62.pdf
***
Sweden
The consultation paper of the government of Sweden, ‘Lissabonfördraget; Statsrådsberedningen, Departementsserien (Ds), Ds 2007:48’ published 20 December 2007, bundled together transport and trans-European networks under the headline ‘Transporter och transeuropeiska nät’ (page 280 to 282).
The text offers an overview of the coming Title VI ‘Transport’, and it remarks that in practice provisions on air and sea transport are already adopted by co-decision:
”Åtgärder på sjöfarts- respektive luftfartsområdena ska antas i enlighet med det ordinarie lagstiftningsförfarandet (artikel 80.2 i EUF-fördraget). I praktiken antas lagstiftning på områdena redan idag gemensamt av Europaparlamentet och rådet med kvalificerad majoritet.”
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), includes a systematic commentary on the treaty provisions. The explanation on Article 80 TFEU (ToL), renumbered Article 100 TFEU, is one example of this methodical approach (page 206):
”80 artiklan (uusi 100 artikla) 2 kohtaa, joka koskee meri- ja lentoliikenteestä annettavaa säännöstöä, muutetaan siten, että parlamentti ja neuvosto antavat tavallista lainsäätämisjärjestystä noudattaen meri- ja lentoliikennettä koskevat aiheelliset säännökset alueiden komiteaa sekä talous- ja sosiaalikomiteaa kuultuaan. Nykyisen SEY 80 artiklan 2 kohdassa määrätään neuvoston voivan määräenemmistöllä päättää, annetaanko meri- ja lentoliikennettä koskevia aiheellisia säännöksiä sekä missä laajuudessa ja mitä menettelyä noudattaen niitä annetaan, ja että tällöin sovelletaan SEY 71 artiklan määräyksiä menettelystä. SEY 71 artiklassa tarkoitettu menettely vastaa SEUT 80 artiklan 2 kohtaan nyt kirjattavaa menettelyä. SEUT 80 artikla vastaa perustuslakisopimuksen III-245 artiklaa säädösinstrumentin yksilöintiä eurooppalaiksi tai -puitelaiksi lukuun ottamatta.”
The Finnish ratification 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 rd), offers the same observations on page 209:
”Artikel 80.2 (blivande artikel 100), som gäller bestämmelser för sjöfart och luftfart ändras så att parlamentet och rådet i enlighet med det ordinarie lagstiftningsförfarandet får fastställa lämpliga bestämmelser för sjöfart och luftfart efter att ha hört Ekonomiska och sociala kommittén och Regionkommittén. I nuvarande artikel 80.2 i EG-fördraget bestäms att rådet får med kvalificerad majoritet besluta huruvida, i vilken omfattning och på vilket sätt lämpliga bestämmelser ska kunna meddelas för sjöfart och luftfart och att procedurreglerna i artikel 71 ska tillämpas. Det förfarande som avses i artikel 71 i EGfördraget motsvarar det förfarande som nu skrivs in i artikel 80.2 i EUF-fördraget. Artikel 80 i EUF-fördraget motsvarar artikel III- 245 i det konstitutionella fördraget med undantag för att rättsaktsinstrumentet individualiseras som europalag eller ramlag.”
The ratification bill in Swedish can be accessed at:
http://www.finlex.fi/sv/esitykset/he/2008/20080023.pdf
***
The Treaty of Lisbon retains traces of the historical dichotomy between transport in the internal market (by rail, road and inland waterway; first paragraph) and sea and air transport, at least initially more concerned with relations to third countries (second paragraph).
Ralf Grahn
Saturday, 24 May 2008
EU TFEU: Transport advisory committee
The EU Treaty of Lisbon retains the advisory committee of national experts on transport matters.
***
Article 99 of the Treaty on the Functioning of the European Union (TFEU) is found in the consolidated version of the Treaty on European Union and the Treaty on the Functioning of the European Union, published in the Official Journal of the European Union, OJ 9.5.2008 C 115/87:
Part Three ‘Policies and internal actions of the Union’
Title VI TFEU ‘Transport’
Article 99 TFEU
(ex Article 79 TEC)
An Advisory Committee consisting of experts designated by the governments of Member States shall be attached to the Commission. The Commission, whenever it considers it desirable, shall consult the Committee on transport matters.
***
In Article 2, point 74 of the Treaty of Lisbon (ToL) the intergovernmental conference (IGC 2007) laid out the specific amendments to Article 79 TEC (OJ 17.12.2007 C 306/68).
74) In Article 79, the phrase ‘without prejudice to the powers of the Economic and Social Committee’ shall be deleted.
***
The TFEU table of equivalences tells us that Article 79 TEC first became Article 79 TFEU (ToL), but later renumbered Article 99 TFEU in the consolidated version (OJ 17.12.2007 C 306/210).
***
The current Article 79 of the Treaty establishing the European Community (TEC) is found under Title V ‘Transport’ in the latest consolidated version of the treaties in force (OJ 29.12.2006 C 321 E/73):
Article 79 TEC
An Advisory Committee consisting of experts designated by the governments of Member States shall be attached to the Commission. The Commission, whenever it considers it desirable, shall consult the Committee on transport matters without prejudice to the powers of the Economic and Social Committee.
***
For the sake of a systematic comparison, we look at the Article during the previous treaty reform stages.
First, we turn to the European Convention.
Article III-142 of the draft Treaty establishing a Constitution for Europe looked like this (OJ 18.7.2003 C 169/55):
Article III-142 Draft Constitution
An Advisory Committee consisting of experts designated by the governments of Member States shall be attached to the Commission. The Commission, whenever it considers it desirable, shall consult the Committee on transport matters.
***
Article III-244 of the Treaty establishing a Constitution for Europe adopted the wording of the European Convention without change (OJ 16.12.2004 C 310/107).
***
We see that the Lisbon Treaty amendment was part of the draft Constitution.
***
What have others said about Article 99 TFEU?
United Kingdom
Professor Steve Peers covered the Treaty of Lisbon in a number of Statewatch Analyses. ‘EU Reform Treaty Analysis no. 3.3: Revised text of Part Three, Titles I to VI of the Treaty establishing the European Community (TEC): Internal Market and competition’ (Version 2, 23 October 2007) includes the current Title V Transport.
Peers highlighted the amendment of Article 79 TEC and TFEU (ToL), to be renumbered Article 99 TFEU in the consolidated version, but made no comment (page 23).
The analysis 3.3 and other useful Statewatch analyses are available through:
http://www.statewatch.org/euconstitution.htm
***
The Foreign and Commonwealth Office (FCO) offers a convenient source of brief annotations on Lisbon Treaty amendments in ‘A comparative table of the current EC and EU treaties as amended by the Treaty of Lisbon’ (Command Paper 7311, published 21 January 2008). It offers the following comment on Article 99 TFEU, Article 79 TFEU (ToL) in the original Lisbon Treaty (page 11):
“In substance the same as Article 79 TEC.”
The FCO comparative table is available at:
http://www.official-documents.gov.uk/document/cm73/7311/7311.asp
***
The UK House of Commons Library Research Paper 07/86 ‘The Treaty of Lisbon: amendments to the Treaty establishing the European Community’ (published 6 December 2007) wrapped up Transport in a brief comment on page 56:
“F. Transport
Title V, Articles 70-80 (Constitution Articles III-236 – 245) are on transport and are based largely on Articles 70 – 75 TEC, but with a change in the voting procedure to the OLP with QMV, except for Article 72, which replaces unanimity in the Constitution Article III-237 with a “special legislative procedure”. Other, minor, changes are Article 75(c), which adds the EP to those bodies to be consulted, and Article 78 (Constitution Article III-243), allowing the Article concerning German unification to be repealed after 5 years.
Present Articles 154 – 156 on Trans-European Networks (TENS) have been moved to Title VII and contain only minor amendments.”
The Library Research Paper 07/86 is available at:
http://www.parliament.uk/commons/lib/research/rp2007/rp07-086.pdf
***
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) made no explicit reference to Article 99 TFEU.
The report is accessible at:
http://www.publications.parliament.uk/pa/ld200708/ldselect/ldeucom/62/62.pdf
***
Sweden
The consultation paper of the government of Sweden, ‘Lissabonfördraget; Statsrådsberedningen, Departementsserien (Ds), Ds 2007:48’ published 20 December 2007, bundled together transport and trans-European networks under the headline ‘Transporter och transeuropeiska nät’ (page 280 to 282).
The text offers an overview of the coming Title VI ‘Transport’, but it makes no reference to Article 79 TEC and TFEU (ToL).
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), mentions the words deleted from Article 79 TFEU (ToL), renumbered Article 99 TFEU, and adds the observation that the contents are the same as in ArticleIII-244 of the Constitutional Treaty (page 206).
The Finnish ratification 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 rd), offers the same observations on page 209.
The ratification bill in Swedish can be accessed at:
http://www.finlex.fi/sv/esitykset/he/2008/20080023.pdf
Ralf Grahn
***
Article 99 of the Treaty on the Functioning of the European Union (TFEU) is found in the consolidated version of the Treaty on European Union and the Treaty on the Functioning of the European Union, published in the Official Journal of the European Union, OJ 9.5.2008 C 115/87:
Part Three ‘Policies and internal actions of the Union’
Title VI TFEU ‘Transport’
Article 99 TFEU
(ex Article 79 TEC)
An Advisory Committee consisting of experts designated by the governments of Member States shall be attached to the Commission. The Commission, whenever it considers it desirable, shall consult the Committee on transport matters.
***
In Article 2, point 74 of the Treaty of Lisbon (ToL) the intergovernmental conference (IGC 2007) laid out the specific amendments to Article 79 TEC (OJ 17.12.2007 C 306/68).
74) In Article 79, the phrase ‘without prejudice to the powers of the Economic and Social Committee’ shall be deleted.
***
The TFEU table of equivalences tells us that Article 79 TEC first became Article 79 TFEU (ToL), but later renumbered Article 99 TFEU in the consolidated version (OJ 17.12.2007 C 306/210).
***
The current Article 79 of the Treaty establishing the European Community (TEC) is found under Title V ‘Transport’ in the latest consolidated version of the treaties in force (OJ 29.12.2006 C 321 E/73):
Article 79 TEC
An Advisory Committee consisting of experts designated by the governments of Member States shall be attached to the Commission. The Commission, whenever it considers it desirable, shall consult the Committee on transport matters without prejudice to the powers of the Economic and Social Committee.
***
For the sake of a systematic comparison, we look at the Article during the previous treaty reform stages.
First, we turn to the European Convention.
Article III-142 of the draft Treaty establishing a Constitution for Europe looked like this (OJ 18.7.2003 C 169/55):
Article III-142 Draft Constitution
An Advisory Committee consisting of experts designated by the governments of Member States shall be attached to the Commission. The Commission, whenever it considers it desirable, shall consult the Committee on transport matters.
***
Article III-244 of the Treaty establishing a Constitution for Europe adopted the wording of the European Convention without change (OJ 16.12.2004 C 310/107).
***
We see that the Lisbon Treaty amendment was part of the draft Constitution.
***
What have others said about Article 99 TFEU?
United Kingdom
Professor Steve Peers covered the Treaty of Lisbon in a number of Statewatch Analyses. ‘EU Reform Treaty Analysis no. 3.3: Revised text of Part Three, Titles I to VI of the Treaty establishing the European Community (TEC): Internal Market and competition’ (Version 2, 23 October 2007) includes the current Title V Transport.
Peers highlighted the amendment of Article 79 TEC and TFEU (ToL), to be renumbered Article 99 TFEU in the consolidated version, but made no comment (page 23).
The analysis 3.3 and other useful Statewatch analyses are available through:
http://www.statewatch.org/euconstitution.htm
***
The Foreign and Commonwealth Office (FCO) offers a convenient source of brief annotations on Lisbon Treaty amendments in ‘A comparative table of the current EC and EU treaties as amended by the Treaty of Lisbon’ (Command Paper 7311, published 21 January 2008). It offers the following comment on Article 99 TFEU, Article 79 TFEU (ToL) in the original Lisbon Treaty (page 11):
“In substance the same as Article 79 TEC.”
The FCO comparative table is available at:
http://www.official-documents.gov.uk/document/cm73/7311/7311.asp
***
The UK House of Commons Library Research Paper 07/86 ‘The Treaty of Lisbon: amendments to the Treaty establishing the European Community’ (published 6 December 2007) wrapped up Transport in a brief comment on page 56:
“F. Transport
Title V, Articles 70-80 (Constitution Articles III-236 – 245) are on transport and are based largely on Articles 70 – 75 TEC, but with a change in the voting procedure to the OLP with QMV, except for Article 72, which replaces unanimity in the Constitution Article III-237 with a “special legislative procedure”. Other, minor, changes are Article 75(c), which adds the EP to those bodies to be consulted, and Article 78 (Constitution Article III-243), allowing the Article concerning German unification to be repealed after 5 years.
Present Articles 154 – 156 on Trans-European Networks (TENS) have been moved to Title VII and contain only minor amendments.”
The Library Research Paper 07/86 is available at:
http://www.parliament.uk/commons/lib/research/rp2007/rp07-086.pdf
***
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) made no explicit reference to Article 99 TFEU.
The report is accessible at:
http://www.publications.parliament.uk/pa/ld200708/ldselect/ldeucom/62/62.pdf
***
Sweden
The consultation paper of the government of Sweden, ‘Lissabonfördraget; Statsrådsberedningen, Departementsserien (Ds), Ds 2007:48’ published 20 December 2007, bundled together transport and trans-European networks under the headline ‘Transporter och transeuropeiska nät’ (page 280 to 282).
The text offers an overview of the coming Title VI ‘Transport’, but it makes no reference to Article 79 TEC and TFEU (ToL).
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), mentions the words deleted from Article 79 TFEU (ToL), renumbered Article 99 TFEU, and adds the observation that the contents are the same as in ArticleIII-244 of the Constitutional Treaty (page 206).
The Finnish ratification 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 rd), offers the same observations on page 209.
The ratification bill in Swedish can be accessed at:
http://www.finlex.fi/sv/esitykset/he/2008/20080023.pdf
Ralf Grahn
Friday, 23 May 2008
EU TFEU: Transport and Germany
Here is a question for sadistic quizmasters: Can the Council amend the EU Treaty of Lisbon without later ratification by national parliaments?
The answer is ‘yes’ in at least one, highly atypical situation. Article 98 of the Treaty on the Functioning of the European Union offers the Council the possibility to repeal a privilege enjoyed by Germany as a legacy of the division of that country.
***
Article 98 of the Treaty on the Functioning of the European Union (TFEU) is found in the consolidated version of the Treaty on European Union and the Treaty on the Functioning of the European Union, published in the Official Journal of the European Union, OJ 9.5.2008 C 115/87:
Part Three ‘Policies and internal actions of the Union’
Title VI TFEU ‘Transport’
Article 98 TFEU
(ex Article 78 TEC)
The provisions of this Title shall not form an obstacle to the application of measures taken in the Federal Republic of Germany to the extent that such measures are required in order to compensate for the economic disadvantages caused by the division of Germany to the economy of certain areas of the Federal Republic affected by that division. Five years after the entry into force of the Treaty of Lisbon, the Council, acting on a proposal from the Commission, may adopt a decision repealing this Article.
***
In Article 2, point 73 of the Treaty of Lisbon (ToL) the intergovernmental conference (IGC 2007) laid out the specific amendments to Article 78 TEC (OJ 17.12.2007 C 306/68).
73) In Article 78, the following sentence shall be added:
‘Five years after the entry into force of the Treaty of Lisbon, the Council, acting on a proposal
from the Commission, may adopt a decision repealing this Article.’.
***
The TFEU table of equivalences tells us that Article 78 TEC first became Article 78 TFEU (ToL), but later renumbered Article 98 TFEU in the consolidated version (OJ 17.12.2007 C 306/210).
***
The current Article 78 of the Treaty establishing the European Community (TEC) is found under Title V ‘Transport’ in the latest consolidated version of the treaties in force (OJ 29.12.2006 C 321 E/73):
Article 78 TEC
The provisions of this title shall not form an obstacle to the application of measures taken in the Federal Republic of Germany to the extent that such measures are required in order to compensate for the economic disadvantages caused by the division of Germany to the economy of certain areas of the Federal Republic affected by that division.
***
For the sake of a systematic comparison, we look at the Article during the previous treaty reform stages.
First, we turn to the European Convention.
Article III-141 of the draft Treaty establishing a Constitution for Europe used the word ‘Section’ where the current Article 77 TEC says ‘title’, but otherwise the text was unchanged (OJ 18.7.2003 C 169/55).
***
Article III-243 of the Treaty establishing a Constitution for Europe added a sentence to the text of the European Convention (OJ 16.12.2004 C 310/107):
Article III-243 Constitution
The provisions of this Section shall not form an obstacle to the application of measures taken in the Federal Republic of Germany to the extent that such measures are required in order to compensate for the economic disadvantages caused by the division of Germany to the economy of certain areas of the Federal Republic affected by that division. Five years after the entry into force of the Treaty establishing a Constitution for Europe, the Council, acting on a proposal from the Commission, may adopt a European decision repealing this Article.
***
We can see that the IGC 2004 agreed on the possibility to repeal the provision on derogations on the basis of the division of Germany. This was taken over by the IGC 2007 as part of the 2004 package, if nothing in the IGC 2007 Mandate said anything to the contrary.
Naturally, the effects of the division of Germany are not over yet, almost two decades after German unification.
Sozialpolitik aktuell in Deutschland, Universität Duisburg, Essen, Institut für Soziologie, offers web pages with social indicators in Germany. In 2007 the unemployment rate in the old ‚Bundesländer’ was 8.4 per cent, but twice as high (16.8 per dent) in the new states. See Arbeitslosenquoten in neuen und alten Bundesländern 1975 – 2007:
http://www.sozialpolitik-aktuell.de/datensammlung/4/ab/abbIV35.pdf
On the other hand, increasingly a special rule for the rich Federal Republic of Germany is an anomaly in a European Union with ten poorer former Communist member states, without a richer big brother to help them out.
In principle, of anecdotal value only, one of the consequences of the stalled ratification process of the Constitutional Treaty was that this German special arrangement got an extra two year lease of life (if the Lisbon Treaty enters into force according to plan).
***
What have others said about Article 98 TFEU?
United Kingdom
Professor Steve Peers covered the Treaty of Lisbon in a number of Statewatch Analyses. ‘EU Reform Treaty Analysis no. 3.3: Revised text of Part Three, Titles I to VI of the Treaty establishing the European Community (TEC): Internal Market and competition’ (Version 2, 23 October 2007) includes the current Title V Transport.
Peers commented on the last sentence of Article 78 TEC and TFEU (ToL), to be renumbered Article 98 TFEU in the consolidated version, in the following way (page 23):
“The amendment is entirely new. It permits this Treaty Article to be amended (repealed) by QMV.”
The analysis 3.3 and other useful Statewatch analyses are available through:
http://www.statewatch.org/euconstitution.htm
***
The Foreign and Commonwealth Office (FCO) offers a convenient source of brief annotations on Lisbon Treaty amendments in ‘A comparative table of the current EC and EU treaties as amended by the Treaty of Lisbon’ (Command Paper 7311, published 21 January 2008). It offers the following comment on Article 98 TFEU, Article 78 TFEU (ToL) in the original Lisbon Treaty (page 11):
“In substance the same as Article 78 TEC, with a new power for the Council, by QMV, to repeal this provision.”
The FCO comparative table is available at:
http://www.official-documents.gov.uk/document/cm73/7311/7311.asp
***
The UK House of Commons Library Research Paper 07/86 ‘The Treaty of Lisbon: amendments to the Treaty establishing the European Community’ (published 6 December 2007) wrapped up Transport in a brief comment on page 56:
“F. Transport
Title V, Articles 70-80 (Constitution Articles III-236 – 245) are on transport and are based largely on Articles 70 – 75 TEC, but with a change in the voting procedure to the OLP with QMV, except for Article 72, which replaces unanimity in the Constitution Article III-237 with a “special legislative procedure”. Other, minor, changes are Article 75(c), which adds the EP to those bodies to be consulted, and Article 78 (Constitution Article III-243), allowing the Article concerning German unification to be repealed after 5 years.
Present Articles 154 – 156 on Trans-European Networks (TENS) have been moved to Title VII and contain only minor amendments.”
The Library Research Paper 07/86 is available at:
http://www.parliament.uk/commons/lib/research/rp2007/rp07-086.pdf
***
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) made no explicit reference to Article 98 TFEU.
The report is accessible at:
http://www.publications.parliament.uk/pa/ld200708/ldselect/ldeucom/62/62.pdf
***
Sweden
The consultation paper of the government of Sweden, ‘Lissabonfördraget; Statsrådsberedningen, Departementsserien (Ds), Ds 2007:48’ published 20 December 2007, bundled together transport and trans-European networks under the headline ‘Transporter och transeuropeiska nät’ (page 280 to 282).
The text offers an overview of the coming Title VI ‘Transport’, and Article 78 TEC and TFEU (ToL) is explained on page 282:
“Vidare har genom Lissabonfördraget införts en möjlighet för rådet att, efter fem år från ikraftträdandet av fördraget, upphäva artikel 78 i EUF-fördraget, som möjliggör att vissa åtgärder vidtas för att uppväga de ekonomiska nackdelar som uppkommit genom Tysklands delning för näringslivet i vissa av de områden i förbundsrepubliken som påverkats av delningen. I en gemensam förklaring (28) till artikel 78 i fördraget om Europeiska unionens funktionssätt anges att bestämmelsen ska tillämpas i enlighet med gällande praxis från EU-domstolen.”
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), describes Article 78 TFEU (ToL), renumbered Article 98 TFEU, mentions Declaration 28 and refers to a more detailed treatment of declarations (page 206).
The Finnish ratification 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 rd), explains Article 78, mentions Declaration 28 and refers to the detailed text on declarations (page 209).
The ratification bill in Swedish can be accessed at:
http://www.finlex.fi/sv/esitykset/he/2008/20080023.pdf
***
Among the declarations annexed to the final act of the intergovernmental conference which adopted the Treaty of Lisbon, we find Declaration number 28 (OJ 9.5.2008 C 115/347):
28. Declaration on Article 98 of the Treaty on the Functioning of the European Union
The Conference notes that the provisions of Article 98 shall be applied in accordance with the current practice. The terms ‘such measures are required in order to compensate for the economic disadvantages caused by the division of Germany to the economy of certain areas of the Federal Republic affected by that division’ shall be interpreted in accordance with the existing case law of the Court of Justice of the European Union.
Ralf Grahn
The answer is ‘yes’ in at least one, highly atypical situation. Article 98 of the Treaty on the Functioning of the European Union offers the Council the possibility to repeal a privilege enjoyed by Germany as a legacy of the division of that country.
***
Article 98 of the Treaty on the Functioning of the European Union (TFEU) is found in the consolidated version of the Treaty on European Union and the Treaty on the Functioning of the European Union, published in the Official Journal of the European Union, OJ 9.5.2008 C 115/87:
Part Three ‘Policies and internal actions of the Union’
Title VI TFEU ‘Transport’
Article 98 TFEU
(ex Article 78 TEC)
The provisions of this Title shall not form an obstacle to the application of measures taken in the Federal Republic of Germany to the extent that such measures are required in order to compensate for the economic disadvantages caused by the division of Germany to the economy of certain areas of the Federal Republic affected by that division. Five years after the entry into force of the Treaty of Lisbon, the Council, acting on a proposal from the Commission, may adopt a decision repealing this Article.
***
In Article 2, point 73 of the Treaty of Lisbon (ToL) the intergovernmental conference (IGC 2007) laid out the specific amendments to Article 78 TEC (OJ 17.12.2007 C 306/68).
73) In Article 78, the following sentence shall be added:
‘Five years after the entry into force of the Treaty of Lisbon, the Council, acting on a proposal
from the Commission, may adopt a decision repealing this Article.’.
***
The TFEU table of equivalences tells us that Article 78 TEC first became Article 78 TFEU (ToL), but later renumbered Article 98 TFEU in the consolidated version (OJ 17.12.2007 C 306/210).
***
The current Article 78 of the Treaty establishing the European Community (TEC) is found under Title V ‘Transport’ in the latest consolidated version of the treaties in force (OJ 29.12.2006 C 321 E/73):
Article 78 TEC
The provisions of this title shall not form an obstacle to the application of measures taken in the Federal Republic of Germany to the extent that such measures are required in order to compensate for the economic disadvantages caused by the division of Germany to the economy of certain areas of the Federal Republic affected by that division.
***
For the sake of a systematic comparison, we look at the Article during the previous treaty reform stages.
First, we turn to the European Convention.
Article III-141 of the draft Treaty establishing a Constitution for Europe used the word ‘Section’ where the current Article 77 TEC says ‘title’, but otherwise the text was unchanged (OJ 18.7.2003 C 169/55).
***
Article III-243 of the Treaty establishing a Constitution for Europe added a sentence to the text of the European Convention (OJ 16.12.2004 C 310/107):
Article III-243 Constitution
The provisions of this Section shall not form an obstacle to the application of measures taken in the Federal Republic of Germany to the extent that such measures are required in order to compensate for the economic disadvantages caused by the division of Germany to the economy of certain areas of the Federal Republic affected by that division. Five years after the entry into force of the Treaty establishing a Constitution for Europe, the Council, acting on a proposal from the Commission, may adopt a European decision repealing this Article.
***
We can see that the IGC 2004 agreed on the possibility to repeal the provision on derogations on the basis of the division of Germany. This was taken over by the IGC 2007 as part of the 2004 package, if nothing in the IGC 2007 Mandate said anything to the contrary.
Naturally, the effects of the division of Germany are not over yet, almost two decades after German unification.
Sozialpolitik aktuell in Deutschland, Universität Duisburg, Essen, Institut für Soziologie, offers web pages with social indicators in Germany. In 2007 the unemployment rate in the old ‚Bundesländer’ was 8.4 per cent, but twice as high (16.8 per dent) in the new states. See Arbeitslosenquoten in neuen und alten Bundesländern 1975 – 2007:
http://www.sozialpolitik-aktuell.de/datensammlung/4/ab/abbIV35.pdf
On the other hand, increasingly a special rule for the rich Federal Republic of Germany is an anomaly in a European Union with ten poorer former Communist member states, without a richer big brother to help them out.
In principle, of anecdotal value only, one of the consequences of the stalled ratification process of the Constitutional Treaty was that this German special arrangement got an extra two year lease of life (if the Lisbon Treaty enters into force according to plan).
***
What have others said about Article 98 TFEU?
United Kingdom
Professor Steve Peers covered the Treaty of Lisbon in a number of Statewatch Analyses. ‘EU Reform Treaty Analysis no. 3.3: Revised text of Part Three, Titles I to VI of the Treaty establishing the European Community (TEC): Internal Market and competition’ (Version 2, 23 October 2007) includes the current Title V Transport.
Peers commented on the last sentence of Article 78 TEC and TFEU (ToL), to be renumbered Article 98 TFEU in the consolidated version, in the following way (page 23):
“The amendment is entirely new. It permits this Treaty Article to be amended (repealed) by QMV.”
The analysis 3.3 and other useful Statewatch analyses are available through:
http://www.statewatch.org/euconstitution.htm
***
The Foreign and Commonwealth Office (FCO) offers a convenient source of brief annotations on Lisbon Treaty amendments in ‘A comparative table of the current EC and EU treaties as amended by the Treaty of Lisbon’ (Command Paper 7311, published 21 January 2008). It offers the following comment on Article 98 TFEU, Article 78 TFEU (ToL) in the original Lisbon Treaty (page 11):
“In substance the same as Article 78 TEC, with a new power for the Council, by QMV, to repeal this provision.”
The FCO comparative table is available at:
http://www.official-documents.gov.uk/document/cm73/7311/7311.asp
***
The UK House of Commons Library Research Paper 07/86 ‘The Treaty of Lisbon: amendments to the Treaty establishing the European Community’ (published 6 December 2007) wrapped up Transport in a brief comment on page 56:
“F. Transport
Title V, Articles 70-80 (Constitution Articles III-236 – 245) are on transport and are based largely on Articles 70 – 75 TEC, but with a change in the voting procedure to the OLP with QMV, except for Article 72, which replaces unanimity in the Constitution Article III-237 with a “special legislative procedure”. Other, minor, changes are Article 75(c), which adds the EP to those bodies to be consulted, and Article 78 (Constitution Article III-243), allowing the Article concerning German unification to be repealed after 5 years.
Present Articles 154 – 156 on Trans-European Networks (TENS) have been moved to Title VII and contain only minor amendments.”
The Library Research Paper 07/86 is available at:
http://www.parliament.uk/commons/lib/research/rp2007/rp07-086.pdf
***
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) made no explicit reference to Article 98 TFEU.
The report is accessible at:
http://www.publications.parliament.uk/pa/ld200708/ldselect/ldeucom/62/62.pdf
***
Sweden
The consultation paper of the government of Sweden, ‘Lissabonfördraget; Statsrådsberedningen, Departementsserien (Ds), Ds 2007:48’ published 20 December 2007, bundled together transport and trans-European networks under the headline ‘Transporter och transeuropeiska nät’ (page 280 to 282).
The text offers an overview of the coming Title VI ‘Transport’, and Article 78 TEC and TFEU (ToL) is explained on page 282:
“Vidare har genom Lissabonfördraget införts en möjlighet för rådet att, efter fem år från ikraftträdandet av fördraget, upphäva artikel 78 i EUF-fördraget, som möjliggör att vissa åtgärder vidtas för att uppväga de ekonomiska nackdelar som uppkommit genom Tysklands delning för näringslivet i vissa av de områden i förbundsrepubliken som påverkats av delningen. I en gemensam förklaring (28) till artikel 78 i fördraget om Europeiska unionens funktionssätt anges att bestämmelsen ska tillämpas i enlighet med gällande praxis från EU-domstolen.”
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), describes Article 78 TFEU (ToL), renumbered Article 98 TFEU, mentions Declaration 28 and refers to a more detailed treatment of declarations (page 206).
The Finnish ratification 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 rd), explains Article 78, mentions Declaration 28 and refers to the detailed text on declarations (page 209).
The ratification bill in Swedish can be accessed at:
http://www.finlex.fi/sv/esitykset/he/2008/20080023.pdf
***
Among the declarations annexed to the final act of the intergovernmental conference which adopted the Treaty of Lisbon, we find Declaration number 28 (OJ 9.5.2008 C 115/347):
28. Declaration on Article 98 of the Treaty on the Functioning of the European Union
The Conference notes that the provisions of Article 98 shall be applied in accordance with the current practice. The terms ‘such measures are required in order to compensate for the economic disadvantages caused by the division of Germany to the economy of certain areas of the Federal Republic affected by that division’ shall be interpreted in accordance with the existing case law of the Court of Justice of the European Union.
Ralf Grahn
Histoire de la construction européenne
Sixty years from the Congress of Europe is a good enough cause to take a long view of European integration. Reflection is needed as much as celebration.
Marie-Thérèse Bitsch has written a book, which should be translated into every European language and read by each citizen. The new pocket edition of her « Histoire de la construction européenne de 1945 à nos jours » manages to take the reader through the main developments from the end of World War II to the great enlargement of the European Union in 2004.
The 401 pages are not confined to the European Union and its predecessors, but include the other manifestations of European integration, such as the OECE (OECD), the Council of Europe, the defence alliances and the CSCE (OSCE).
The book is not only a good read, but it is detailed enough to serve as an introductory source for serious students who want to explore certain developments.
***
Marie-Thérèse Bitsch: Histoire de la construction européenne de 1945 à nos jours ; Nouvelle édition mise à jour (Editions Complexe, 2008 ; 11,90 €)
Ralf Grahn
Marie-Thérèse Bitsch has written a book, which should be translated into every European language and read by each citizen. The new pocket edition of her « Histoire de la construction européenne de 1945 à nos jours » manages to take the reader through the main developments from the end of World War II to the great enlargement of the European Union in 2004.
The 401 pages are not confined to the European Union and its predecessors, but include the other manifestations of European integration, such as the OECE (OECD), the Council of Europe, the defence alliances and the CSCE (OSCE).
The book is not only a good read, but it is detailed enough to serve as an introductory source for serious students who want to explore certain developments.
***
Marie-Thérèse Bitsch: Histoire de la construction européenne de 1945 à nos jours ; Nouvelle édition mise à jour (Editions Complexe, 2008 ; 11,90 €)
Ralf Grahn
Alfred the Ordinary
You take up so many levels of matters and such various grounds for discontent in your comment on transport support and protection that it is difficult to answer within the space of comment of normal proportions. In a way, my writing about the Lisbon Treaty is a running commentary, although only one Article is dealt with each time.
Treaties: In spite of the fact that my postings are excruciatingly dull to read, I think that they have some merit in that they deal with every provision of the Lisbon Treaty, including the unchanged ones of little interest to national governments and parliaments with regard to the ongoing ratification processes.
Importance of treaties: Like it or not, but the European Community (European Union) is based on the rule of law. Thus, what the treaties say and what they omit forms the basis for secondary legislation and subsequent action.
Transport: I have to admit that the vagueness of the (unreformed) transport Articles is somewhat disturbing. Yesterday I proposed that the treaties should be overhauled as to the internal policy areas. The common agricultural policy and the common transport policy are two examples of practically unreformed areas, and there are many more or less redundant provisions elsewhere, which have been technically adjusted, but just clutter up the coming TFEU.
EU studies: If, as some purport, 80 per cent of national legislation emanates from “Brussels” (or even significantly less, as I believe), curricula for EU law and politics should be extended significantly. Yesterday I noted that students probably learn nothing about EU transport (or most other policy areas) from the standard EU law coursebooks in English. I also noted that many continental students seem to get a more complete view of the EU.
Internal market, competition and protectionism: French protectionism has deep roots; a sense of inferiority running back to at least German unification in the late 19th century. But if you abolish the internal market and its competition rules, as well as the supranational Commission as the guardian of the treaties, what would result? Enforcing and improving competition rules is a hard slog for the Commission, but have you thought through the alternatives to the EU (countries) as a whole, or even the situation for the United Kingdom after possible secession?
CAP: In my view, the EU would be much better off if the resources spent on the common agricultural policy were used to improve the conditions for Europe to compete in a globalising world. But how can the resources and expenditure of the EU be reformed decisively as long as the member states’ governments have to reach unanimous decisions on the financial perspectives?
Fisheries: Is not the global root problem overfishing? What should be done about that?
Black and white: Any working human society requires some sort of adaptation, be it family, work, municipality, region, state or the EU. Wholesale rejection is seldom the right answer. I have to adjust to the fact that some of the decisions and actions of these entities are less palatable, even distasteful. When in a minority, I can try to influence opinions and to work for what I believe to be a more constructive future majority. Where does anger lead, if not turned into action for improvement?
Intergovernmentalism: Many of the basic problems of the European Union have much to do with the defects and limits of intergovernmental cooperation. Often it would be better to ask about the interests of EU citizens, instead of brandishing barren concepts like ‘sovereignty’ when the nation state is incapable of offering solutions.
In my humble opinion, we Europeans need a European Union, but a better EU based on effective decision-making, democracy and solidarity.
Imperfect as it is, the Treaty of Lisbon is a step in the right direction, but many more are needed.
Ralf Grahn
Treaties: In spite of the fact that my postings are excruciatingly dull to read, I think that they have some merit in that they deal with every provision of the Lisbon Treaty, including the unchanged ones of little interest to national governments and parliaments with regard to the ongoing ratification processes.
Importance of treaties: Like it or not, but the European Community (European Union) is based on the rule of law. Thus, what the treaties say and what they omit forms the basis for secondary legislation and subsequent action.
Transport: I have to admit that the vagueness of the (unreformed) transport Articles is somewhat disturbing. Yesterday I proposed that the treaties should be overhauled as to the internal policy areas. The common agricultural policy and the common transport policy are two examples of practically unreformed areas, and there are many more or less redundant provisions elsewhere, which have been technically adjusted, but just clutter up the coming TFEU.
EU studies: If, as some purport, 80 per cent of national legislation emanates from “Brussels” (or even significantly less, as I believe), curricula for EU law and politics should be extended significantly. Yesterday I noted that students probably learn nothing about EU transport (or most other policy areas) from the standard EU law coursebooks in English. I also noted that many continental students seem to get a more complete view of the EU.
Internal market, competition and protectionism: French protectionism has deep roots; a sense of inferiority running back to at least German unification in the late 19th century. But if you abolish the internal market and its competition rules, as well as the supranational Commission as the guardian of the treaties, what would result? Enforcing and improving competition rules is a hard slog for the Commission, but have you thought through the alternatives to the EU (countries) as a whole, or even the situation for the United Kingdom after possible secession?
CAP: In my view, the EU would be much better off if the resources spent on the common agricultural policy were used to improve the conditions for Europe to compete in a globalising world. But how can the resources and expenditure of the EU be reformed decisively as long as the member states’ governments have to reach unanimous decisions on the financial perspectives?
Fisheries: Is not the global root problem overfishing? What should be done about that?
Black and white: Any working human society requires some sort of adaptation, be it family, work, municipality, region, state or the EU. Wholesale rejection is seldom the right answer. I have to adjust to the fact that some of the decisions and actions of these entities are less palatable, even distasteful. When in a minority, I can try to influence opinions and to work for what I believe to be a more constructive future majority. Where does anger lead, if not turned into action for improvement?
Intergovernmentalism: Many of the basic problems of the European Union have much to do with the defects and limits of intergovernmental cooperation. Often it would be better to ask about the interests of EU citizens, instead of brandishing barren concepts like ‘sovereignty’ when the nation state is incapable of offering solutions.
In my humble opinion, we Europeans need a European Union, but a better EU based on effective decision-making, democracy and solidarity.
Imperfect as it is, the Treaty of Lisbon is a step in the right direction, but many more are needed.
Ralf Grahn
Thursday, 22 May 2008
EU TFEU: Transport charges and dues
The EU Treaty of Lisbon takes over the provision on charges and dues in respect of the crossing of frontiers which are charged by a carrier in addition to the transport rates, but the new treaty gives no indication of if the provision has any relevance since the scrapping of border controls in the Schengen area.
Is it time to overhaul both EU treaties and coursebooks?
***
Article 97 of the Treaty on the Functioning of the European Union (TFEU) is found in the consolidated version of the Treaty on European Union and the Treaty on the Functioning of the European Union, published in the Official Journal of the European Union, OJ 9.5.2008 C 115/87:
Part Three ‘Policies and internal actions of the Union’
Title VI TFEU ‘Transport’
Article 97 TFEU
(ex Article 77 TEC)
Charges or dues in respect of the crossing of frontiers which are charged by a carrier in addition to the transport rates shall not exceed a reasonable level after taking the costs actually incurred thereby into account.
Member States shall endeavour to reduce these costs progressively.
The Commission may make recommendations to Member States for the application of this Article.
***
In Article 2, point 72 of the Treaty of Lisbon (ToL) the intergovernmental conference (IGC 2007) laid out the specific amendments to Article 75 TEC, and in point 73 it dealt with Article 78 TEC. Thus, no specific amendments were made to Article 77 TEC (OJ 17.12.2007 C 306/68).
The TFEU table of equivalences tells us that Article 77 TEC first became Article 77 TFEU (ToL), but later renumbered Article 97 TFEU in the consolidated version (OJ 17.12.2007 C 306/210).
***
The current Article 77 of the Treaty establishing the European Community (TEC) is found under Title V ‘Transport’ in the latest consolidated version of the treaties in force (OJ 29.12.2006 C 321 E/72). The wording is exactly the same as in Article 97 TFEU.
***
Still, for the sake of a systematic comparison, we look at the Article during the previous treaty reform stages.
Therefore, we turn to the European Convention.
Article III-140 of the draft Treaty establishing a Constitution for Europe just deleted the word ‘progressively’ from the text of the current Article 77 TEC (OJ 18.7.2003 C 169/54).
***
Article III-242 of the Treaty establishing a Constitution for Europe adopted the text of the European Convention unchanged (OJ 16.12.2004 C 310/107).
***
The IGC 2007 managed to keep the bulk of the Lisbon Treaty down by basing its amendments on the current treaties and by disregarding cosmetic changes in a number of instances. The word ‘progressively’ flows from the TEC to the TFEU.
***
Have others found anything to say about an unchanged provision of the Lisbon Treaty?
United Kingdom
Professor Steve Peers covered the Treaty of Lisbon in a number of Statewatch Analyses. ‘EU Reform Treaty Analysis no. 3.3: Revised text of Part Three, Titles I to VI of the Treaty establishing the European Community (TEC): Internal Market and competition’ (Version 2, 23 October 2007) includes the current Title V Transport.
The unchanged Article 77 TEC and TFEU (ToL), to be renumbered Article 97 TFEU in the consolidated version, drew no comment (page 22).
The analysis 3.3 and other useful Statewatch analyses are available through:
http://www.statewatch.org/euconstitution.htm
***
The Foreign and Commonwealth Office (FCO) offers a convenient source of brief annotations on Lisbon Treaty amendments in ‘A comparative table of the current EC and EU treaties as amended by the Treaty of Lisbon’ (Command Paper 7311, published 21 January 2008). The comment on Article 97 TFEU, Article 77 TFEU (ToL) in the original Lisbon Treaty, is short (page 11):
“Unchanged from Article 77 TEC.”
The FCO comparative table is available at:
http://www.official-documents.gov.uk/document/cm73/7311/7311.asp
***
The UK House of Commons Library Research Paper 07/86 ‘The Treaty of Lisbon: amendments to the Treaty establishing the European Community’ (published 6 December 2007) wrapped up Transport in a brief comment on page 56:
“F. Transport
Title V, Articles 70-80 (Constitution Articles III-236 – 245) are on transport and are based largely on Articles 70 – 75 TEC, but with a change in the voting procedure to the OLP with QMV, except for Article 72, which replaces unanimity in the Constitution Article III-237 with a “special legislative procedure”. Other, minor, changes are Article 75(c), which adds the EP to those bodies to be consulted, and Article 78 (Constitution Article III-243), allowing the Article concerning German unification to be repealed after 5 years.
Present Articles 154 – 156 on Trans-European Networks (TENS) have been moved to Title VII and contain only minor amendments.”
The Library Research Paper 07/86 is available at:
http://www.parliament.uk/commons/lib/research/rp2007/rp07-086.pdf
***
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) made no explicit reference to Article 97 TFEU.
The report is accessible at:
http://www.publications.parliament.uk/pa/ld200708/ldselect/ldeucom/62/62.pdf
***
Sweden
The consultation paper of the government of Sweden, ‘Lissabonfördraget; Statsrådsberedningen, Departementsserien (Ds), Ds 2007:48’ published 20 December 2007, bundled together transport and trans-European networks under the headline ‘Transporter och transeuropeiska nät’ (page 280 to 282).
The text offers an overview of the coming Title VI ‘Transport’, but I found nothing on Article 77 TEC and ToL.
The consultation paper ’Lissabonfördraget’ is available at:
http://www.regeringen.se/content/1/c6/09/49/81/107aa077.pdf
***
Finland
The systematic 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), bundles together Articles 76 and 77 TFEU (ToL), renumbered Articles 96 and 97 TFEU, in a brief explanation (page 206).
The Finnish ratification 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 rd), offers the same explanation on page 209:
The ratification bill in Swedish can be accessed at:
http://www.finlex.fi/sv/esitykset/he/2008/20080023.pdf
***
From the viewpoint of treaty change, a provision without amendments is uninteresting, as shown by the fair sample of documents we have looked at. For national legislators these provisions are covered by earlier ratifications.
Possibly, a provision such as 97 TFEU may have become redundant, but lives on because there has been no thorough spring-cleaning of the internal policy areas.
But how is a student to know, since internal policy sectors are hardly dealt with at all in university curricula, in English? I failed to find ‘Transport’ indexed in four coursebooks.
At least some continental books for students seem to take a broader ‘law and politics’ approach. Here are a few examples of general books with chapters on transport (although there may be later editions than the ones I have at hand):
Roland Bieber, Astrid Epiney & Marcel Haag: Die Europäische Union, Europarecht und Politik (6. Auflage, Nomos, 2005)
Fernando Díez Moreno: Manual de derecho de la Unión Europea (Tercera edición, Editorial Aranzadi, 2005)
Louis Dubouis & Claude Blumann: Droit matériel de l’Union européenne (3e édition, Montchrestien, 2004)
Enrique Linde Paniagua (Coordinador) : Políticas de la Unión Europea (2a edicón, Colex, 2005)
Ralf Grahn
Is it time to overhaul both EU treaties and coursebooks?
***
Article 97 of the Treaty on the Functioning of the European Union (TFEU) is found in the consolidated version of the Treaty on European Union and the Treaty on the Functioning of the European Union, published in the Official Journal of the European Union, OJ 9.5.2008 C 115/87:
Part Three ‘Policies and internal actions of the Union’
Title VI TFEU ‘Transport’
Article 97 TFEU
(ex Article 77 TEC)
Charges or dues in respect of the crossing of frontiers which are charged by a carrier in addition to the transport rates shall not exceed a reasonable level after taking the costs actually incurred thereby into account.
Member States shall endeavour to reduce these costs progressively.
The Commission may make recommendations to Member States for the application of this Article.
***
In Article 2, point 72 of the Treaty of Lisbon (ToL) the intergovernmental conference (IGC 2007) laid out the specific amendments to Article 75 TEC, and in point 73 it dealt with Article 78 TEC. Thus, no specific amendments were made to Article 77 TEC (OJ 17.12.2007 C 306/68).
The TFEU table of equivalences tells us that Article 77 TEC first became Article 77 TFEU (ToL), but later renumbered Article 97 TFEU in the consolidated version (OJ 17.12.2007 C 306/210).
***
The current Article 77 of the Treaty establishing the European Community (TEC) is found under Title V ‘Transport’ in the latest consolidated version of the treaties in force (OJ 29.12.2006 C 321 E/72). The wording is exactly the same as in Article 97 TFEU.
***
Still, for the sake of a systematic comparison, we look at the Article during the previous treaty reform stages.
Therefore, we turn to the European Convention.
Article III-140 of the draft Treaty establishing a Constitution for Europe just deleted the word ‘progressively’ from the text of the current Article 77 TEC (OJ 18.7.2003 C 169/54).
***
Article III-242 of the Treaty establishing a Constitution for Europe adopted the text of the European Convention unchanged (OJ 16.12.2004 C 310/107).
***
The IGC 2007 managed to keep the bulk of the Lisbon Treaty down by basing its amendments on the current treaties and by disregarding cosmetic changes in a number of instances. The word ‘progressively’ flows from the TEC to the TFEU.
***
Have others found anything to say about an unchanged provision of the Lisbon Treaty?
United Kingdom
Professor Steve Peers covered the Treaty of Lisbon in a number of Statewatch Analyses. ‘EU Reform Treaty Analysis no. 3.3: Revised text of Part Three, Titles I to VI of the Treaty establishing the European Community (TEC): Internal Market and competition’ (Version 2, 23 October 2007) includes the current Title V Transport.
The unchanged Article 77 TEC and TFEU (ToL), to be renumbered Article 97 TFEU in the consolidated version, drew no comment (page 22).
The analysis 3.3 and other useful Statewatch analyses are available through:
http://www.statewatch.org/euconstitution.htm
***
The Foreign and Commonwealth Office (FCO) offers a convenient source of brief annotations on Lisbon Treaty amendments in ‘A comparative table of the current EC and EU treaties as amended by the Treaty of Lisbon’ (Command Paper 7311, published 21 January 2008). The comment on Article 97 TFEU, Article 77 TFEU (ToL) in the original Lisbon Treaty, is short (page 11):
“Unchanged from Article 77 TEC.”
The FCO comparative table is available at:
http://www.official-documents.gov.uk/document/cm73/7311/7311.asp
***
The UK House of Commons Library Research Paper 07/86 ‘The Treaty of Lisbon: amendments to the Treaty establishing the European Community’ (published 6 December 2007) wrapped up Transport in a brief comment on page 56:
“F. Transport
Title V, Articles 70-80 (Constitution Articles III-236 – 245) are on transport and are based largely on Articles 70 – 75 TEC, but with a change in the voting procedure to the OLP with QMV, except for Article 72, which replaces unanimity in the Constitution Article III-237 with a “special legislative procedure”. Other, minor, changes are Article 75(c), which adds the EP to those bodies to be consulted, and Article 78 (Constitution Article III-243), allowing the Article concerning German unification to be repealed after 5 years.
Present Articles 154 – 156 on Trans-European Networks (TENS) have been moved to Title VII and contain only minor amendments.”
The Library Research Paper 07/86 is available at:
http://www.parliament.uk/commons/lib/research/rp2007/rp07-086.pdf
***
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) made no explicit reference to Article 97 TFEU.
The report is accessible at:
http://www.publications.parliament.uk/pa/ld200708/ldselect/ldeucom/62/62.pdf
***
Sweden
The consultation paper of the government of Sweden, ‘Lissabonfördraget; Statsrådsberedningen, Departementsserien (Ds), Ds 2007:48’ published 20 December 2007, bundled together transport and trans-European networks under the headline ‘Transporter och transeuropeiska nät’ (page 280 to 282).
The text offers an overview of the coming Title VI ‘Transport’, but I found nothing on Article 77 TEC and ToL.
The consultation paper ’Lissabonfördraget’ is available at:
http://www.regeringen.se/content/1/c6/09/49/81/107aa077.pdf
***
Finland
The systematic 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), bundles together Articles 76 and 77 TFEU (ToL), renumbered Articles 96 and 97 TFEU, in a brief explanation (page 206).
The Finnish ratification 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 rd), offers the same explanation on page 209:
The ratification bill in Swedish can be accessed at:
http://www.finlex.fi/sv/esitykset/he/2008/20080023.pdf
***
From the viewpoint of treaty change, a provision without amendments is uninteresting, as shown by the fair sample of documents we have looked at. For national legislators these provisions are covered by earlier ratifications.
Possibly, a provision such as 97 TFEU may have become redundant, but lives on because there has been no thorough spring-cleaning of the internal policy areas.
But how is a student to know, since internal policy sectors are hardly dealt with at all in university curricula, in English? I failed to find ‘Transport’ indexed in four coursebooks.
At least some continental books for students seem to take a broader ‘law and politics’ approach. Here are a few examples of general books with chapters on transport (although there may be later editions than the ones I have at hand):
Roland Bieber, Astrid Epiney & Marcel Haag: Die Europäische Union, Europarecht und Politik (6. Auflage, Nomos, 2005)
Fernando Díez Moreno: Manual de derecho de la Unión Europea (Tercera edición, Editorial Aranzadi, 2005)
Louis Dubouis & Claude Blumann: Droit matériel de l’Union européenne (3e édition, Montchrestien, 2004)
Enrique Linde Paniagua (Coordinador) : Políticas de la Unión Europea (2a edicón, Colex, 2005)
Ralf Grahn
Wednesday, 21 May 2008
EU TFEU: Transport support and protection
Under the Treaty of Lisbon, the European Union prohibits support and protection for transport firms or industries as it does today, with the Commission able to allow exceptions.
***
Article 96 of the Treaty on the Functioning of the European Union (TFEU) is found in the consolidated version of the Treaty on European Union and the Treaty on the Functioning of the European Union, published in the Official Journal of the European Union, OJ 9.5.2008 C 115/86–87:
Part Three ‘Policies and internal actions of the Union’
Title VI TFEU ‘Transport’
Article 96 TFEU
(ex Article 76 TEC)
1. The imposition by a Member State, in respect of transport operations carried out within the Union, of rates and conditions involving any element of support or protection in the interest of one or more particular undertakings or industries shall be prohibited, unless authorised by the Commission.
2. The Commission shall, acting on its own initiative or on application by a Member State, examine the rates and conditions referred to in paragraph 1, taking account in particular of the requirements of an appropriate regional economic policy, the needs of underdeveloped areas and the problems of areas seriously affected by political circumstances on the one hand, and of the effects of such rates and conditions on competition between the different modes of transport on the other.
After consulting each Member State concerned, the Commission shall take the necessary decisions.
3. The prohibition provided for in paragraph 1 shall not apply to tariffs fixed to meet competition.
***
In Article 2, point 72 of the Treaty of Lisbon (ToL) the intergovernmental conference (IGC 2007) laid out the specific amendments to Article 75 TEC, and in point 73 it dealt with Article 78 TEC. Thus, no specific amendments were made to Article 76 TEC. (OJ 17.12.2007 C 306/68):
The TFEU table of equivalences tells us that Article 76 TEC first became Article 76 TFEU (ToL), but later renumbered Article 96 TFEU in the consolidated version (OJ 17.12.2007 C 306/210).
***
The current Article 76 of the Treaty establishing the European Community (TEC) is found under Title V ‘Transport’ in the latest consolidated version of the treaties in force (OJ 29.12.2006 C 321 E/72):
Article 76 TEC
1. The imposition by a Member State, in respect of transport operations carried out within the Community, of rates and conditions involving any element of support or protection in the interest of one or more particular undertakings or industries shall be prohibited, unless authorised by the Commission.
2. The Commission shall, acting on its own initiative or on application by a Member State, examine the rates and conditions referred to in paragraph 1, taking account in particular of the requirements of an appropriate regional economic policy, the needs of underdeveloped areas and the problems of areas seriously affected by political circumstances on the one hand, and of the effects of such rates and conditions on competition between the different modes of transport on the other.
After consulting each Member State concerned, the Commission shall take the necessary decisions.
3. The prohibition provided for in paragraph 1 shall not apply to tariffs fixed to meet competition.
***
From the current TEC to the TFEU the ‘Community’ has become the ‘Union’, one of the so called horizontal amendments.
***
This does not lead us to expect any mind-blowing innovations during the previous stages of the treaty reform process, but the aim of systematic comparison requires a look at each version of every Article.
Therefore, we turn to the European Convention.
Article III-139 of the draft Treaty establishing a Constitution for Europe made minimal stylistic amendments to the current Article 76 TEC (OJ 18.7.2003 C 169/54).
***
Article III-241 of the Treaty establishing a Constitution for Europe adopted the text of the European Convention unchanged (OJ 16.12.2004 C 310/107).
***
Indeed, there is very little to say about treaty change.
Someone may want to reflect on the recurring theme of Title VI on transport policy and the framework of a common transport policy.
The words in Article 91(1) TFEU ‘and taking into account the distinctive features of transport’ are echoed in the later Articles. Aids, rates and conditions, discrimination as well as support and protection for particular firms or industries in the area of transport have been given their own rules, reminiscent of the general provisions for the internal market, but still different.
***
Have others found anything to say about a virtually unchanged provision of the Lisbon Treaty?
United Kingdom
Professor Steve Peers covered the Treaty of Lisbon in a number of Statewatch Analyses. ‘EU Reform Treaty Analysis no. 3.3: Revised text of Part Three, Titles I to VI of the Treaty establishing the European Community (TEC): Internal Market and competition’ (Version 2, 23 October 2007) includes the current Title V Transport.
Peers highlighted the differences between the current Article 76 TEC, the Constitutional Treaty and the Lisbon Treaty, but found no need to comment on Article 76 TFEU (ToL), to be renumbered Article 96 TFEU in the consolidated version (page 22).
The analysis 3.3 and other useful Statewatch analyses are available through:
http://www.statewatch.org/euconstitution.htm
***
The Foreign and Commonwealth Office (FCO) offers a convenient source of brief annotations on Lisbon Treaty amendments in ‘A comparative table of the current EC and EU treaties as amended by the Treaty of Lisbon’ (Command Paper 7311, published 21 January 2008). The comment on Article 96 TFEU, Article 76 TFEU (ToL) in the original Lisbon Treaty, is short (page 11):
“Unchanged from Article 76 TEC.”
The FCO comparative table is available at:
http://www.official-documents.gov.uk/document/cm73/7311/7311.asp
***
The UK House of Commons Library Research Paper 07/86 ‘The Treaty of Lisbon: amendments to the Treaty establishing the European Community’ (published 6 December 2007) wrapped up Transport in a brief comment on page 56:
“F. Transport
Title V, Articles 70-80 (Constitution Articles III-236 – 245) are on transport and are based largely on Articles 70 – 75 TEC, but with a change in the voting procedure to the OLP with QMV, except for Article 72, which replaces unanimity in the Constitution Article III-237 with a “special legislative procedure”. Other, minor, changes are Article 75(c), which adds the EP to those bodies to be consulted, and Article 78 (Constitution Article III-243), allowing the Article concerning German unification to be repealed after 5 years.
Present Articles 154 – 156 on Trans-European Networks (TENS) have been moved to Title VII and contain only minor amendments.”
The Library Research Paper 07/86 is available at:
http://www.parliament.uk/commons/lib/research/rp2007/rp07-086.pdf
***
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) made no explicit reference to Article 96 TFEU.
The report is accessible at:
http://www.publications.parliament.uk/pa/ld200708/ldselect/ldeucom/62/62.pdf
***
Sweden
The consultation paper of the government of Sweden, ‘Lissabonfördraget; Statsrådsberedningen, Departementsserien (Ds), Ds 2007:48’ published 20 December 2007, bundled together transport and trans-European networks under the headline ‘Transporter och transeuropeiska nät’ (page 280 to 282).
The text offers an overview of the coming Title VI ‘Transport’, but I found nothing on Article 76 TEC and ToL.
The consultation paper ’Lissabonfördraget’ is available at:
http://www.regeringen.se/content/1/c6/09/49/81/107aa077.pdf
***
Finland
The systematic 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), bundles together Articles 76 and 77 TFEU (ToL), renumbered Articles 96 and 97 TFEU, in a brief explanation (page 206).
The Finnish ratification 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 rd), offers the same explanation on page 209:
The ratification bill in Swedish can be accessed at:
http://www.finlex.fi/sv/esitykset/he/2008/20080023.pdf
Ralf Grahn
***
Article 96 of the Treaty on the Functioning of the European Union (TFEU) is found in the consolidated version of the Treaty on European Union and the Treaty on the Functioning of the European Union, published in the Official Journal of the European Union, OJ 9.5.2008 C 115/86–87:
Part Three ‘Policies and internal actions of the Union’
Title VI TFEU ‘Transport’
Article 96 TFEU
(ex Article 76 TEC)
1. The imposition by a Member State, in respect of transport operations carried out within the Union, of rates and conditions involving any element of support or protection in the interest of one or more particular undertakings or industries shall be prohibited, unless authorised by the Commission.
2. The Commission shall, acting on its own initiative or on application by a Member State, examine the rates and conditions referred to in paragraph 1, taking account in particular of the requirements of an appropriate regional economic policy, the needs of underdeveloped areas and the problems of areas seriously affected by political circumstances on the one hand, and of the effects of such rates and conditions on competition between the different modes of transport on the other.
After consulting each Member State concerned, the Commission shall take the necessary decisions.
3. The prohibition provided for in paragraph 1 shall not apply to tariffs fixed to meet competition.
***
In Article 2, point 72 of the Treaty of Lisbon (ToL) the intergovernmental conference (IGC 2007) laid out the specific amendments to Article 75 TEC, and in point 73 it dealt with Article 78 TEC. Thus, no specific amendments were made to Article 76 TEC. (OJ 17.12.2007 C 306/68):
The TFEU table of equivalences tells us that Article 76 TEC first became Article 76 TFEU (ToL), but later renumbered Article 96 TFEU in the consolidated version (OJ 17.12.2007 C 306/210).
***
The current Article 76 of the Treaty establishing the European Community (TEC) is found under Title V ‘Transport’ in the latest consolidated version of the treaties in force (OJ 29.12.2006 C 321 E/72):
Article 76 TEC
1. The imposition by a Member State, in respect of transport operations carried out within the Community, of rates and conditions involving any element of support or protection in the interest of one or more particular undertakings or industries shall be prohibited, unless authorised by the Commission.
2. The Commission shall, acting on its own initiative or on application by a Member State, examine the rates and conditions referred to in paragraph 1, taking account in particular of the requirements of an appropriate regional economic policy, the needs of underdeveloped areas and the problems of areas seriously affected by political circumstances on the one hand, and of the effects of such rates and conditions on competition between the different modes of transport on the other.
After consulting each Member State concerned, the Commission shall take the necessary decisions.
3. The prohibition provided for in paragraph 1 shall not apply to tariffs fixed to meet competition.
***
From the current TEC to the TFEU the ‘Community’ has become the ‘Union’, one of the so called horizontal amendments.
***
This does not lead us to expect any mind-blowing innovations during the previous stages of the treaty reform process, but the aim of systematic comparison requires a look at each version of every Article.
Therefore, we turn to the European Convention.
Article III-139 of the draft Treaty establishing a Constitution for Europe made minimal stylistic amendments to the current Article 76 TEC (OJ 18.7.2003 C 169/54).
***
Article III-241 of the Treaty establishing a Constitution for Europe adopted the text of the European Convention unchanged (OJ 16.12.2004 C 310/107).
***
Indeed, there is very little to say about treaty change.
Someone may want to reflect on the recurring theme of Title VI on transport policy and the framework of a common transport policy.
The words in Article 91(1) TFEU ‘and taking into account the distinctive features of transport’ are echoed in the later Articles. Aids, rates and conditions, discrimination as well as support and protection for particular firms or industries in the area of transport have been given their own rules, reminiscent of the general provisions for the internal market, but still different.
***
Have others found anything to say about a virtually unchanged provision of the Lisbon Treaty?
United Kingdom
Professor Steve Peers covered the Treaty of Lisbon in a number of Statewatch Analyses. ‘EU Reform Treaty Analysis no. 3.3: Revised text of Part Three, Titles I to VI of the Treaty establishing the European Community (TEC): Internal Market and competition’ (Version 2, 23 October 2007) includes the current Title V Transport.
Peers highlighted the differences between the current Article 76 TEC, the Constitutional Treaty and the Lisbon Treaty, but found no need to comment on Article 76 TFEU (ToL), to be renumbered Article 96 TFEU in the consolidated version (page 22).
The analysis 3.3 and other useful Statewatch analyses are available through:
http://www.statewatch.org/euconstitution.htm
***
The Foreign and Commonwealth Office (FCO) offers a convenient source of brief annotations on Lisbon Treaty amendments in ‘A comparative table of the current EC and EU treaties as amended by the Treaty of Lisbon’ (Command Paper 7311, published 21 January 2008). The comment on Article 96 TFEU, Article 76 TFEU (ToL) in the original Lisbon Treaty, is short (page 11):
“Unchanged from Article 76 TEC.”
The FCO comparative table is available at:
http://www.official-documents.gov.uk/document/cm73/7311/7311.asp
***
The UK House of Commons Library Research Paper 07/86 ‘The Treaty of Lisbon: amendments to the Treaty establishing the European Community’ (published 6 December 2007) wrapped up Transport in a brief comment on page 56:
“F. Transport
Title V, Articles 70-80 (Constitution Articles III-236 – 245) are on transport and are based largely on Articles 70 – 75 TEC, but with a change in the voting procedure to the OLP with QMV, except for Article 72, which replaces unanimity in the Constitution Article III-237 with a “special legislative procedure”. Other, minor, changes are Article 75(c), which adds the EP to those bodies to be consulted, and Article 78 (Constitution Article III-243), allowing the Article concerning German unification to be repealed after 5 years.
Present Articles 154 – 156 on Trans-European Networks (TENS) have been moved to Title VII and contain only minor amendments.”
The Library Research Paper 07/86 is available at:
http://www.parliament.uk/commons/lib/research/rp2007/rp07-086.pdf
***
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) made no explicit reference to Article 96 TFEU.
The report is accessible at:
http://www.publications.parliament.uk/pa/ld200708/ldselect/ldeucom/62/62.pdf
***
Sweden
The consultation paper of the government of Sweden, ‘Lissabonfördraget; Statsrådsberedningen, Departementsserien (Ds), Ds 2007:48’ published 20 December 2007, bundled together transport and trans-European networks under the headline ‘Transporter och transeuropeiska nät’ (page 280 to 282).
The text offers an overview of the coming Title VI ‘Transport’, but I found nothing on Article 76 TEC and ToL.
The consultation paper ’Lissabonfördraget’ is available at:
http://www.regeringen.se/content/1/c6/09/49/81/107aa077.pdf
***
Finland
The systematic 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), bundles together Articles 76 and 77 TFEU (ToL), renumbered Articles 96 and 97 TFEU, in a brief explanation (page 206).
The Finnish ratification 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 rd), offers the same explanation on page 209:
The ratification bill in Swedish can be accessed at:
http://www.finlex.fi/sv/esitykset/he/2008/20080023.pdf
Ralf Grahn
Tuesday, 20 May 2008
EU TFEU: Transport non-discrimination and direct effect
What’s in a name? When discrimination ‘shall be abolished’ is replaced by ‘shall be prohibited’ in the Treaty of Lisbon, non-discrimination and direct effect appear in a new light.
***
Article 95 of the Treaty on the Functioning of the European Union (TFEU) is found in the consolidated version of the Treaty on European Union and the Treaty on the Functioning of the European Union, published in the Official Journal of the European Union, OJ 9.5.2008 C 115/86:
Part Three ‘Policies and internal actions of the Union’
Title VI TFEU ‘Transport’
Article 95 TFEU
(ex Article 75 TEC)
1. In the case of transport within the Union, discrimination which takes the form of carriers charging different rates and imposing different conditions for the carriage of the same goods over the same transport links on grounds of the country of origin or of destination of the goods in question shall be prohibited.
2. Paragraph 1 shall not prevent the European Parliament and the Council from adopting other measures pursuant to Article 91(1).
3. The Council shall, on a proposal from the Commission and after consulting the European Parliament and the Economic and Social Committee, lay down rules for implementing the provisions of paragraph 1.
The Council may in particular lay down the provisions needed to enable the institutions of the Union to secure compliance with the rule laid down in paragraph 1 and to ensure that users benefit from it to the full.
4. The Commission shall, acting on its own initiative or on application by a Member State, investigate any cases of discrimination falling within paragraph 1 and, after consulting any Member State concerned, shall take the necessary decisions within the framework of the rules laid down in accordance with the provisions of paragraph 3.
***
In Article 2, point 72 of the Treaty of Lisbon (ToL) the intergovernmental conference (IGC 2007) laid out the specific amendments to Article 75 TEC (OJ 17.12.2007 C 306/68):
72) Article 75 shall be amended as follows:
(a) in paragraph 1, the words ‘shall be abolished’ shall be replaced by ‘shall be prohibited’;
(b) in paragraph 2, the words ‘the Council’ shall be replaced by ‘the European Parliament and
the Council’;
(c) in the first subparagraph of paragraph 3, the words ‘the Economic and Social Committee’
shall be replaced by ‘the European Parliament and the Economic and Social Committee’.
***
The TFEU table of equivalences tells us that Article 75 TEC first became Article 75 TFEU (ToL), but later renumbered Article 95 TFEU in the consolidated version (OJ 17.12.2007 C 306/210).
***
The current Article 75 of the Treaty establishing the European Community (TEC) is found under Title V ‘Transport’ in the latest consolidated version of the treaties in force (OJ 29.12.2006 C 321 E/71–72):
Article 75 TEC
1. In the case of transport within the Community, discrimination which takes the form of carriers charging different rates and imposing different conditions for the carriage of the same goods over the same transport links on grounds of the country of origin or of destination of the goods in question shall be abolished.
2. Paragraph 1 shall not prevent the Council from adopting other measures pursuant to Article 71(1).
3. The Council shall, acting by a qualified majority on a proposal from the Commission and after consulting the Economic and Social Committee, lay down rules for implementing the provisions of paragraph 1.
The Council may in particular lay down the provisions needed to enable the institutions of the Community to secure compliance with the rule laid down in paragraph 1 and to ensure that users benefit from it to the full.
4. The Commission shall, acting on its own initiative or on application by a Member State, investigate any cases of discrimination falling within paragraph 1 and, after consulting any Member State concerned, shall take the necessary decisions within the framework of the rules laid down in accordance with the provisions of paragraph 3.
***
We look at the previous stages of the treaty reform process. First, the European Convention.
According to Article III-138 of the draft Treaty establishing a Constitution for Europe, in addition to minor amendments, the cases of discrimination mentioned shall be ‘prohibited’ instead of ‘abolished’ as in the current Article 75 TEC (OJ 18.7.2003 C 169/54):
Article III-138 Draft Constitution
1. In the case of transport within the Union, discrimination which takes the form of carriers charging different rates and imposing different conditions for the carriage of the same goods over the same transport links on grounds of the Member State of origin or of destination of the goods in question shall be prohibited.
2. Paragraph 1 shall not prevent the adoption of other European laws or framework laws pursuant to the first paragraph of Article III-134.
3. The Council of Ministers, on a proposal from the Commission, shall adopt European regulations or decisions for implementing paragraph 1. It shall act after consulting the European Parliament and the Economic and Social Committee.
The Council of Ministers may in particular adopt the European regulations and decisions needed to enable the institutions to secure compliance with the rule laid down in paragraph 1 and to ensure that users benefit from it to the full.
4. The Commission, acting on its own initiative or on application by a Member State, shall investigate any cases of discrimination falling within paragraph 1 and, after consulting any Member State concerned, adopt the necessary European decisions within the framework of the European regulations and decisions referred to in paragraph 3.
***
Article III-240 of the Treaty establishing a Constitution for Europe adopted the text of the European Convention with only some terminological change (OJ 16.12.2004 C 310/106–107).
***
The current Article 75 TEC depends on implementing measures to abolish discrimination with regard to carriers charging different rates and imposing different conditions for the carriage of the same goods over the same transport links on grounds of the country of origin or of destination of the goods. As such, Article 75 TEC is not directly applicable.
The Treaty of Lisbon (TFEU) has taken over the prohibition concerning discriminatory transport practices, proposed by the European Convention. A prohibition can be applied directly, without the need for implementing rules.
On the other hand, given the general ban on ‘any discrimination on grounds of nationality’ in Article 18 TFEU (currently Article 12 TEC), what is the scope for the special prohibition in the area of transport policy and with regard to certain forms of discrimination?
***
We now check our preliminary conclusions against how others who have scrutinised the Lisbon Treaty have informed ratifying parliaments and the public.
United Kingdom
Professor Steve Peers covered the Treaty of Lisbon in a number of Statewatch Analyses. ‘EU Reform Treaty Analysis no. 3.3: Revised text of Part Three, Titles I to VI of the Treaty establishing the European Community (TEC): Internal Market and competition’ (Version 2, 23 October 2007) includes the current Title V Transport.
Peers highlighted the differences between the current Article 75 TEC, the Constitutional Treaty and the Lisbon Treaty, but found no need to comment on Article 75 TFEU (ToL), to be renumbered Article 95 TFEU in the consolidated version (page 21–22).
The analysis 3.3 and other useful Statewatch analyses are available through:
http://www.statewatch.org/euconstitution.htm
***
The Foreign and Commonwealth Office (FCO) offers a convenient source of brief annotations on Lisbon Treaty amendments in ‘A comparative table of the current EC and EU treaties as amended by the Treaty of Lisbon’ (Command Paper 7311, published 21 January 2008). The comment on Article 95 TFEU, Article 75 TFEU (ToL) in the original Lisbon Treaty, focuses of the requirement to consult the European Parliament (page 11):
“In substance the same as Article 75 TEC, with a new requirement to consult the EP.”
The FCO comparative table is available at:
http://www.official-documents.gov.uk/document/cm73/7311/7311.asp
***
The UK House of Commons Library Research Paper 07/86 ‘The Treaty of Lisbon: amendments to the Treaty establishing the European Community’ (published 6 December 2007) wrapped up Transport in a brief comment on page 56:
“F. Transport
Title V, Articles 70-80 (Constitution Articles III-236 – 245) are on transport and are based largely on Articles 70 – 75 TEC, but with a change in the voting procedure to the OLP with QMV, except for Article 72, which replaces unanimity in the Constitution Article III-237 with a “special legislative procedure”. Other, minor, changes are Article 75(c), which adds the EP to those bodies to be consulted, and Article 78 (Constitution Article III-243), allowing the Article concerning German unification to be repealed after 5 years.
Present Articles 154 – 156 on Trans-European Networks (TENS) have been moved to Title VII and contain only minor amendments.”
The Library Research Paper 07/86 is available at:
http://www.parliament.uk/commons/lib/research/rp2007/rp07-086.pdf
***
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) made no explicit reference to Article 95 TFEU.
The report is accessible at:
http://www.publications.parliament.uk/pa/ld200708/ldselect/ldeucom/62/62.pdf
***
Sweden
The consultation paper of the government of Sweden, ‘Lissabonfördraget; Statsrådsberedningen, Departementsserien (Ds), Ds 2007:48’ published 20 December 2007, bundled together transport and trans-European networks under the headline ‘Transporter och transeuropeiska nät’ (page 280 to 282).
The text offers an overview of the coming Title VI ‘Transport’. Without mentioning Article 75 TFEU (ToL), the future Article 95 TFEU, the consultation paper describes the current rules to abolish discrimination on page 281 and mentions the change that the European Parliament has to be consulted according to Article 75(3) TFEU (ToL):
“Beslutsförfarandet för att genomföra avskaffande av diskriminering vid transporter inom gemenskapen ändras på så sätt att Europaparlamentet ska höras innan rådet fattar beslut med kvalificerad majoritet (artikel 75.3 i EUF-fördraget).”
The consultation paper ’Lissabonfördraget’ is available at:
http://www.regeringen.se/content/1/c6/09/49/81/107aa077.pdf
***
Finland
The systematic 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), explains the amendments to Article 75 TFEU (ToL), renumbered Article 95 TFEU, although it does not draw any connclusions from the difference between measures to abolish discrimination and an outright prohibition (page 206):
”75 artiklaa (uusi 95 artikla), joka koskee syrjintää yhteisön sisäisessä liikenteessä tavaroiden alkuperä- tai määrämaan perusteella, muutetaan siten, että syrjinnän poistamisen sijasta käytetään ilmaisua ”Unionin sisäisessä liikenteessä on kiellettyä”.
SEUT 75 artikla vastaa pääosin perustuslakisopimuksen III-240 artiklaa. Perustuslakisopimuksen III-240 artiklan 1 kohdassa käytetään kuitenkin ilmaisun ”tavaroiden alkuperä- tai määrämaa” sijasta ilmaisua ”tavaroiden alkuperä- tai määräjäsenvaltio”. Sen lisäksi perustuslakisopimuksen III-240 artiklan 2 ja 3 kohdassa yksilöidään käytettävät säädösinstrumentit.”
The Finnish ratification 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 rd), offers the same explanation on pages 208–209:
”Artikel 75 (blivande artikel 95), som gäller diskriminering vid transporter inom gemenskapen på grund av godsets ursprungs- eller bestämmelseland, ändras så att man i stället för avskaffandet av diskriminering använder ”vid transporter inom unionen ska all sådan diskriminering vara förbjuden".
Artikel 75 i EUF-fördraget motsvarar i huvudsak artikel III-240 i det konstitutionella fördraget. I artikel III-240.1 i det konstitutionella fördraget används dock uttrycket "godsets ursprungs- eller bestämmelsemedlemsstat” i stället för ”godsets ursprungs- eller bestämmelseland". I artikel III-240.2 och III-240.3 i det konstitutionella fördraget specificeras de rättsaktsinstrument som ska användas.”
The ratification bill in Swedish can be accessed at:
http://www.finlex.fi/sv/esitykset/he/2008/20080023.pdf
***
The current Article 75 TEC does not, if I understand correctly, have direct effect, since it depends on implementing measures. But the new TFEU 95 prohibition on discrimination should be directly applicable as ‘lex specialis’. In a concrete case the provision’s scope for non-discrimination and direct effect requires study, with the general ban on discrimination based on nationality (18 TFEU, 12 TEC) as a guiding light for interpretation.
Should my reasoning be correct, I am surprised that my sources have paid so little attention to the proposed change.
Ralf Grahn
***
Article 95 of the Treaty on the Functioning of the European Union (TFEU) is found in the consolidated version of the Treaty on European Union and the Treaty on the Functioning of the European Union, published in the Official Journal of the European Union, OJ 9.5.2008 C 115/86:
Part Three ‘Policies and internal actions of the Union’
Title VI TFEU ‘Transport’
Article 95 TFEU
(ex Article 75 TEC)
1. In the case of transport within the Union, discrimination which takes the form of carriers charging different rates and imposing different conditions for the carriage of the same goods over the same transport links on grounds of the country of origin or of destination of the goods in question shall be prohibited.
2. Paragraph 1 shall not prevent the European Parliament and the Council from adopting other measures pursuant to Article 91(1).
3. The Council shall, on a proposal from the Commission and after consulting the European Parliament and the Economic and Social Committee, lay down rules for implementing the provisions of paragraph 1.
The Council may in particular lay down the provisions needed to enable the institutions of the Union to secure compliance with the rule laid down in paragraph 1 and to ensure that users benefit from it to the full.
4. The Commission shall, acting on its own initiative or on application by a Member State, investigate any cases of discrimination falling within paragraph 1 and, after consulting any Member State concerned, shall take the necessary decisions within the framework of the rules laid down in accordance with the provisions of paragraph 3.
***
In Article 2, point 72 of the Treaty of Lisbon (ToL) the intergovernmental conference (IGC 2007) laid out the specific amendments to Article 75 TEC (OJ 17.12.2007 C 306/68):
72) Article 75 shall be amended as follows:
(a) in paragraph 1, the words ‘shall be abolished’ shall be replaced by ‘shall be prohibited’;
(b) in paragraph 2, the words ‘the Council’ shall be replaced by ‘the European Parliament and
the Council’;
(c) in the first subparagraph of paragraph 3, the words ‘the Economic and Social Committee’
shall be replaced by ‘the European Parliament and the Economic and Social Committee’.
***
The TFEU table of equivalences tells us that Article 75 TEC first became Article 75 TFEU (ToL), but later renumbered Article 95 TFEU in the consolidated version (OJ 17.12.2007 C 306/210).
***
The current Article 75 of the Treaty establishing the European Community (TEC) is found under Title V ‘Transport’ in the latest consolidated version of the treaties in force (OJ 29.12.2006 C 321 E/71–72):
Article 75 TEC
1. In the case of transport within the Community, discrimination which takes the form of carriers charging different rates and imposing different conditions for the carriage of the same goods over the same transport links on grounds of the country of origin or of destination of the goods in question shall be abolished.
2. Paragraph 1 shall not prevent the Council from adopting other measures pursuant to Article 71(1).
3. The Council shall, acting by a qualified majority on a proposal from the Commission and after consulting the Economic and Social Committee, lay down rules for implementing the provisions of paragraph 1.
The Council may in particular lay down the provisions needed to enable the institutions of the Community to secure compliance with the rule laid down in paragraph 1 and to ensure that users benefit from it to the full.
4. The Commission shall, acting on its own initiative or on application by a Member State, investigate any cases of discrimination falling within paragraph 1 and, after consulting any Member State concerned, shall take the necessary decisions within the framework of the rules laid down in accordance with the provisions of paragraph 3.
***
We look at the previous stages of the treaty reform process. First, the European Convention.
According to Article III-138 of the draft Treaty establishing a Constitution for Europe, in addition to minor amendments, the cases of discrimination mentioned shall be ‘prohibited’ instead of ‘abolished’ as in the current Article 75 TEC (OJ 18.7.2003 C 169/54):
Article III-138 Draft Constitution
1. In the case of transport within the Union, discrimination which takes the form of carriers charging different rates and imposing different conditions for the carriage of the same goods over the same transport links on grounds of the Member State of origin or of destination of the goods in question shall be prohibited.
2. Paragraph 1 shall not prevent the adoption of other European laws or framework laws pursuant to the first paragraph of Article III-134.
3. The Council of Ministers, on a proposal from the Commission, shall adopt European regulations or decisions for implementing paragraph 1. It shall act after consulting the European Parliament and the Economic and Social Committee.
The Council of Ministers may in particular adopt the European regulations and decisions needed to enable the institutions to secure compliance with the rule laid down in paragraph 1 and to ensure that users benefit from it to the full.
4. The Commission, acting on its own initiative or on application by a Member State, shall investigate any cases of discrimination falling within paragraph 1 and, after consulting any Member State concerned, adopt the necessary European decisions within the framework of the European regulations and decisions referred to in paragraph 3.
***
Article III-240 of the Treaty establishing a Constitution for Europe adopted the text of the European Convention with only some terminological change (OJ 16.12.2004 C 310/106–107).
***
The current Article 75 TEC depends on implementing measures to abolish discrimination with regard to carriers charging different rates and imposing different conditions for the carriage of the same goods over the same transport links on grounds of the country of origin or of destination of the goods. As such, Article 75 TEC is not directly applicable.
The Treaty of Lisbon (TFEU) has taken over the prohibition concerning discriminatory transport practices, proposed by the European Convention. A prohibition can be applied directly, without the need for implementing rules.
On the other hand, given the general ban on ‘any discrimination on grounds of nationality’ in Article 18 TFEU (currently Article 12 TEC), what is the scope for the special prohibition in the area of transport policy and with regard to certain forms of discrimination?
***
We now check our preliminary conclusions against how others who have scrutinised the Lisbon Treaty have informed ratifying parliaments and the public.
United Kingdom
Professor Steve Peers covered the Treaty of Lisbon in a number of Statewatch Analyses. ‘EU Reform Treaty Analysis no. 3.3: Revised text of Part Three, Titles I to VI of the Treaty establishing the European Community (TEC): Internal Market and competition’ (Version 2, 23 October 2007) includes the current Title V Transport.
Peers highlighted the differences between the current Article 75 TEC, the Constitutional Treaty and the Lisbon Treaty, but found no need to comment on Article 75 TFEU (ToL), to be renumbered Article 95 TFEU in the consolidated version (page 21–22).
The analysis 3.3 and other useful Statewatch analyses are available through:
http://www.statewatch.org/euconstitution.htm
***
The Foreign and Commonwealth Office (FCO) offers a convenient source of brief annotations on Lisbon Treaty amendments in ‘A comparative table of the current EC and EU treaties as amended by the Treaty of Lisbon’ (Command Paper 7311, published 21 January 2008). The comment on Article 95 TFEU, Article 75 TFEU (ToL) in the original Lisbon Treaty, focuses of the requirement to consult the European Parliament (page 11):
“In substance the same as Article 75 TEC, with a new requirement to consult the EP.”
The FCO comparative table is available at:
http://www.official-documents.gov.uk/document/cm73/7311/7311.asp
***
The UK House of Commons Library Research Paper 07/86 ‘The Treaty of Lisbon: amendments to the Treaty establishing the European Community’ (published 6 December 2007) wrapped up Transport in a brief comment on page 56:
“F. Transport
Title V, Articles 70-80 (Constitution Articles III-236 – 245) are on transport and are based largely on Articles 70 – 75 TEC, but with a change in the voting procedure to the OLP with QMV, except for Article 72, which replaces unanimity in the Constitution Article III-237 with a “special legislative procedure”. Other, minor, changes are Article 75(c), which adds the EP to those bodies to be consulted, and Article 78 (Constitution Article III-243), allowing the Article concerning German unification to be repealed after 5 years.
Present Articles 154 – 156 on Trans-European Networks (TENS) have been moved to Title VII and contain only minor amendments.”
The Library Research Paper 07/86 is available at:
http://www.parliament.uk/commons/lib/research/rp2007/rp07-086.pdf
***
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) made no explicit reference to Article 95 TFEU.
The report is accessible at:
http://www.publications.parliament.uk/pa/ld200708/ldselect/ldeucom/62/62.pdf
***
Sweden
The consultation paper of the government of Sweden, ‘Lissabonfördraget; Statsrådsberedningen, Departementsserien (Ds), Ds 2007:48’ published 20 December 2007, bundled together transport and trans-European networks under the headline ‘Transporter och transeuropeiska nät’ (page 280 to 282).
The text offers an overview of the coming Title VI ‘Transport’. Without mentioning Article 75 TFEU (ToL), the future Article 95 TFEU, the consultation paper describes the current rules to abolish discrimination on page 281 and mentions the change that the European Parliament has to be consulted according to Article 75(3) TFEU (ToL):
“Beslutsförfarandet för att genomföra avskaffande av diskriminering vid transporter inom gemenskapen ändras på så sätt att Europaparlamentet ska höras innan rådet fattar beslut med kvalificerad majoritet (artikel 75.3 i EUF-fördraget).”
The consultation paper ’Lissabonfördraget’ is available at:
http://www.regeringen.se/content/1/c6/09/49/81/107aa077.pdf
***
Finland
The systematic 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), explains the amendments to Article 75 TFEU (ToL), renumbered Article 95 TFEU, although it does not draw any connclusions from the difference between measures to abolish discrimination and an outright prohibition (page 206):
”75 artiklaa (uusi 95 artikla), joka koskee syrjintää yhteisön sisäisessä liikenteessä tavaroiden alkuperä- tai määrämaan perusteella, muutetaan siten, että syrjinnän poistamisen sijasta käytetään ilmaisua ”Unionin sisäisessä liikenteessä on kiellettyä”.
SEUT 75 artikla vastaa pääosin perustuslakisopimuksen III-240 artiklaa. Perustuslakisopimuksen III-240 artiklan 1 kohdassa käytetään kuitenkin ilmaisun ”tavaroiden alkuperä- tai määrämaa” sijasta ilmaisua ”tavaroiden alkuperä- tai määräjäsenvaltio”. Sen lisäksi perustuslakisopimuksen III-240 artiklan 2 ja 3 kohdassa yksilöidään käytettävät säädösinstrumentit.”
The Finnish ratification 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 rd), offers the same explanation on pages 208–209:
”Artikel 75 (blivande artikel 95), som gäller diskriminering vid transporter inom gemenskapen på grund av godsets ursprungs- eller bestämmelseland, ändras så att man i stället för avskaffandet av diskriminering använder ”vid transporter inom unionen ska all sådan diskriminering vara förbjuden".
Artikel 75 i EUF-fördraget motsvarar i huvudsak artikel III-240 i det konstitutionella fördraget. I artikel III-240.1 i det konstitutionella fördraget används dock uttrycket "godsets ursprungs- eller bestämmelsemedlemsstat” i stället för ”godsets ursprungs- eller bestämmelseland". I artikel III-240.2 och III-240.3 i det konstitutionella fördraget specificeras de rättsaktsinstrument som ska användas.”
The ratification bill in Swedish can be accessed at:
http://www.finlex.fi/sv/esitykset/he/2008/20080023.pdf
***
The current Article 75 TEC does not, if I understand correctly, have direct effect, since it depends on implementing measures. But the new TFEU 95 prohibition on discrimination should be directly applicable as ‘lex specialis’. In a concrete case the provision’s scope for non-discrimination and direct effect requires study, with the general ban on discrimination based on nationality (18 TFEU, 12 TEC) as a guiding light for interpretation.
Should my reasoning be correct, I am surprised that my sources have paid so little attention to the proposed change.
Ralf Grahn
Monday, 19 May 2008
EU TFEU: Economic circumstances of carriers
The impact of the EU Treaty of Lisbon is a hotly debated issue. Especially if we follow the bulk of the provisions, namely the current Treaty establishing the European Community (TEC), renamed the Treaty on the Functioning of the European Union (TFEU), we realise how little attention has been paid to the internal policy areas, with police and judicial cooperation in criminal matters the main exception (where most, but not all, member states want to achieve progress).
The main thrust of the Lisbon Treaty changes is institutional, not even adding significant areas of competence to the EU, but improving the procedures for making decisions by restricting the scope of debilitating national vetoes. At the same time, transparency and parliamentary scrutiny are improved.
The Transport Title is one example of internal policy areas with almost imperceptible change.
Now and in the future, the EU has to take account of the economic circumstances of carriers, when transport rates and conditions are decided.
***
Article 94 of the Treaty on the Functioning of the European Union (TFEU) is found in the consolidated version of the Treaty on European Union and the Treaty on the Functioning of the European Union, published in the Official Journal of the European Union, OJ 9.5.2008 C 115/86:
Part Three ‘Policies and internal actions of the Union’
Title VI TFEU ‘Transport’
Article 94 TFEU
(ex Article 74 TEC)
Any measures taken within the framework of the Treaties in respect of transport rates and conditions shall take account of the economic circumstances of carriers.
***
In Article 2, point 71 of the Treaty of Lisbon (ToL) the intergovernmental conference (IGC 2007) mentioned Article 72 TEC and in point 72 it laid out the amendments to Article 75 TEC. Thus, there are no specific amendments to Article 74 TEC (OJ 17.12.2007 C 306/68).
The TFEU table of equivalences tells us that Article 74 TEC first became Article 74 TFEU (ToL), but later renumbered Article 94 TFEU in the consolidated version (OJ 17.12.2007 C 306/210).
***
Article 74 of the Treaty establishing the European Community (TEC) is found under Title V ‘Transport’ in the latest consolidated version of the current treaties (OJ 29.12.2006 C 321 E/71):
Article 74 TEC
Any measures taken within the framework of this Treaty in respect of transport rates and conditions shall take account of the economic circumstances of carriers.
***
We can see one horizontal amendment, between the current TEC and the TFEU, when ‘this Treaty’ has been replaced by ‘the Treaties’ in accordance with Article 2, point 2(b), of the Treaty of Lisbon.
***
Article III-137 of the draft Treaty establishing a Constitution for Europe made no attempt to change the substance of the current Article 74 TEC (OJ 18.7.2003 C 169/54):
Article III-137 Draft Constitution
Any measures adopted within the framework of the Constitution in respect of transport rates and conditions shall take account of the economic circumstances of carriers.
***
Article III-239 of the Treaty establishing a Constitution for Europe adopted the text of the European Convention without change (OJ 16.12.2004 C 310/106).
***
In other words, the only changes proposed during the different stages since the Treaty of Nice have been technical adjustments.
***
We now check our modest conclusions against how others who have scrutinised the Lisbon Treaty have informed ratifying parliaments and the public.
United Kingdom
Professor Steve Peers covered the Treaty of Lisbon in a number of Statewatch Analyses. ‘EU Reform Treaty Analysis no. 3.3: Revised text of Part Three, Titles I to VI of the Treaty establishing the European Community (TEC): Internal Market and competition’ (Version 2, 23 October 2007) includes the current Title V Transport.
Peers highlighted the differences between the current Article 74 TEC, the Constitutional Treaty and the Lisbon Treaty, but found no need to comment on Article 74 TFEU (ToL), to be renumbered Article 94 TFEU in the consolidated version (page 21).
The analysis 3.3 and other useful Statewatch analyses are available through:
http://www.statewatch.org/euconstitution.htm
***
The Foreign and Commonwealth Office (FCO) offers a convenient source of brief annotations on Lisbon Treaty amendments in ‘A comparative table of the current EC and EU treaties as amended by the Treaty of Lisbon’ (Command Paper 7311, published 21 January 2008). The comment on Article 94 TFEU, Article 74 TFEU (ToL) in the original Lisbon Treaty, is short and to the point (page 11):
“In substance the same as Article 74 TEC.”
The FCO comparative table is available at:
http://www.official-documents.gov.uk/document/cm73/7311/7311.asp
***
The UK House of Commons Library Research Paper 07/86 ‘The Treaty of Lisbon: amendments to the Treaty establishing the European Community’ (published 6 December 2007) wrapped up Transport in a brief comment on page 56:
“F. Transport
Title V, Articles 70-80 (Constitution Articles III-236 – 245) are on transport and are based largely on Articles 70 – 75 TEC, but with a change in the voting procedure to the OLP with QMV, except for Article 72, which replaces unanimity in the Constitution Article III-237 with a “special legislative procedure”. Other, minor, changes are Article 75(c), which adds the EP to those bodies to be consulted, and Article 78 (Constitution Article III-243), allowing the Article concerning German unification to be repealed after 5 years.
Present Articles 154 – 156 on Trans-European Networks (TENS) have been moved to Title VII and contain only minor amendments.”
The Library Research Paper 07/86 is available at:
http://www.parliament.uk/commons/lib/research/rp2007/rp07-086.pdf
***
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) made no explicit reference to Article 94 TFEU.
The report is accessible at:
http://www.publications.parliament.uk/pa/ld200708/ldselect/ldeucom/62/62.pdf
***
Sweden
The consultation paper of the government of Sweden, ‘Lissabonfördraget; Statsrådsberedningen, Departementsserien (Ds), Ds 2007:48’ published 20 December 2007, bundled together transport and trans-European networks under the headline ‘Transporter och transeuropeiska nät’ (page 280 to 282).
The text offers an overview of the coming Title VI ‘Transport’ and mentions the fairly small amendments, but understandably has nothing specific to say about Article 74 TFEU (ToL), the future Article 94 TFEU.
The consultation paper ’Lissabonfördraget’ is available at:
http://www.regeringen.se/content/1/c6/09/49/81/107aa077.pdf
***
Finland
Even the methodical 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), dutifully gives a brief explanation of Articles 73 and 74 TFEU (ToL), renumbered Articles 93 and 94 TFEU (page 206).
The Finnish ratification 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 rd), offers the same brief explanation on page 208.
The ratification bill in Swedish can be accessed at:
http://www.finlex.fi/sv/esitykset/he/2008/20080023.pdf
***
From the angle of treaty change – the objective of this posting – Article 94 TFEU can be described in the same words as the previous provision, the subject of yesterday’s post: about as exciting as watching paint dry.
In its own way, Article 94 TFEU echoes the words of Article 91(1) TFEU about ‘taking into account the distinctive features of transport’ when implementing the common transport policy.
Nowadays, transport rates are more often set by the markets than by governments, so this part of Article 94 TFEU is less significant than formerly. Transport conditions, on the other hand, encompass a number of factors to be taken into account when measures are proposed.
Ralf Grahn
The main thrust of the Lisbon Treaty changes is institutional, not even adding significant areas of competence to the EU, but improving the procedures for making decisions by restricting the scope of debilitating national vetoes. At the same time, transparency and parliamentary scrutiny are improved.
The Transport Title is one example of internal policy areas with almost imperceptible change.
Now and in the future, the EU has to take account of the economic circumstances of carriers, when transport rates and conditions are decided.
***
Article 94 of the Treaty on the Functioning of the European Union (TFEU) is found in the consolidated version of the Treaty on European Union and the Treaty on the Functioning of the European Union, published in the Official Journal of the European Union, OJ 9.5.2008 C 115/86:
Part Three ‘Policies and internal actions of the Union’
Title VI TFEU ‘Transport’
Article 94 TFEU
(ex Article 74 TEC)
Any measures taken within the framework of the Treaties in respect of transport rates and conditions shall take account of the economic circumstances of carriers.
***
In Article 2, point 71 of the Treaty of Lisbon (ToL) the intergovernmental conference (IGC 2007) mentioned Article 72 TEC and in point 72 it laid out the amendments to Article 75 TEC. Thus, there are no specific amendments to Article 74 TEC (OJ 17.12.2007 C 306/68).
The TFEU table of equivalences tells us that Article 74 TEC first became Article 74 TFEU (ToL), but later renumbered Article 94 TFEU in the consolidated version (OJ 17.12.2007 C 306/210).
***
Article 74 of the Treaty establishing the European Community (TEC) is found under Title V ‘Transport’ in the latest consolidated version of the current treaties (OJ 29.12.2006 C 321 E/71):
Article 74 TEC
Any measures taken within the framework of this Treaty in respect of transport rates and conditions shall take account of the economic circumstances of carriers.
***
We can see one horizontal amendment, between the current TEC and the TFEU, when ‘this Treaty’ has been replaced by ‘the Treaties’ in accordance with Article 2, point 2(b), of the Treaty of Lisbon.
***
Article III-137 of the draft Treaty establishing a Constitution for Europe made no attempt to change the substance of the current Article 74 TEC (OJ 18.7.2003 C 169/54):
Article III-137 Draft Constitution
Any measures adopted within the framework of the Constitution in respect of transport rates and conditions shall take account of the economic circumstances of carriers.
***
Article III-239 of the Treaty establishing a Constitution for Europe adopted the text of the European Convention without change (OJ 16.12.2004 C 310/106).
***
In other words, the only changes proposed during the different stages since the Treaty of Nice have been technical adjustments.
***
We now check our modest conclusions against how others who have scrutinised the Lisbon Treaty have informed ratifying parliaments and the public.
United Kingdom
Professor Steve Peers covered the Treaty of Lisbon in a number of Statewatch Analyses. ‘EU Reform Treaty Analysis no. 3.3: Revised text of Part Three, Titles I to VI of the Treaty establishing the European Community (TEC): Internal Market and competition’ (Version 2, 23 October 2007) includes the current Title V Transport.
Peers highlighted the differences between the current Article 74 TEC, the Constitutional Treaty and the Lisbon Treaty, but found no need to comment on Article 74 TFEU (ToL), to be renumbered Article 94 TFEU in the consolidated version (page 21).
The analysis 3.3 and other useful Statewatch analyses are available through:
http://www.statewatch.org/euconstitution.htm
***
The Foreign and Commonwealth Office (FCO) offers a convenient source of brief annotations on Lisbon Treaty amendments in ‘A comparative table of the current EC and EU treaties as amended by the Treaty of Lisbon’ (Command Paper 7311, published 21 January 2008). The comment on Article 94 TFEU, Article 74 TFEU (ToL) in the original Lisbon Treaty, is short and to the point (page 11):
“In substance the same as Article 74 TEC.”
The FCO comparative table is available at:
http://www.official-documents.gov.uk/document/cm73/7311/7311.asp
***
The UK House of Commons Library Research Paper 07/86 ‘The Treaty of Lisbon: amendments to the Treaty establishing the European Community’ (published 6 December 2007) wrapped up Transport in a brief comment on page 56:
“F. Transport
Title V, Articles 70-80 (Constitution Articles III-236 – 245) are on transport and are based largely on Articles 70 – 75 TEC, but with a change in the voting procedure to the OLP with QMV, except for Article 72, which replaces unanimity in the Constitution Article III-237 with a “special legislative procedure”. Other, minor, changes are Article 75(c), which adds the EP to those bodies to be consulted, and Article 78 (Constitution Article III-243), allowing the Article concerning German unification to be repealed after 5 years.
Present Articles 154 – 156 on Trans-European Networks (TENS) have been moved to Title VII and contain only minor amendments.”
The Library Research Paper 07/86 is available at:
http://www.parliament.uk/commons/lib/research/rp2007/rp07-086.pdf
***
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) made no explicit reference to Article 94 TFEU.
The report is accessible at:
http://www.publications.parliament.uk/pa/ld200708/ldselect/ldeucom/62/62.pdf
***
Sweden
The consultation paper of the government of Sweden, ‘Lissabonfördraget; Statsrådsberedningen, Departementsserien (Ds), Ds 2007:48’ published 20 December 2007, bundled together transport and trans-European networks under the headline ‘Transporter och transeuropeiska nät’ (page 280 to 282).
The text offers an overview of the coming Title VI ‘Transport’ and mentions the fairly small amendments, but understandably has nothing specific to say about Article 74 TFEU (ToL), the future Article 94 TFEU.
The consultation paper ’Lissabonfördraget’ is available at:
http://www.regeringen.se/content/1/c6/09/49/81/107aa077.pdf
***
Finland
Even the methodical 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), dutifully gives a brief explanation of Articles 73 and 74 TFEU (ToL), renumbered Articles 93 and 94 TFEU (page 206).
The Finnish ratification 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 rd), offers the same brief explanation on page 208.
The ratification bill in Swedish can be accessed at:
http://www.finlex.fi/sv/esitykset/he/2008/20080023.pdf
***
From the angle of treaty change – the objective of this posting – Article 94 TFEU can be described in the same words as the previous provision, the subject of yesterday’s post: about as exciting as watching paint dry.
In its own way, Article 94 TFEU echoes the words of Article 91(1) TFEU about ‘taking into account the distinctive features of transport’ when implementing the common transport policy.
Nowadays, transport rates are more often set by the markets than by governments, so this part of Article 94 TFEU is less significant than formerly. Transport conditions, on the other hand, encompass a number of factors to be taken into account when measures are proposed.
Ralf Grahn
Sunday, 18 May 2008
Le traité de Lisbonne en 27 clés
Étienne de Poncins has done much to offer EU citizens information about the treaty reform process. « Vers une Constitution Européenne » was based on his work in the secretariat of the European Convention, and « La Constitution européenne en 25 clefs » explained the main points of the Constitutional Treaty.
« Le traité de Lisbonne en 27 clés » turns to the Treaty of Lisbon.
One fifth of the book presents the rocky road of EU treaty reform. De Poncins dedicates four fifths of the book text to thematic presentations of the main institutional arrangements the Treaty of Lisbon tries to address.
De Poncins describes the need for reform, follows the different reform stages (the European Convention, the IGC’s 2004 and 2007) and then offers a picture of the changes brought about by the Lisbon Treaty.
The author’s style is clear, concise and readable without being superficial, so the book can be recommended for interested citizens and students of EU affairs. De Poncins, who has substantial experience of French EU policies and currently represents his country as ambassador to Bulgaria, adds the benefit of French (and personal) viewpoints on the matters discussed.
His views come across loud and clear, without pussyfooting. On the eve of the French Council presidency and the preparation of the needed Lisbon implementing decisions, his comments are useful for all who follow the Council negotiations from the outside.
***
Étienne de Poncins: Le traité de Lisbonne en 27 clés (Éditions Lignes de Repères, 2008 ; 261 pages ; 18,50 €)
Ralf Grahn
« Le traité de Lisbonne en 27 clés » turns to the Treaty of Lisbon.
One fifth of the book presents the rocky road of EU treaty reform. De Poncins dedicates four fifths of the book text to thematic presentations of the main institutional arrangements the Treaty of Lisbon tries to address.
De Poncins describes the need for reform, follows the different reform stages (the European Convention, the IGC’s 2004 and 2007) and then offers a picture of the changes brought about by the Lisbon Treaty.
The author’s style is clear, concise and readable without being superficial, so the book can be recommended for interested citizens and students of EU affairs. De Poncins, who has substantial experience of French EU policies and currently represents his country as ambassador to Bulgaria, adds the benefit of French (and personal) viewpoints on the matters discussed.
His views come across loud and clear, without pussyfooting. On the eve of the French Council presidency and the preparation of the needed Lisbon implementing decisions, his comments are useful for all who follow the Council negotiations from the outside.
***
Étienne de Poncins: Le traité de Lisbonne en 27 clés (Éditions Lignes de Repères, 2008 ; 261 pages ; 18,50 €)
Ralf Grahn
EU TFEU: Aids for public transport
Public funding for transport services remains allowed under the EU Treaty of Lisbon, as it currently is according to the Treaty establishing the European Community (TEC).
***
Article 93 of the Treaty on the Functioning of the European Union (TFEU) is found in the consolidated version of the Treaty on European Union and the Treaty on the Functioning of the European Union, published in the Official Journal of the European Union, OJ 9.5.2008 C 115/86:
Part Three ‘Policies and internal actions of the Union’
Title VI TFEU ‘Transport’
Article 93 TFEU
(ex Article 73 TEC)
Aids shall be compatible with the Treaties if they meet the needs of coordination of transport or if they represent reimbursement for the discharge of certain obligations inherent in the concept of a public service.
***
In Article 2, point 71 of the Treaty of Lisbon (ToL) the intergovernmental conference (IGC 2007) mentioned Article 72 TEC and in point 72 it laid out the amendments to Article 75 TEC. Thus, there are no specific amendments to Article 73 TEC (OJ 17.12.2007 C 306/68).
The TFEU table of equivalences tells us that Article 73 TEC first became Article 73 TFEU (ToL), but later renumbered Article 93 TFEU in the consolidated version (OJ 17.12.2007 C 306/210).
***
Article 73 of the Treaty establishing the European Community (TEC) is found under Title V ‘Transport’ in the latest consolidated version of the current treaties (OJ 29.12.2006 C 321 E/71):
Article 73 TFEU
Aids shall be compatible with this Treaty if they meet the needs of coordination of transport or if they represent reimbursement for the discharge of certain obligations inherent in the concept of a public service.
***
We can see one horizontal amendment, when ‘this Treaty’ has been replaced by ‘the Treaties’ in accordance with Article 2, point 2(b), of the Treaty of Lisbon.
***
Article III-136 of the draft Treaty establishing a Constitution for Europe referred to compatibility with the Constitution, but took over the rest of the text of the current Article 73 TEC (OJ 18.7.2003 C 169/54).
***
Article III-238 of the Treaty establishing a Constitution for Europe adopted the text of the European Convention without change (OJ 16.12.2004 C 310/106).
***
In other words, the only changes proposed during the different stages have been technical adjustments.
***
We now check our modest conclusions against how others who have scrutinised the Lisbon Treaty have informed ratifying parliaments and the public.
United Kingdom
Professor Steve Peers covered the Treaty of Lisbon in a number of Statewatch Analyses. ‘EU Reform Treaty Analysis no. 3.3: Revised text of Part Three, Titles I to VI of the Treaty establishing the European Community (TEC): Internal Market and competition’ (Version 2, 23 October 2007) includes the current Title V Transport.
Peers highlighted the differences between the current Article 73 TEC, the Constitutional Treaty and the Lisbon Treaty, but found no need to comment on Article 73 TFEU (ToL), to be renumbered Article 93 TFEU in the consolidated version (page 21).
The analysis 3.3 and other useful Statewatch analyses are available through:
http://www.statewatch.org/euconstitution.htm
***
The Foreign and Commonwealth Office (FCO) offers a convenient source of brief annotations on Lisbon Treaty amendments in ‘A comparative table of the current EC and EU treaties as amended by the Treaty of Lisbon’ (Command Paper 7311, published 21 January 2008). The comment on Article 93 TFEU, Article 73 TFEU (ToL) in the original Lisbon Treaty, is short and to the point (page 11):
“In substance the same as Article 73 TEC.”
The FCO comparative table is available at:
http://www.official-documents.gov.uk/document/cm73/7311/7311.asp
***
The UK House of Commons Library Research Paper 07/86 ‘The Treaty of Lisbon: amendments to the Treaty establishing the European Community’ (published 6 December 2007) wrapped up Transport in a brief comment on page 56:
“F. Transport
Title V, Articles 70-80 (Constitution Articles III-236 – 245) are on transport and are based largely on Articles 70 – 75 TEC, but with a change in the voting procedure to the OLP with QMV, except for Article 72, which replaces unanimity in the Constitution Article III-237 with a “special legislative procedure”. Other, minor, changes are Article 75(c), which adds the EP to those bodies to be consulted, and Article 78 (Constitution Article III-243), allowing the Article concerning German unification to be repealed after 5 years.
Present Articles 154 – 156 on Trans-European Networks (TENS) have been moved to Title VII and contain only minor amendments.”
The Library Research Paper 07/86 is available at:
http://www.parliament.uk/commons/lib/research/rp2007/rp07-086.pdf
***
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) may not have found a substantially unchanged provision like Article 93 TFEU worthy of special mention, but for the reader who wants to understand the framework, the Committee’s discussion about ‘Services of General Interest’ from page 221 to page 222 may be helpful.
The report is accessible at:
http://www.publications.parliament.uk/pa/ld200708/ldselect/ldeucom/62/62.pdf
***
Sweden
The consultation paper of the government of Sweden, ‘Lissabonfördraget; Statsrådsberedningen, Departementsserien (Ds), Ds 2007:48’ published 20 December 2007, bundled together transport and trans-European networks under the headline ‘Transporter och transeuropeiska nät’ (page 280 to 282).
The text offers an overview of the coming Title VI ‘Transport’ and mentions the fairly small amendments, but understandably has nothing specific to say about Article 73 TFEU (ToL), the future Article 93 TFEU.
The consultation paper ’Lissabonfördraget’ is available at:
http://www.regeringen.se/content/1/c6/09/49/81/107aa077.pdf
***
Finland
Even the methodical 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), is content to give only a brief explanation of Articles 73 and 74 TFEU (ToL), renumbered Articles 93 and 94 TFEU (page 206).
The Finnish ratification 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 rd), offers the same brief explanation on page 208.
The ratification bill in Swedish can be accessed at:
http://www.finlex.fi/sv/esitykset/he/2008/20080023.pdf
***
From the angle of treaty change – the objective of this posting – Article 93 TFEU is about as exciting as watching paint dry.
But, in real life fundamental EU principles and great economic interests are at stake: general rules on competition and state aid (including regional and local governments), as well as services of general economic interest, form the background for adaptations to the transport sector.
Ralf Grahn
***
Article 93 of the Treaty on the Functioning of the European Union (TFEU) is found in the consolidated version of the Treaty on European Union and the Treaty on the Functioning of the European Union, published in the Official Journal of the European Union, OJ 9.5.2008 C 115/86:
Part Three ‘Policies and internal actions of the Union’
Title VI TFEU ‘Transport’
Article 93 TFEU
(ex Article 73 TEC)
Aids shall be compatible with the Treaties if they meet the needs of coordination of transport or if they represent reimbursement for the discharge of certain obligations inherent in the concept of a public service.
***
In Article 2, point 71 of the Treaty of Lisbon (ToL) the intergovernmental conference (IGC 2007) mentioned Article 72 TEC and in point 72 it laid out the amendments to Article 75 TEC. Thus, there are no specific amendments to Article 73 TEC (OJ 17.12.2007 C 306/68).
The TFEU table of equivalences tells us that Article 73 TEC first became Article 73 TFEU (ToL), but later renumbered Article 93 TFEU in the consolidated version (OJ 17.12.2007 C 306/210).
***
Article 73 of the Treaty establishing the European Community (TEC) is found under Title V ‘Transport’ in the latest consolidated version of the current treaties (OJ 29.12.2006 C 321 E/71):
Article 73 TFEU
Aids shall be compatible with this Treaty if they meet the needs of coordination of transport or if they represent reimbursement for the discharge of certain obligations inherent in the concept of a public service.
***
We can see one horizontal amendment, when ‘this Treaty’ has been replaced by ‘the Treaties’ in accordance with Article 2, point 2(b), of the Treaty of Lisbon.
***
Article III-136 of the draft Treaty establishing a Constitution for Europe referred to compatibility with the Constitution, but took over the rest of the text of the current Article 73 TEC (OJ 18.7.2003 C 169/54).
***
Article III-238 of the Treaty establishing a Constitution for Europe adopted the text of the European Convention without change (OJ 16.12.2004 C 310/106).
***
In other words, the only changes proposed during the different stages have been technical adjustments.
***
We now check our modest conclusions against how others who have scrutinised the Lisbon Treaty have informed ratifying parliaments and the public.
United Kingdom
Professor Steve Peers covered the Treaty of Lisbon in a number of Statewatch Analyses. ‘EU Reform Treaty Analysis no. 3.3: Revised text of Part Three, Titles I to VI of the Treaty establishing the European Community (TEC): Internal Market and competition’ (Version 2, 23 October 2007) includes the current Title V Transport.
Peers highlighted the differences between the current Article 73 TEC, the Constitutional Treaty and the Lisbon Treaty, but found no need to comment on Article 73 TFEU (ToL), to be renumbered Article 93 TFEU in the consolidated version (page 21).
The analysis 3.3 and other useful Statewatch analyses are available through:
http://www.statewatch.org/euconstitution.htm
***
The Foreign and Commonwealth Office (FCO) offers a convenient source of brief annotations on Lisbon Treaty amendments in ‘A comparative table of the current EC and EU treaties as amended by the Treaty of Lisbon’ (Command Paper 7311, published 21 January 2008). The comment on Article 93 TFEU, Article 73 TFEU (ToL) in the original Lisbon Treaty, is short and to the point (page 11):
“In substance the same as Article 73 TEC.”
The FCO comparative table is available at:
http://www.official-documents.gov.uk/document/cm73/7311/7311.asp
***
The UK House of Commons Library Research Paper 07/86 ‘The Treaty of Lisbon: amendments to the Treaty establishing the European Community’ (published 6 December 2007) wrapped up Transport in a brief comment on page 56:
“F. Transport
Title V, Articles 70-80 (Constitution Articles III-236 – 245) are on transport and are based largely on Articles 70 – 75 TEC, but with a change in the voting procedure to the OLP with QMV, except for Article 72, which replaces unanimity in the Constitution Article III-237 with a “special legislative procedure”. Other, minor, changes are Article 75(c), which adds the EP to those bodies to be consulted, and Article 78 (Constitution Article III-243), allowing the Article concerning German unification to be repealed after 5 years.
Present Articles 154 – 156 on Trans-European Networks (TENS) have been moved to Title VII and contain only minor amendments.”
The Library Research Paper 07/86 is available at:
http://www.parliament.uk/commons/lib/research/rp2007/rp07-086.pdf
***
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) may not have found a substantially unchanged provision like Article 93 TFEU worthy of special mention, but for the reader who wants to understand the framework, the Committee’s discussion about ‘Services of General Interest’ from page 221 to page 222 may be helpful.
The report is accessible at:
http://www.publications.parliament.uk/pa/ld200708/ldselect/ldeucom/62/62.pdf
***
Sweden
The consultation paper of the government of Sweden, ‘Lissabonfördraget; Statsrådsberedningen, Departementsserien (Ds), Ds 2007:48’ published 20 December 2007, bundled together transport and trans-European networks under the headline ‘Transporter och transeuropeiska nät’ (page 280 to 282).
The text offers an overview of the coming Title VI ‘Transport’ and mentions the fairly small amendments, but understandably has nothing specific to say about Article 73 TFEU (ToL), the future Article 93 TFEU.
The consultation paper ’Lissabonfördraget’ is available at:
http://www.regeringen.se/content/1/c6/09/49/81/107aa077.pdf
***
Finland
Even the methodical 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), is content to give only a brief explanation of Articles 73 and 74 TFEU (ToL), renumbered Articles 93 and 94 TFEU (page 206).
The Finnish ratification 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 rd), offers the same brief explanation on page 208.
The ratification bill in Swedish can be accessed at:
http://www.finlex.fi/sv/esitykset/he/2008/20080023.pdf
***
From the angle of treaty change – the objective of this posting – Article 93 TFEU is about as exciting as watching paint dry.
But, in real life fundamental EU principles and great economic interests are at stake: general rules on competition and state aid (including regional and local governments), as well as services of general economic interest, form the background for adaptations to the transport sector.
Ralf Grahn
Friday, 16 May 2008
EU TFEU: Transport standstill clause and derogation
According to the Treaty of Lisbon, the member states can legislate in areas of shared competence if the European Union has not legislated or if it has decided to cease exercising its competence. But already the Treaty establishing the European Economic Community included a special standstill clause to prevent national legislation against the aims of the common transport policy, before Community acts were in place. The same principle applies to countries which accede later.
Article 92 of the Treaty on the Functioning of the European Union offers a (slim) chance of derogations (exceptions) to the rule.
***
Article 92 of the Treaty on the Functioning of the European Union (TFEU) is found in the consolidated version of the Treaty on European Union and the Treaty on the Functioning of the European Union, published in the Official Journal of the European Union, OJ 9.5.2008 C 115/85:
Part Three ‘Policies and internal actions of the Union’
Title VI TFEU ‘Transport’
Article 92 TFEU
(ex Article 72 TEC)
Until the provisions referred to in Article 91(1) have been laid down, no Member State may, unless the Council has unanimously adopted a measure granting a derogation, make the various provisions governing the subject on 1 January 1958 or, for acceding States, the date of their accession less favourable in their direct or indirect effect on carriers of other Member States as compared with carriers who are nationals of that State.
***
In Article 2, point 71 of the Treaty of Lisbon (ToL) the intergovernmental conference (IGC 2007) stated (OJ 17.12.2007 C 306/68):
71) At the beginning of Article 72, the words ‘, without the unanimous approval of the Council,’ shall be replaced by ‘, unless the Council has unanimously adopted a measure granting a derogation,’.
***
The provision to be amended, Article 72 of the Treaty establishing the European Community (TEC) is found under Title V ‘Transport’ in the latest consolidated version of the current treaties (OJ 29.12.2006 C 321 E/71):
Article 72 TEC
Until the provisions referred to in Article 71(1) have been laid down, no Member State may, without the unanimous approval of the Council, make the various provisions governing the subject on 1 January 1958 or, for acceding States, the date of their accession less favourable in their direct or indirect effect on carriers of other Member States as compared with carriers who are nationals of that State.
***
Article III-135 of the draft Treaty establishing a Constitution for Europe substantially took over the text of the current Article 72 TEC, but a small mistake remained in the text of the European Convention. Because the draft Constitution deleted the second paragraph of the preceding provision, there was no need to make a reference to the first and only paragraph of Article III-134 (OJ 18.7.2003 C 169/54):
Article III-135 Draft Constitution
Until the European laws or framework laws referred to in the first paragraph of Article III-134 have been adopted, no Member State may, unless the Council of Ministers has unanimously adopted a European decision granting a derogation, make the various provisions governing the subject on 1 January 1958 or, for acceding States, the date of their accession less favourable in their direct or indirect effect on carriers of other Member States as compared with carriers who are nationals of that State.
***
The IGC 2004 had merged the European Convention’s Article III-133 on the common transport policy (paragraph 1) and Article III-134 on legislation (paragraph 2) and brought back Article 71(2) TEC in an attenuated form (paragraph 3).
Therefore, the resulting Article III-237 looked like this, without altering the substance of the provision (OJ 16.12.2004 C 310/106):
Article III-237 Constitution
Until the European laws or framework laws referred to in Article III-236(2) have been adopted, no Member State may, unless the Council has unanimously adopted a European decision granting a derogation, make the various provisions governing the subject on 1 January 1958 or, for acceding States, the date of their accession less favourable in their direct or indirect effect on carriers of other Member States as compared with carriers who are nationals of that State.
***
We have followed the treaty reform process from the current TEC to the Treaty of Lisbon (TFEU), now in various stages of ratification, and we have seen that the essence of the provision has remained the same throughout, despite differences in terminology.
***
We now check our conclusions against how others who have scrutinised the Lisbon Treaty have informed ratifying parliaments and the public.
United Kingdom
Professor Steve Peers covered the Treaty of Lisbon in a number of Statewatch Analyses. ‘EU Reform Treaty Analysis no. 3.3: Revised text of Part Three, Titles I to VI of the Treaty establishing the European Community (TEC): Internal Market and competition’ (Version 2, 23 October 2007) includes the current Title V Transport.
Peers highlighted the differences between the current Article 72 TEC, the Constitutional Treaty and the Lisbon Treaty. His comment on Article 72 TFEU (ToL), to be renumbered Article 92 TFEU in the consolidated version, concerned only an earlier draft (page 21):
“The technical error in the July draft of the Reform Treaty (which referred to such acts as legislative) has been corrected.”
The analysis 3.3 and other useful Statewatch analyses are available through:
http://www.statewatch.org/euconstitution.htm
***
The Foreign and Commonwealth Office (FCO) offers a convenient source of brief annotations on Lisbon Treaty amendments in ‘A comparative table of the current EC and EU treaties as amended by the Treaty of Lisbon’ (Command Paper 7311, published 21 January 2008). The comment on Article 92 TFEU, Article 72 TFEU (ToL) in the original Lisbon Treaty, is short and to the point (page 11):
“In substance the same as Article 72 TEC.”
The FCO comparative table is available at:
http://www.official-documents.gov.uk/document/cm73/7311/7311.asp
***
The UK House of Commons Library Research Paper 07/86 ‘The Treaty of Lisbon: amendments to the Treaty establishing the European Community’ (published 6 December 2007) wrapped up Transport in a brief comment on page 56:
“F. Transport
Title V, Articles 70-80 (Constitution Articles III-236 – 245) are on transport and are based largely on Articles 70 – 75 TEC, but with a change in the voting procedure to the OLP with QMV, except for Article 72, which replaces unanimity in the Constitution Article III-237 with a “special legislative procedure”. Other, minor, changes are Article 75(c), which adds the EP to those bodies to be consulted, and Article 78 (Constitution Article III-243), allowing the Article concerning German unification to be repealed after 5 years.
Present Articles 154 – 156 on Trans-European Networks (TENS) have been moved to Title VII and contain only minor amendments.”
The Library Research Paper 07/86 is available at:
http://www.parliament.uk/commons/lib/research/rp2007/rp07-086.pdf
My comment: The comment on the ‘special legislative procedure’ in Article 72 may have been based on an earlier text (but I leave it to the reader interested enough to check). Cf. the comment of Steve Peers above.
***
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) may not have found a substantially unchanged provision like Article 92 TFEU worthy of special mention, but for the reader who wants to understand the framework, the Committee’s discussion about ‘The competences of the European Union’ from page 23 to page 30 may be helpful, especially the text on shared competence.
The report is accessible at:
http://www.publications.parliament.uk/pa/ld200708/ldselect/ldeucom/62/62.pdf
***
Sweden
The consultation paper of the government of Sweden, ‘Lissabonfördraget; Statsrådsberedningen, Departementsserien (Ds), Ds 2007:48’ published 20 December 2007, bundled together transport and trans-European networks under the headline ‘Transporter och transeuropeiska nät’ (page 280 to 282).
The text offers an overview of the coming Title VI ‘Transport’ and mentions the fairly small amendments, but understandably has nothing specific to say about Article 72 TFEU (ToL), the future Article 92 TFEU.
The consultation paper ’Lissabonfördraget’ is available at:
http://www.regeringen.se/content/1/c6/09/49/81/107aa077.pdf
***
Finland
Even the methodical 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), is content to give only a short explanation of Article 72 TFEU (ToL), renumbered Article 92 TFEU (page 206).
The Finnish ratification 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), offers the same brief explanation on page 208.
The ratification bill in Swedish can be accessed at:
http://www.finlex.fi/sv/esitykset/he/2008/20080023.pdf
***
Undramatic as it looks, the role of Article 92 TFEU merits some discussion, if we want to understand EU law as a system.
Article 4(2)(g) TFEU mentions transport as one of the principal areas of shared competence between the EU and the member states (OJ 9.5.2008 C 115/51).
Article 2(2) TFEU explains the main meaning of shared competence (OJ 9.5.2008 C 115/50):
“2. When the Treaties confer on the Union a competence shared with the Member States in a specific area, the Union and the Member States may legislate and adopt legally binding acts in that area. The Member States shall exercise their competence to the extent that the Union has not exercised its competence. The Member States shall again exercise their competence to the extent that the Union has decided to cease exercising its competence.”
For the sake of clarity, Protocol (No 25) on the exercise of shared competence should be mentioned although, in my humble opinion, it only states the obvious (OJ 9.5.2008 C 115/307):
“PROTOCOL (No 25)
ON THE EXERCISE OF SHARED COMPETENCE
THE HIGH CONTRACTING PARTIES,
HAVE AGREED UPON the following provisions, which shall be annexed to the Treaty on European Union and to the Treaty on the Functioning of the European Union:
Sole Article
With reference to Article 2 of the Treaty on the Functioning of the European Union on shared competence, when the Union has taken action in a certain area, the scope of this exercise of competence only covers those elements governed by the Union act in question and therefore does not cover the whole area.”
***
The function of the predecessors of Article 92 TFEU was, in spite of the general rule, to safeguard the objectives of the common transport market, before the European Union (still today the European Community) had had time to legislate. Even absent Community legislation, the member states were prohibited from frustrating the common aim by legislating in the meantime. The standstill clause became effective for the original six members from the entry into force of the EEC Treaty (Treaty of Rome).
For members who join later, the cut-off date is the date of accession.
At the same time, Article 92 TFEU offers an ‘eye of the needle’ type basis for a measure granting a derogation (exception). The measure has to be unanimously adopted by the Council.
Ralf Grahn
Article 92 of the Treaty on the Functioning of the European Union offers a (slim) chance of derogations (exceptions) to the rule.
***
Article 92 of the Treaty on the Functioning of the European Union (TFEU) is found in the consolidated version of the Treaty on European Union and the Treaty on the Functioning of the European Union, published in the Official Journal of the European Union, OJ 9.5.2008 C 115/85:
Part Three ‘Policies and internal actions of the Union’
Title VI TFEU ‘Transport’
Article 92 TFEU
(ex Article 72 TEC)
Until the provisions referred to in Article 91(1) have been laid down, no Member State may, unless the Council has unanimously adopted a measure granting a derogation, make the various provisions governing the subject on 1 January 1958 or, for acceding States, the date of their accession less favourable in their direct or indirect effect on carriers of other Member States as compared with carriers who are nationals of that State.
***
In Article 2, point 71 of the Treaty of Lisbon (ToL) the intergovernmental conference (IGC 2007) stated (OJ 17.12.2007 C 306/68):
71) At the beginning of Article 72, the words ‘, without the unanimous approval of the Council,’ shall be replaced by ‘, unless the Council has unanimously adopted a measure granting a derogation,’.
***
The provision to be amended, Article 72 of the Treaty establishing the European Community (TEC) is found under Title V ‘Transport’ in the latest consolidated version of the current treaties (OJ 29.12.2006 C 321 E/71):
Article 72 TEC
Until the provisions referred to in Article 71(1) have been laid down, no Member State may, without the unanimous approval of the Council, make the various provisions governing the subject on 1 January 1958 or, for acceding States, the date of their accession less favourable in their direct or indirect effect on carriers of other Member States as compared with carriers who are nationals of that State.
***
Article III-135 of the draft Treaty establishing a Constitution for Europe substantially took over the text of the current Article 72 TEC, but a small mistake remained in the text of the European Convention. Because the draft Constitution deleted the second paragraph of the preceding provision, there was no need to make a reference to the first and only paragraph of Article III-134 (OJ 18.7.2003 C 169/54):
Article III-135 Draft Constitution
Until the European laws or framework laws referred to in the first paragraph of Article III-134 have been adopted, no Member State may, unless the Council of Ministers has unanimously adopted a European decision granting a derogation, make the various provisions governing the subject on 1 January 1958 or, for acceding States, the date of their accession less favourable in their direct or indirect effect on carriers of other Member States as compared with carriers who are nationals of that State.
***
The IGC 2004 had merged the European Convention’s Article III-133 on the common transport policy (paragraph 1) and Article III-134 on legislation (paragraph 2) and brought back Article 71(2) TEC in an attenuated form (paragraph 3).
Therefore, the resulting Article III-237 looked like this, without altering the substance of the provision (OJ 16.12.2004 C 310/106):
Article III-237 Constitution
Until the European laws or framework laws referred to in Article III-236(2) have been adopted, no Member State may, unless the Council has unanimously adopted a European decision granting a derogation, make the various provisions governing the subject on 1 January 1958 or, for acceding States, the date of their accession less favourable in their direct or indirect effect on carriers of other Member States as compared with carriers who are nationals of that State.
***
We have followed the treaty reform process from the current TEC to the Treaty of Lisbon (TFEU), now in various stages of ratification, and we have seen that the essence of the provision has remained the same throughout, despite differences in terminology.
***
We now check our conclusions against how others who have scrutinised the Lisbon Treaty have informed ratifying parliaments and the public.
United Kingdom
Professor Steve Peers covered the Treaty of Lisbon in a number of Statewatch Analyses. ‘EU Reform Treaty Analysis no. 3.3: Revised text of Part Three, Titles I to VI of the Treaty establishing the European Community (TEC): Internal Market and competition’ (Version 2, 23 October 2007) includes the current Title V Transport.
Peers highlighted the differences between the current Article 72 TEC, the Constitutional Treaty and the Lisbon Treaty. His comment on Article 72 TFEU (ToL), to be renumbered Article 92 TFEU in the consolidated version, concerned only an earlier draft (page 21):
“The technical error in the July draft of the Reform Treaty (which referred to such acts as legislative) has been corrected.”
The analysis 3.3 and other useful Statewatch analyses are available through:
http://www.statewatch.org/euconstitution.htm
***
The Foreign and Commonwealth Office (FCO) offers a convenient source of brief annotations on Lisbon Treaty amendments in ‘A comparative table of the current EC and EU treaties as amended by the Treaty of Lisbon’ (Command Paper 7311, published 21 January 2008). The comment on Article 92 TFEU, Article 72 TFEU (ToL) in the original Lisbon Treaty, is short and to the point (page 11):
“In substance the same as Article 72 TEC.”
The FCO comparative table is available at:
http://www.official-documents.gov.uk/document/cm73/7311/7311.asp
***
The UK House of Commons Library Research Paper 07/86 ‘The Treaty of Lisbon: amendments to the Treaty establishing the European Community’ (published 6 December 2007) wrapped up Transport in a brief comment on page 56:
“F. Transport
Title V, Articles 70-80 (Constitution Articles III-236 – 245) are on transport and are based largely on Articles 70 – 75 TEC, but with a change in the voting procedure to the OLP with QMV, except for Article 72, which replaces unanimity in the Constitution Article III-237 with a “special legislative procedure”. Other, minor, changes are Article 75(c), which adds the EP to those bodies to be consulted, and Article 78 (Constitution Article III-243), allowing the Article concerning German unification to be repealed after 5 years.
Present Articles 154 – 156 on Trans-European Networks (TENS) have been moved to Title VII and contain only minor amendments.”
The Library Research Paper 07/86 is available at:
http://www.parliament.uk/commons/lib/research/rp2007/rp07-086.pdf
My comment: The comment on the ‘special legislative procedure’ in Article 72 may have been based on an earlier text (but I leave it to the reader interested enough to check). Cf. the comment of Steve Peers above.
***
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) may not have found a substantially unchanged provision like Article 92 TFEU worthy of special mention, but for the reader who wants to understand the framework, the Committee’s discussion about ‘The competences of the European Union’ from page 23 to page 30 may be helpful, especially the text on shared competence.
The report is accessible at:
http://www.publications.parliament.uk/pa/ld200708/ldselect/ldeucom/62/62.pdf
***
Sweden
The consultation paper of the government of Sweden, ‘Lissabonfördraget; Statsrådsberedningen, Departementsserien (Ds), Ds 2007:48’ published 20 December 2007, bundled together transport and trans-European networks under the headline ‘Transporter och transeuropeiska nät’ (page 280 to 282).
The text offers an overview of the coming Title VI ‘Transport’ and mentions the fairly small amendments, but understandably has nothing specific to say about Article 72 TFEU (ToL), the future Article 92 TFEU.
The consultation paper ’Lissabonfördraget’ is available at:
http://www.regeringen.se/content/1/c6/09/49/81/107aa077.pdf
***
Finland
Even the methodical 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), is content to give only a short explanation of Article 72 TFEU (ToL), renumbered Article 92 TFEU (page 206).
The Finnish ratification 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), offers the same brief explanation on page 208.
The ratification bill in Swedish can be accessed at:
http://www.finlex.fi/sv/esitykset/he/2008/20080023.pdf
***
Undramatic as it looks, the role of Article 92 TFEU merits some discussion, if we want to understand EU law as a system.
Article 4(2)(g) TFEU mentions transport as one of the principal areas of shared competence between the EU and the member states (OJ 9.5.2008 C 115/51).
Article 2(2) TFEU explains the main meaning of shared competence (OJ 9.5.2008 C 115/50):
“2. When the Treaties confer on the Union a competence shared with the Member States in a specific area, the Union and the Member States may legislate and adopt legally binding acts in that area. The Member States shall exercise their competence to the extent that the Union has not exercised its competence. The Member States shall again exercise their competence to the extent that the Union has decided to cease exercising its competence.”
For the sake of clarity, Protocol (No 25) on the exercise of shared competence should be mentioned although, in my humble opinion, it only states the obvious (OJ 9.5.2008 C 115/307):
“PROTOCOL (No 25)
ON THE EXERCISE OF SHARED COMPETENCE
THE HIGH CONTRACTING PARTIES,
HAVE AGREED UPON the following provisions, which shall be annexed to the Treaty on European Union and to the Treaty on the Functioning of the European Union:
Sole Article
With reference to Article 2 of the Treaty on the Functioning of the European Union on shared competence, when the Union has taken action in a certain area, the scope of this exercise of competence only covers those elements governed by the Union act in question and therefore does not cover the whole area.”
***
The function of the predecessors of Article 92 TFEU was, in spite of the general rule, to safeguard the objectives of the common transport market, before the European Union (still today the European Community) had had time to legislate. Even absent Community legislation, the member states were prohibited from frustrating the common aim by legislating in the meantime. The standstill clause became effective for the original six members from the entry into force of the EEC Treaty (Treaty of Rome).
For members who join later, the cut-off date is the date of accession.
At the same time, Article 92 TFEU offers an ‘eye of the needle’ type basis for a measure granting a derogation (exception). The measure has to be unanimously adopted by the Council.
Ralf Grahn
Thursday, 15 May 2008
EU resources: How to find them (Example: transport policies)
Do you need resources on EU policies or law? Are you in a hurry, but don’t know where to start?
Many find the European Union’s web pages hard to navigate. Therefore, I have tried to gather a few basic resources, without striving to include everything.
Here is a selective (or eclectic) list of gateways to EU economics, law and policies. We use transport policy as an example, but you can ‘mutatis mutandis’ use most of the materials in other policy fields.
***
What is the importance and impact of transport within the European Union?
EU energy and transport in figures, Statistical pocketbook 2007/2008, offers 216 pages of information about two crucial economic sectors:
http://ec.europa.eu/dgs/energy_transport/figures/pocketbook/doc/2007/2007_pocketbook_all_en.pdf
In another policy area, you might not be as lucky, but almost every area of human activity leaves a statistical footprint. For the European Union, your default option is to see what Eurostat has to offer:
http://epp.eurostat.ec.europa.eu/portal/page?_pageid=1090,30070682,1090_33076576&_dad=portal&_schema=PORTAL
***
What has happened since your course-book was finalised?
The Commission’s Activities of the European Union Transport web page, offers all-round links to EU transport matters:
http://europa.eu/pol/trans/index_en.htm
In the same way you can access every DG of the European Commission through the Europa portal:
http://europa.eu/
Look for ‘What the European Union does by subject’ on:
http://europa.eu/index_en.htm
***
The Commission’s Scadplus web pages, with summaries of legislation, present thematic starting points for different policy areas. Transport is found on:
http://europa.eu/scadplus/leg/en/s13000.htm
Correspondingly, you find the other areas of European Community (European Union) legislation through:
http://europa.eu/scadplus/scad_en.htm
***
What is going on in the European Union?
As always, the European Commission’s General Report on the Activities of the European Union 2007 offers a summary of the main developments in the various policy areas, except for the latest months after the beginning of 2008, with Transport on pages 76 to 83. The current report can be accessed through:
http://europa.eu/generalreport/en/welcome.htm
In this and in other cases, for those who understand a Nordic language, the government of Sweden offers an annual report of comparable scope and quality. The latest activity report is ‘Regeringens skirivelse 2007/2008:85 Berättelse om verksamheten I Europeiska union under 2007’, with transport treated on pages 163 to 180 (in ’Del 7 Transporter, elektroniska kommunikationer och energi’):
http://www.regeringen.se/content/1/c6/10/06/17/00a8fda3.pdf
Both the Commission’s Activity Report and the Swedish Annual Report work as well for other policy fields.
***
You missed the last days?
The latest press releases from the EU institutions are found on ‘What’s new on Europa’:
http://europa.eu/geninfo/whatsnew.htm
***
Foreign and security policy? European Council or Council?
If your interest concerns the common foreign and security policy (CFSP), including the common security and defence policy (CSDP), or the European Council or the different Council configurations, the Council web pages are for you:
http://www.consilium.europa.eu/showPage.ASP?lang=en
***
Naturally, there are lots of more EU web sites depending on your interests. Law librarians have compiled useful EU research guides, but for a ‘quick and dirty’ search a few minutes on the ‘Essential European Union Law Websites’ may be all you need. The Delegation of the European Commission to the USA has compiled the mini site map of European Union legal web pages:
http://www.eurunion.org/infores/BestLawSites.htm
***
Languages?
I have followed the English web pages, but the European Union has 23 treaty languages and official languages. This means that you can find the treaties, secondary legislation and proposals in these languages.
A huge amount of information material is produced in every official EU language, and there are often language options on the web page, once you have found what you are looking for.
Press releases and other non-binding materials are translated according to need and capacity, with the Commission’s working languages (English, French and German) well represented. The Council works almost equally in English and French (my feeling), and the primary internal language of the European Court of Justice is French. The European Parliament heroically translates most information material into every official language.
Still, knowing languages increases your options. The press release or document you are looking for may be released earlier in one language, but it may take a while before the other language versions appear.
***
Dear reader, I would be happy to read about your experiences navigating the European Union.
Ralf Grahn
Many find the European Union’s web pages hard to navigate. Therefore, I have tried to gather a few basic resources, without striving to include everything.
Here is a selective (or eclectic) list of gateways to EU economics, law and policies. We use transport policy as an example, but you can ‘mutatis mutandis’ use most of the materials in other policy fields.
***
What is the importance and impact of transport within the European Union?
EU energy and transport in figures, Statistical pocketbook 2007/2008, offers 216 pages of information about two crucial economic sectors:
http://ec.europa.eu/dgs/energy_transport/figures/pocketbook/doc/2007/2007_pocketbook_all_en.pdf
In another policy area, you might not be as lucky, but almost every area of human activity leaves a statistical footprint. For the European Union, your default option is to see what Eurostat has to offer:
http://epp.eurostat.ec.europa.eu/portal/page?_pageid=1090,30070682,1090_33076576&_dad=portal&_schema=PORTAL
***
What has happened since your course-book was finalised?
The Commission’s Activities of the European Union Transport web page, offers all-round links to EU transport matters:
http://europa.eu/pol/trans/index_en.htm
In the same way you can access every DG of the European Commission through the Europa portal:
http://europa.eu/
Look for ‘What the European Union does by subject’ on:
http://europa.eu/index_en.htm
***
The Commission’s Scadplus web pages, with summaries of legislation, present thematic starting points for different policy areas. Transport is found on:
http://europa.eu/scadplus/leg/en/s13000.htm
Correspondingly, you find the other areas of European Community (European Union) legislation through:
http://europa.eu/scadplus/scad_en.htm
***
What is going on in the European Union?
As always, the European Commission’s General Report on the Activities of the European Union 2007 offers a summary of the main developments in the various policy areas, except for the latest months after the beginning of 2008, with Transport on pages 76 to 83. The current report can be accessed through:
http://europa.eu/generalreport/en/welcome.htm
In this and in other cases, for those who understand a Nordic language, the government of Sweden offers an annual report of comparable scope and quality. The latest activity report is ‘Regeringens skirivelse 2007/2008:85 Berättelse om verksamheten I Europeiska union under 2007’, with transport treated on pages 163 to 180 (in ’Del 7 Transporter, elektroniska kommunikationer och energi’):
http://www.regeringen.se/content/1/c6/10/06/17/00a8fda3.pdf
Both the Commission’s Activity Report and the Swedish Annual Report work as well for other policy fields.
***
You missed the last days?
The latest press releases from the EU institutions are found on ‘What’s new on Europa’:
http://europa.eu/geninfo/whatsnew.htm
***
Foreign and security policy? European Council or Council?
If your interest concerns the common foreign and security policy (CFSP), including the common security and defence policy (CSDP), or the European Council or the different Council configurations, the Council web pages are for you:
http://www.consilium.europa.eu/showPage.ASP?lang=en
***
Naturally, there are lots of more EU web sites depending on your interests. Law librarians have compiled useful EU research guides, but for a ‘quick and dirty’ search a few minutes on the ‘Essential European Union Law Websites’ may be all you need. The Delegation of the European Commission to the USA has compiled the mini site map of European Union legal web pages:
http://www.eurunion.org/infores/BestLawSites.htm
***
Languages?
I have followed the English web pages, but the European Union has 23 treaty languages and official languages. This means that you can find the treaties, secondary legislation and proposals in these languages.
A huge amount of information material is produced in every official EU language, and there are often language options on the web page, once you have found what you are looking for.
Press releases and other non-binding materials are translated according to need and capacity, with the Commission’s working languages (English, French and German) well represented. The Council works almost equally in English and French (my feeling), and the primary internal language of the European Court of Justice is French. The European Parliament heroically translates most information material into every official language.
Still, knowing languages increases your options. The press release or document you are looking for may be released earlier in one language, but it may take a while before the other language versions appear.
***
Dear reader, I would be happy to read about your experiences navigating the European Union.
Ralf Grahn
EU TFEU: Transport legislation
The Treaty of Lisbon introduces marginal improvements for future EU transport legislation. Qualified majority voting, already the norm, is extended to cases where veto powers and special pleading have offered opportunities for political black-mailing and unprincipled derogations. At the same time, the powers of the European Parliament are slightly extended.
***
Article 91 of the Treaty on the Functioning of the European Union (TFEU) lays down the procedure and the scope of EU transport legislation. The Article is found in the consolidated version of the Treaty on European Union and the Treaty on the Functioning of the European Union, published in the Official Journal of the European Union, OJ 9.5.2008 C 115/85:
Part Three ‘Policies and internal actions of the Union’
Title VI TFEU ‘Transport’
Article 91 TFEU
(ex Article 71 TEC)
1. For the purpose of implementing Article 90, and taking into account the distinctive features of transport, the European Parliament and the Council shall, acting in accordance with the ordinary legislative procedure and after consulting the Economic and Social Committee and the Committee of the Regions, lay down:
(a) common rules applicable to international transport to or from the territory of a Member State or passing across the territory of one or more Member States;
(b) the conditions under which non-resident carriers may operate transport services within a Member State;
(c) measures to improve transport safety;
(d) any other appropriate provisions.
2. When the measures referred to in paragraph 1 are adopted, account shall be taken of cases where their application might seriously affect the standard of living and level of employment in certain regions, and the operation of transport facilities.
***
In Article 2, point 70 of the Treaty of Lisbon (ToL) the intergovernmental conference (IGC 2007) stated (OJ 17.12.2007 C 306/68):
70) In Article 71, paragraph 2 shall be replaced by the following:
‘2. When the measures referred to in paragraph 1 are adopted, account shall be taken of cases where their application might seriously affect the standard of living and level of employment in certain regions, and the operation of transport facilities.’.
***
Article 71 of the Treaty establishing the European Community (TEC) is found under Title V ‘Transport’ in the latest consolidated version of the current treaties (OJ 29.12.2006 C 321 E/70):
Article 71 TEC
1. For the purpose of implementing Article 70, and taking into account the distinctive features of transport, the Council shall, acting in accordance with the procedure referred to in Article 251 and after consulting the Economic and Social Committee and the Committee of the Regions, lay down:
(a) common rules applicable to international transport to or from the territory of a Member State or passing across the territory of one or more Member States;
(b) the conditions under which non-resident carriers may operate transport services within a Member State;
(c) measures to improve transport safety;
(d) any other appropriate provisions.
2. By way of derogation from the procedure provided for in paragraph 1, where the application of provisions concerning the principles of the regulatory system for transport would be liable to have a serious effect on the standard of living and on employment in certain areas and on the operation of transport facilities, they shall be laid down by the Council acting unanimously on a proposal from the Commission, after consulting the European Parliament and the Economic and Social Committee. In so doing, the Council shall take into account the need for adaptation to the economic development which will result from establishing the common market.
***
Article III-134 of the draft Treaty establishing a Constitution for Europe substantially took over the text of the first paragraph of the current Article 71, but left out the second paragraph TEC (OJ 18.7.2003 C 169/54):
Article III-134 Draft Constitution
European laws or framework laws shall implement Article III- 133, taking into account the distinctive features of transport. They shall be adopted after consultation of the Committee of
the Regions and the Economic and Social Committee.
Such European laws or framework laws shall contain:
(a) common rules applicable to international transport to or from the territory of a Member State or passing across the territory of one or more Member States;
(b) the conditions under which non-resident carriers may operate transport services within a Member State;
(c) measures to improve transport safety;
(d) any other appropriate measure.
***
The IGC 2004 merged the European Convention’s Article III-133 on the common transport policy (paragraph 1) and Article III-134 on legislation(paragraph 2) and brought back Article 71(2) TEC in an attenuated form (paragraph 3).
The resulting Article III-236 looked like this (OJ 16.12.2004 C 310/105–106):
Section 7
Transport
Article III-236 Constitution
1. The objectives of the Constitution shall, in matters governed by this Section, be pursued within the framework of a common transport policy.
2. European laws or framework laws shall implement paragraph 1, taking into account the distinctive features of transport. They shall be adopted after consultation of the Committee of the Regions and the Economic and Social Committee.
Such European laws or framework laws shall establish:
(a) common rules applicable to international transport to or from the territory of a Member State or passing across the territory of one or more Member States;
(b) the conditions under which non‑resident carriers may operate transport services within a Member State;
(c) measures to improve transport safety;
(d) any other appropriate measure.
3. When the European laws or framework laws referred to in paragraph 2 are adopted, account shall be taken of cases where their application might seriously affect the standard of living and level of employment in certain regions, and the operation of transport facilities.
***
The European Convention would have abolished the unanimity requirement or power to block legislation as well as the express grounds for special pleading by the member states to exact derogations by the force of their veto power in the current Article 71(2) TEC. In these cases the European Parliament, now only consulted, would have been a co-legislator according to the main rule, even if a member state pleaded serious effects on the standard of living and on employment in certain areas and on the operation of transport facilities.
The IGC 2004 adopted the proposal of the European Convention, insofar as it scrapped the gridlock-inducing unanimity rule, but special pleading was expressly allowed within the framework of the ordinary legislative procedure.
The IGC 2007, with the normal horizontal amendments, took over the substance of the current Article 71(1) TEC or III-236(2) of the Constitutional Treaty (however you want to present it), with Article 71(2) TEC replaced by the Article III-236(3) text.
In principle, the Treaty of Lisbon means that qualified majority voting applies in the Council and that the European Parliament participates in co-decision over the whole area of the common transport policy. Thus, the powers of the European Parliament are enhanced, at least marginally, and on the face of it, the prospects for more consistent transport legislation become somewhat brighter.
Account shall still be taken of cases where the application of EU legislation might seriously affect the standard of living and level of employment in certain regions, and the operation of transport facilities. Even if the European Commission has a general duty to analyse and to anticipate the consequences of its proposals, both it and the member states are invited to pay special attention to possible dire outcomes on the micro level.
***
We check our conclusions against those of others who have scrutinised the Lisbon Treaty and informed ratifying parliaments and the public.
United Kingdom
Professor Steve Peers covered the Treaty of Lisbon. Statewatch Analysis ‘EU Reform Treaty Analysis no. 3.3: Revised text of Part Three, Titles I to VI of the Treaty establishing the European Community (TEC): Internal Market and competition’ (Version 2, 23 October 2007) includes the current Title V Transport.
Peers makes highlighted the differences between the current Article 71 TEC, the Constitutional Treaty and the Lisbon Treaty. His conclusion on Article 71 TFEU (ToL), to be renumbered Article 91 TFEU in the consolidated version, is on page 21:
“The unanimity exception would be deleted. This also entails an extension of the co-decision procedure.”
The analysis 3.3 and other useful Statewatch analyses are available through:
http://www.statewatch.org/euconstitution.htm
***
The Foreign and Commonwealth Office (FCO) offers a convenient source of brief annotations on Lisbon Treaty amendments in ‘A comparative table of the current EC and EU treaties as amended by the Treaty of Lisbon’ (Command Paper 7311, published 21 January 2008). The comment on Article 91 TFEU, Article 71 TFEU (ToL) in the original Lisbon Treaty, is as pithy as that of Peers (page 11):
“Draws on Article 71 TEC. Co-decision applied to paragraph 2.”
The FCO comparative table is available at:
http://www.official-documents.gov.uk/document/cm73/7311/7311.asp
***
The UK House of Commons Library Research Paper 07/86 ‘The Treaty of Lisbon: amendments to the Treaty establishing the European Community’ (published 6 December 2007) wrapped up Transport in a brief comment on page 56:
“F. Transport
Title V, Articles 70-80 (Constitution Articles III-236 – 245) are on transport and are based largely on Articles 70 – 75 TEC, but with a change in the voting procedure to the OLP with QMV, except for Article 72, which replaces unanimity in the Constitution Article III-237 with a “special legislative procedure”. Other, minor, changes are Article 75(c), which adds the EP to those bodies to be consulted, and Article 78 (Constitution Article III-243), allowing the Article concerning German unification to be repealed after 5 years.
Present Articles 154 – 156 on Trans-European Networks (TENS) have been moved to Title VII and contain only minor amendments.”
The Library Research Paper 07/86 is available at:
http://www.parliament.uk/commons/lib/research/rp2007/rp07-086.pdf
***
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 Lisbon Treaty extensions of the powers of the European Parliament, with the following conclusion (page 72):
“4.138. The Lisbon Treaty considerably increases the powers of the European Parliament—in particular because of the extension of codecision to a substantially larger range of areas, including agriculture, fisheries, transport and structural funds, in addition to the whole of the current “third pillar” of justice and home affairs—to the extent that the European Parliament will become co-legislator for most European laws. This will have an effect on the balance of power between the institutions (see below).”
The report is accessible at:
http://www.publications.parliament.uk/pa/ld200708/ldselect/ldeucom/62/62.pdf
***
Sweden
The consultation paper of the government of Sweden, ‘Lissabonfördraget; Statsrådsberedningen, Departementsserien (Ds), Ds 2007:48’ published 20 December 2007, bundled together transport and trans-European networks under the headline ‘Transporter och transeuropeiska nät’ (page 280 to 282).
The text offers an overview of the coming Title VI ‘Transport’ and mentions the (fairly small) amendments.
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), explains the contents of Article 71 TFEU (ToL), renumbered Article 91 TFEU (page 205).
A small slip occurs, when the explanation mentions, among technical adjustments, that the words ’common market’ are replaced by the ’internal market’. The last words of Article 71(2) are indeed the ‘common market’, but the Lisbon Treaty Article 91(2) TFEU is worded differently, so the observation is made in the wrong context.
The Finnish ratification 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), presents the same explanation and makes the same small error on page 208.
The ratification bill in Swedish can be accessed at:
http://www.finlex.fi/sv/esitykset/he/2008/20080023.pdf
Ralf Grahn
***
Article 91 of the Treaty on the Functioning of the European Union (TFEU) lays down the procedure and the scope of EU transport legislation. The Article is found in the consolidated version of the Treaty on European Union and the Treaty on the Functioning of the European Union, published in the Official Journal of the European Union, OJ 9.5.2008 C 115/85:
Part Three ‘Policies and internal actions of the Union’
Title VI TFEU ‘Transport’
Article 91 TFEU
(ex Article 71 TEC)
1. For the purpose of implementing Article 90, and taking into account the distinctive features of transport, the European Parliament and the Council shall, acting in accordance with the ordinary legislative procedure and after consulting the Economic and Social Committee and the Committee of the Regions, lay down:
(a) common rules applicable to international transport to or from the territory of a Member State or passing across the territory of one or more Member States;
(b) the conditions under which non-resident carriers may operate transport services within a Member State;
(c) measures to improve transport safety;
(d) any other appropriate provisions.
2. When the measures referred to in paragraph 1 are adopted, account shall be taken of cases where their application might seriously affect the standard of living and level of employment in certain regions, and the operation of transport facilities.
***
In Article 2, point 70 of the Treaty of Lisbon (ToL) the intergovernmental conference (IGC 2007) stated (OJ 17.12.2007 C 306/68):
70) In Article 71, paragraph 2 shall be replaced by the following:
‘2. When the measures referred to in paragraph 1 are adopted, account shall be taken of cases where their application might seriously affect the standard of living and level of employment in certain regions, and the operation of transport facilities.’.
***
Article 71 of the Treaty establishing the European Community (TEC) is found under Title V ‘Transport’ in the latest consolidated version of the current treaties (OJ 29.12.2006 C 321 E/70):
Article 71 TEC
1. For the purpose of implementing Article 70, and taking into account the distinctive features of transport, the Council shall, acting in accordance with the procedure referred to in Article 251 and after consulting the Economic and Social Committee and the Committee of the Regions, lay down:
(a) common rules applicable to international transport to or from the territory of a Member State or passing across the territory of one or more Member States;
(b) the conditions under which non-resident carriers may operate transport services within a Member State;
(c) measures to improve transport safety;
(d) any other appropriate provisions.
2. By way of derogation from the procedure provided for in paragraph 1, where the application of provisions concerning the principles of the regulatory system for transport would be liable to have a serious effect on the standard of living and on employment in certain areas and on the operation of transport facilities, they shall be laid down by the Council acting unanimously on a proposal from the Commission, after consulting the European Parliament and the Economic and Social Committee. In so doing, the Council shall take into account the need for adaptation to the economic development which will result from establishing the common market.
***
Article III-134 of the draft Treaty establishing a Constitution for Europe substantially took over the text of the first paragraph of the current Article 71, but left out the second paragraph TEC (OJ 18.7.2003 C 169/54):
Article III-134 Draft Constitution
European laws or framework laws shall implement Article III- 133, taking into account the distinctive features of transport. They shall be adopted after consultation of the Committee of
the Regions and the Economic and Social Committee.
Such European laws or framework laws shall contain:
(a) common rules applicable to international transport to or from the territory of a Member State or passing across the territory of one or more Member States;
(b) the conditions under which non-resident carriers may operate transport services within a Member State;
(c) measures to improve transport safety;
(d) any other appropriate measure.
***
The IGC 2004 merged the European Convention’s Article III-133 on the common transport policy (paragraph 1) and Article III-134 on legislation(paragraph 2) and brought back Article 71(2) TEC in an attenuated form (paragraph 3).
The resulting Article III-236 looked like this (OJ 16.12.2004 C 310/105–106):
Section 7
Transport
Article III-236 Constitution
1. The objectives of the Constitution shall, in matters governed by this Section, be pursued within the framework of a common transport policy.
2. European laws or framework laws shall implement paragraph 1, taking into account the distinctive features of transport. They shall be adopted after consultation of the Committee of the Regions and the Economic and Social Committee.
Such European laws or framework laws shall establish:
(a) common rules applicable to international transport to or from the territory of a Member State or passing across the territory of one or more Member States;
(b) the conditions under which non‑resident carriers may operate transport services within a Member State;
(c) measures to improve transport safety;
(d) any other appropriate measure.
3. When the European laws or framework laws referred to in paragraph 2 are adopted, account shall be taken of cases where their application might seriously affect the standard of living and level of employment in certain regions, and the operation of transport facilities.
***
The European Convention would have abolished the unanimity requirement or power to block legislation as well as the express grounds for special pleading by the member states to exact derogations by the force of their veto power in the current Article 71(2) TEC. In these cases the European Parliament, now only consulted, would have been a co-legislator according to the main rule, even if a member state pleaded serious effects on the standard of living and on employment in certain areas and on the operation of transport facilities.
The IGC 2004 adopted the proposal of the European Convention, insofar as it scrapped the gridlock-inducing unanimity rule, but special pleading was expressly allowed within the framework of the ordinary legislative procedure.
The IGC 2007, with the normal horizontal amendments, took over the substance of the current Article 71(1) TEC or III-236(2) of the Constitutional Treaty (however you want to present it), with Article 71(2) TEC replaced by the Article III-236(3) text.
In principle, the Treaty of Lisbon means that qualified majority voting applies in the Council and that the European Parliament participates in co-decision over the whole area of the common transport policy. Thus, the powers of the European Parliament are enhanced, at least marginally, and on the face of it, the prospects for more consistent transport legislation become somewhat brighter.
Account shall still be taken of cases where the application of EU legislation might seriously affect the standard of living and level of employment in certain regions, and the operation of transport facilities. Even if the European Commission has a general duty to analyse and to anticipate the consequences of its proposals, both it and the member states are invited to pay special attention to possible dire outcomes on the micro level.
***
We check our conclusions against those of others who have scrutinised the Lisbon Treaty and informed ratifying parliaments and the public.
United Kingdom
Professor Steve Peers covered the Treaty of Lisbon. Statewatch Analysis ‘EU Reform Treaty Analysis no. 3.3: Revised text of Part Three, Titles I to VI of the Treaty establishing the European Community (TEC): Internal Market and competition’ (Version 2, 23 October 2007) includes the current Title V Transport.
Peers makes highlighted the differences between the current Article 71 TEC, the Constitutional Treaty and the Lisbon Treaty. His conclusion on Article 71 TFEU (ToL), to be renumbered Article 91 TFEU in the consolidated version, is on page 21:
“The unanimity exception would be deleted. This also entails an extension of the co-decision procedure.”
The analysis 3.3 and other useful Statewatch analyses are available through:
http://www.statewatch.org/euconstitution.htm
***
The Foreign and Commonwealth Office (FCO) offers a convenient source of brief annotations on Lisbon Treaty amendments in ‘A comparative table of the current EC and EU treaties as amended by the Treaty of Lisbon’ (Command Paper 7311, published 21 January 2008). The comment on Article 91 TFEU, Article 71 TFEU (ToL) in the original Lisbon Treaty, is as pithy as that of Peers (page 11):
“Draws on Article 71 TEC. Co-decision applied to paragraph 2.”
The FCO comparative table is available at:
http://www.official-documents.gov.uk/document/cm73/7311/7311.asp
***
The UK House of Commons Library Research Paper 07/86 ‘The Treaty of Lisbon: amendments to the Treaty establishing the European Community’ (published 6 December 2007) wrapped up Transport in a brief comment on page 56:
“F. Transport
Title V, Articles 70-80 (Constitution Articles III-236 – 245) are on transport and are based largely on Articles 70 – 75 TEC, but with a change in the voting procedure to the OLP with QMV, except for Article 72, which replaces unanimity in the Constitution Article III-237 with a “special legislative procedure”. Other, minor, changes are Article 75(c), which adds the EP to those bodies to be consulted, and Article 78 (Constitution Article III-243), allowing the Article concerning German unification to be repealed after 5 years.
Present Articles 154 – 156 on Trans-European Networks (TENS) have been moved to Title VII and contain only minor amendments.”
The Library Research Paper 07/86 is available at:
http://www.parliament.uk/commons/lib/research/rp2007/rp07-086.pdf
***
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 Lisbon Treaty extensions of the powers of the European Parliament, with the following conclusion (page 72):
“4.138. The Lisbon Treaty considerably increases the powers of the European Parliament—in particular because of the extension of codecision to a substantially larger range of areas, including agriculture, fisheries, transport and structural funds, in addition to the whole of the current “third pillar” of justice and home affairs—to the extent that the European Parliament will become co-legislator for most European laws. This will have an effect on the balance of power between the institutions (see below).”
The report is accessible at:
http://www.publications.parliament.uk/pa/ld200708/ldselect/ldeucom/62/62.pdf
***
Sweden
The consultation paper of the government of Sweden, ‘Lissabonfördraget; Statsrådsberedningen, Departementsserien (Ds), Ds 2007:48’ published 20 December 2007, bundled together transport and trans-European networks under the headline ‘Transporter och transeuropeiska nät’ (page 280 to 282).
The text offers an overview of the coming Title VI ‘Transport’ and mentions the (fairly small) amendments.
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), explains the contents of Article 71 TFEU (ToL), renumbered Article 91 TFEU (page 205).
A small slip occurs, when the explanation mentions, among technical adjustments, that the words ’common market’ are replaced by the ’internal market’. The last words of Article 71(2) are indeed the ‘common market’, but the Lisbon Treaty Article 91(2) TFEU is worded differently, so the observation is made in the wrong context.
The Finnish ratification 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), presents the same explanation and makes the same small error on page 208.
The ratification bill in Swedish can be accessed at:
http://www.finlex.fi/sv/esitykset/he/2008/20080023.pdf
Ralf Grahn
Wednesday, 14 May 2008
EU TFEU: Common transport policy
Modern life in general and the internal market in particular, would be unimaginable without cross-border transport. Soaring fuel prices and environmental concerns guarantee that transport policies are going to climb even higher on the EU policy agenda, even if the Treaty of Lisbon does fairly little to change the treaty basis for transport.
***
Article 90 of the Treaty on the Functioning of the European Union (TFEU) starts the following Title on a hugely important economic sector: Title VI ‘Transport’. The Article is found in the consolidated version of the Treaty on European Union and the Treaty on the Functioning of the European Union, published in the Official Journal of the European Union, OJ 9.5.2008 C 115/85:
Part Three ‘Policies and internal actions of the Union’
Title VI TFEU ‘Transport’
Article 90 TFEU
(ex Article 70 TEC)
The objectives of the Treaties shall, in matters governed by this Title, be pursued within the framework of a common transport policy.
***
In Article 2, point 69 of the Treaty of Lisbon (ToL) the intergovernmental conference (IGC 2007) stated (OJ 17.12.2007 C 306/68):
TRANSPORT
69) In Article 70, the words ‘of this Treaty’ shall be replaced by ‘of the Treaties’ and the words ‘by Member States’ shall be deleted.
***
Article 70 of the Treaty establishing the European Community (TEC) is found under Title V ‘Transport’ in the latest consolidated version of the current treaties (OJ 29.12.2006 C 321 E/70):
Title V
Transport
Article 70 TEC
The objectives of this Treaty shall, in matters governed by this title, be pursued by Member States within the framework of a common transport policy.
***
The European Convention placed Section 7 ‘Transport’ in Part III ‘The policies and functioning of the Union’, Title III ‘Internal policies and action’, Chapter III ‘Policies in other specific areas’. Article III-133 of the draft Treaty establishing a Constitution for Europe substantially took over the text of the current Article 70 TEC (OJ 18.7.2003 C 169/54):
Section 7
Transport
Article III-133 Draft Constitution
The objectives of the Constitution shall, in matters governed by this Title, be pursued within the framework of a common transport policy.
***
The IGC 2004 followed the European Convention in the structure of the treaty, with Part III ‘Policies and functioning of the Union’, Title III ‘Internal policies and action’, Chapter III ‘Policies in other areas’ and Section 7 ‘Transport’. But in Article III-236 of the Treaty establishing a Constitution for Europe the IGC 2004 merged a number of provisions into one, lengthy Article.
Although only the first paragraph corresponds directly to the provisions we have looked at, we present the whole Article III-236 for illustrative purposes (OJ 16.12.2004 C 310/105–106):
Section 7
Transport
Article III-236 Constitution
1. The objectives of the Constitution shall, in matters governed by this Section, be pursued within the framework of a common transport policy.
2. European laws or framework laws shall implement paragraph 1, taking into account the distinctive features of transport. They shall be adopted after consultation of the Committee of the Regions and the Economic and Social Committee.
Such European laws or framework laws shall establish:
(a) common rules applicable to international transport to or from the territory of a Member State or passing across the territory of one or more Member States;
(b) the conditions under which non‑resident carriers may operate transport services within a Member State;
(c) measures to improve transport safety;
(d) any other appropriate measure.
3. When the European laws or framework laws referred to in paragraph 2 are adopted, account shall be taken of cases where their application might seriously affect the standard of living and level of employment in certain regions, and the operation of transport facilities.
***
From the current TEC to the Treaty of Lisbon there has been no substantial change. Drafting a ‘meatier’ introductory Article in the Constitutional Treaty remained an experiment when the IGC 2007 was mandated to tinker with the current treaties instead of presenting an integrated whole.
Accordingly, I found no special mention in the IGC 2007 Mandate (Council document 11218/07).
***
Article 4(2)(g) TFEU names transport as one of the principle areas with shared competence between the EU and the member states, and we have seen that transport has been classified as one of the common policy areas.
***
We turn to a few sources outside the treaty texts. It is only natural that most commentators have focused on the institutional questions and the real changes, and that areas largely unchanged have attracted less comments, because they are less relevant for the ratification processes.
On the other hand, this blog attempts to check the different stages of the treaty reform process systematically and to present the treaty foundations for all EU policies in the form they will have when (or if) the Treaty of Lisbon enters into force.
***
United Kingdom
Professor Steve Peers has covered the Treaty of Lisbon. Statewatch Analysis ‘EU Reform Treaty Analysis no. 3.3: Revised text of Part Three, Titles I to VI of the Treaty establishing the European Community (TEC): Internal Market and competition’ (Version 2, 23 October 2007) includes the current Title V Transport.
Peers makes an introductory remark on page 20:
“Some press commentary on the Constitutional Treaty suggested that the EU would have a ‘new’ common transport policy. It should be noted that the EC already has a common transport policy, and indeed has done since the original Treaty of Rome in 1958. It can be seen from the text below that the Treaty provisions would largely be left intact by the draft Reform Treaty (ditto the Constitutional Treaty). In fact, the Treaty provisions on transport have barely been amended since the original Treaty of Rome, except to remove the requirement for unanimous voting on shipping and air transport measures back in 1987, when the Single European Act entered into force.”
This analysis and other useful Statewatch analyses are available through:
http://www.statewatch.org/euconstitution.htm
***
The Foreign and Commonwealth Office (FCO) offers a convenient source of brief annotations on Lisbon Treaty amendments in ‘A comparative table of the current EC and EU treaties as amended by the Treaty of Lisbon’ (Command Paper 7311, published 21 January 2008). The comment on Article 90 TFEU, Article 70 TFEU (ToL) in the original Lisbon Treaty, is short and unsurprising:
“In substance the same as Article 70 TEC.”
The FCO comparative table is available at:
http://www.official-documents.gov.uk/document/cm73/7311/7311.asp
***
The UK House of Commons Library Research Paper 07/86 ‘The Treaty of Lisbon: amendments to the Treaty establishing the European Community’ (published 6 December 2007) wraps up Transport in a brief comment on page 56:
“F. Transport
Title V, Articles 70-80 (Constitution Articles III-236 – 245) are on transport and are based largely on Articles 70 – 75 TEC, but with a change in the voting procedure to the OLP with QMV, except for Article 72, which replaces unanimity in the Constitution Article III-237 with a “special legislative procedure”. Other, minor, changes are Article 75(c), which adds the EP to those bodies to be consulted, and Article 78 (Constitution Article III-243), allowing the Article concerning German unification to be repealed after 5 years.
Present Articles 154 – 156 on Trans-European Networks (TENS) have been moved to Title VII and contain only minor amendments.”
The Library Research Paper 07/86 is available at:
http://www.parliament.uk/commons/lib/research/rp2007/rp07-086.pdf
***
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 Lisbon Treaty extensions of the powers of the European Parliament, with the following conclusion (page 72):
“4.138. The Lisbon Treaty considerably increases the powers of the European Parliament—in particular because of the extension of codecision to a substantially larger range of areas, including agriculture, fisheries, transport and structural funds, in addition to the whole of the current “third pillar” of justice and home affairs—to the extent that the European Parliament will become co-legislator for most European laws. This will have an effect on the balance of power between the institutions (see below).”
The report is accessible at:
http://www.publications.parliament.uk/pa/ld200708/ldselect/ldeucom/62/62.pdf
***
Sweden
The consultation paper of the government of Sweden, ‘Lissabonfördraget; Statsrådsberedningen, Departementsserien (Ds), Ds 2007:48’ published 20 December 2007, bundles together transport and trans-European networks under the headline ‘Transporter och transeuropeiska nät’ (page 280 to 282).
The text offers an overview of the coming Title VI ‘Transport’ and mentions the (fairly small) amendments.
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), remarks that Article 70 TFEU (ToL), renumbered Article 90 TFEU, deletes the words ’by Member States’, which leaves the general framework of a common transport policy (page 205).
The Finnish ratification 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), mentions the same fact on page 208.
The ratification bill in Swedish can be accessed at:
http://www.finlex.fi/sv/esitykset/he/2008/20080023.pdf
***
One step closer to the substantive EU policy questions concerning the crucially important transport sector, is the European Parliament Fact Sheet 4.5.1. ‘Transport policy: general principles’:
http://www.europarl.europa.eu/facts/4_5_1_en.htm
The Commission’s Transport web pages were down, when I tried a moment ago, but the interested reader will – with more luck – find an impressive amount of useful information and links.
Ralf Grahn
***
Article 90 of the Treaty on the Functioning of the European Union (TFEU) starts the following Title on a hugely important economic sector: Title VI ‘Transport’. The Article is found in the consolidated version of the Treaty on European Union and the Treaty on the Functioning of the European Union, published in the Official Journal of the European Union, OJ 9.5.2008 C 115/85:
Part Three ‘Policies and internal actions of the Union’
Title VI TFEU ‘Transport’
Article 90 TFEU
(ex Article 70 TEC)
The objectives of the Treaties shall, in matters governed by this Title, be pursued within the framework of a common transport policy.
***
In Article 2, point 69 of the Treaty of Lisbon (ToL) the intergovernmental conference (IGC 2007) stated (OJ 17.12.2007 C 306/68):
TRANSPORT
69) In Article 70, the words ‘of this Treaty’ shall be replaced by ‘of the Treaties’ and the words ‘by Member States’ shall be deleted.
***
Article 70 of the Treaty establishing the European Community (TEC) is found under Title V ‘Transport’ in the latest consolidated version of the current treaties (OJ 29.12.2006 C 321 E/70):
Title V
Transport
Article 70 TEC
The objectives of this Treaty shall, in matters governed by this title, be pursued by Member States within the framework of a common transport policy.
***
The European Convention placed Section 7 ‘Transport’ in Part III ‘The policies and functioning of the Union’, Title III ‘Internal policies and action’, Chapter III ‘Policies in other specific areas’. Article III-133 of the draft Treaty establishing a Constitution for Europe substantially took over the text of the current Article 70 TEC (OJ 18.7.2003 C 169/54):
Section 7
Transport
Article III-133 Draft Constitution
The objectives of the Constitution shall, in matters governed by this Title, be pursued within the framework of a common transport policy.
***
The IGC 2004 followed the European Convention in the structure of the treaty, with Part III ‘Policies and functioning of the Union’, Title III ‘Internal policies and action’, Chapter III ‘Policies in other areas’ and Section 7 ‘Transport’. But in Article III-236 of the Treaty establishing a Constitution for Europe the IGC 2004 merged a number of provisions into one, lengthy Article.
Although only the first paragraph corresponds directly to the provisions we have looked at, we present the whole Article III-236 for illustrative purposes (OJ 16.12.2004 C 310/105–106):
Section 7
Transport
Article III-236 Constitution
1. The objectives of the Constitution shall, in matters governed by this Section, be pursued within the framework of a common transport policy.
2. European laws or framework laws shall implement paragraph 1, taking into account the distinctive features of transport. They shall be adopted after consultation of the Committee of the Regions and the Economic and Social Committee.
Such European laws or framework laws shall establish:
(a) common rules applicable to international transport to or from the territory of a Member State or passing across the territory of one or more Member States;
(b) the conditions under which non‑resident carriers may operate transport services within a Member State;
(c) measures to improve transport safety;
(d) any other appropriate measure.
3. When the European laws or framework laws referred to in paragraph 2 are adopted, account shall be taken of cases where their application might seriously affect the standard of living and level of employment in certain regions, and the operation of transport facilities.
***
From the current TEC to the Treaty of Lisbon there has been no substantial change. Drafting a ‘meatier’ introductory Article in the Constitutional Treaty remained an experiment when the IGC 2007 was mandated to tinker with the current treaties instead of presenting an integrated whole.
Accordingly, I found no special mention in the IGC 2007 Mandate (Council document 11218/07).
***
Article 4(2)(g) TFEU names transport as one of the principle areas with shared competence between the EU and the member states, and we have seen that transport has been classified as one of the common policy areas.
***
We turn to a few sources outside the treaty texts. It is only natural that most commentators have focused on the institutional questions and the real changes, and that areas largely unchanged have attracted less comments, because they are less relevant for the ratification processes.
On the other hand, this blog attempts to check the different stages of the treaty reform process systematically and to present the treaty foundations for all EU policies in the form they will have when (or if) the Treaty of Lisbon enters into force.
***
United Kingdom
Professor Steve Peers has covered the Treaty of Lisbon. Statewatch Analysis ‘EU Reform Treaty Analysis no. 3.3: Revised text of Part Three, Titles I to VI of the Treaty establishing the European Community (TEC): Internal Market and competition’ (Version 2, 23 October 2007) includes the current Title V Transport.
Peers makes an introductory remark on page 20:
“Some press commentary on the Constitutional Treaty suggested that the EU would have a ‘new’ common transport policy. It should be noted that the EC already has a common transport policy, and indeed has done since the original Treaty of Rome in 1958. It can be seen from the text below that the Treaty provisions would largely be left intact by the draft Reform Treaty (ditto the Constitutional Treaty). In fact, the Treaty provisions on transport have barely been amended since the original Treaty of Rome, except to remove the requirement for unanimous voting on shipping and air transport measures back in 1987, when the Single European Act entered into force.”
This analysis and other useful Statewatch analyses are available through:
http://www.statewatch.org/euconstitution.htm
***
The Foreign and Commonwealth Office (FCO) offers a convenient source of brief annotations on Lisbon Treaty amendments in ‘A comparative table of the current EC and EU treaties as amended by the Treaty of Lisbon’ (Command Paper 7311, published 21 January 2008). The comment on Article 90 TFEU, Article 70 TFEU (ToL) in the original Lisbon Treaty, is short and unsurprising:
“In substance the same as Article 70 TEC.”
The FCO comparative table is available at:
http://www.official-documents.gov.uk/document/cm73/7311/7311.asp
***
The UK House of Commons Library Research Paper 07/86 ‘The Treaty of Lisbon: amendments to the Treaty establishing the European Community’ (published 6 December 2007) wraps up Transport in a brief comment on page 56:
“F. Transport
Title V, Articles 70-80 (Constitution Articles III-236 – 245) are on transport and are based largely on Articles 70 – 75 TEC, but with a change in the voting procedure to the OLP with QMV, except for Article 72, which replaces unanimity in the Constitution Article III-237 with a “special legislative procedure”. Other, minor, changes are Article 75(c), which adds the EP to those bodies to be consulted, and Article 78 (Constitution Article III-243), allowing the Article concerning German unification to be repealed after 5 years.
Present Articles 154 – 156 on Trans-European Networks (TENS) have been moved to Title VII and contain only minor amendments.”
The Library Research Paper 07/86 is available at:
http://www.parliament.uk/commons/lib/research/rp2007/rp07-086.pdf
***
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 Lisbon Treaty extensions of the powers of the European Parliament, with the following conclusion (page 72):
“4.138. The Lisbon Treaty considerably increases the powers of the European Parliament—in particular because of the extension of codecision to a substantially larger range of areas, including agriculture, fisheries, transport and structural funds, in addition to the whole of the current “third pillar” of justice and home affairs—to the extent that the European Parliament will become co-legislator for most European laws. This will have an effect on the balance of power between the institutions (see below).”
The report is accessible at:
http://www.publications.parliament.uk/pa/ld200708/ldselect/ldeucom/62/62.pdf
***
Sweden
The consultation paper of the government of Sweden, ‘Lissabonfördraget; Statsrådsberedningen, Departementsserien (Ds), Ds 2007:48’ published 20 December 2007, bundles together transport and trans-European networks under the headline ‘Transporter och transeuropeiska nät’ (page 280 to 282).
The text offers an overview of the coming Title VI ‘Transport’ and mentions the (fairly small) amendments.
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), remarks that Article 70 TFEU (ToL), renumbered Article 90 TFEU, deletes the words ’by Member States’, which leaves the general framework of a common transport policy (page 205).
The Finnish ratification 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), mentions the same fact on page 208.
The ratification bill in Swedish can be accessed at:
http://www.finlex.fi/sv/esitykset/he/2008/20080023.pdf
***
One step closer to the substantive EU policy questions concerning the crucially important transport sector, is the European Parliament Fact Sheet 4.5.1. ‘Transport policy: general principles’:
http://www.europarl.europa.eu/facts/4_5_1_en.htm
The Commission’s Transport web pages were down, when I tried a moment ago, but the interested reader will – with more luck – find an impressive amount of useful information and links.
Ralf Grahn
Tuesday, 13 May 2008
EU TFEU: Police operations in the territory of another member state
Although the European Union has created the conditions for the free movement of crime, the EU area of freedom, security and justice remains a patchwork. Common rules on judicial and police authorities operating in the territory of another member state remain outside the ordinary legislative procedure, subject to unanimity in the Council. Even if there were common rules, the concrete operations would take place in liaison and in agreement with the turf state.
Here the EU Treaty of Lisbon does nothing to upset the sensibilities of member states or organised crime.
***
Article 89 of the Treaty on the Functioning of the European Union (TFEU) lays out the special legislative procedure for operating in the territory of another member state. The Article is found in the consolidated version of the Treaty on European Union and the Treaty on the Functioning of the European Union, published in the Official Journal of the European Union, OJ 9.5.2008 C 115/84. The location of the provision is added from the TFEU table of equivalences (page 368–371):
Part Three ‘Policies and internal actions of the Union’
Title V TFEU ‘Area of freedom, security and justice’
Chapter 5 ‘Police cooperation’
Article 89 TFEU
(ex Article 32 TEU)
The Council, acting in accordance with a special legislative procedure, shall lay down the conditions and limitations under which the competent authorities of the Member States referred to in Articles 82 and 87 may operate in the territory of another Member State in liaison and in agreement with the authorities of that State. The Council shall act unanimously after consulting the European Parliament.
***
In Article 2, point 68, of the Treaty of Lisbon (ToL) the intergovernmental conference (IGC 2007) stated (OJ 17.12.2007 C 306/66):
POLICE COOPERATION
68) The following Chapter 5 and Articles 69 F, 69 G and 69 H shall be inserted. Articles 69 F and
69 G shall replace the current Article 30 of the Treaty on European Union, and Article 69 H
shall replace Article 32 thereof, as set out above in point 51 of Article 1 of this Treaty: …
The treaty then presented the text of Article 69h TFEU (ToL) as above, but in the consolidated version the Article and the provisions referred to were renumbered according to the TFEU table of equivalences (page 210). Article 69h TFEU (ToL) became Article 89 TFEU.
***
The current Article 32 of the Treaty on European Union (TEU) belongs to the intergovernmental third pillar, in Title VI ‘Provisions on police and judicial cooperation in criminal matters’. The provision, to be replaced, is found in the latest consolidated version of the treaties in force (OJ 29.12.2006 C 321 E/26):
Article 32 TEU
The Council shall lay down the conditions and limitations under which the competent authorities referred to in Articles 30 and 31 may operate in the territory of another Member State in liaison and in agreement with the authorities of that State.
***
We look at the previous stages of the treaty reform process.
The European Convention proposed a unified treaty, which would have abolished the pillar structure, but not all the intergovernmental practices. Under Section 5 ‘Police cooperation’, Article III-178 of the draft Treaty establishing a Constitution for Europe continued in the footsteps of Article 32 TEU (OJ 18.7.2003 C 169/61):
Article III-178 Draft Constitution
A European law or framework law of the Council of Ministers shall lay down the conditions and limitations under which the competent authorities of the Member States referred to in Articles III-171 and III-176 may operate in the territory of another Member State in liaison and in agreement with the authorities of that State. The Council of Ministers shall act unanimously after consulting the European Parliament.
***
The corresponding provision is Article III-277 of the Treaty establishing a Constitution for Europe. The ‘Council of Ministers’ became the ‘Council’ in the Constitutional Treaty, and the Articles referred to were numbered differently, but the rest of the wording was identical to the draft (OJ 16.12.2004 C 310/122).
***
The Treaty of Lisbon uses different terms for legislative instruments, but the essence of Article 89 TFEU remains exactly the same as in the Constitution and thus the draft Constitution before that.
Materially, the new provision takes over the contents of the current Article 32 TEU.
***
United Kingdom
We turn to additional comments and further reading on Europol. First, short comments from Great Britain, and then UK sources where these questions may be dealt with more extensively.
In the Statewatch analysis ‘EU Reform Treaty: Analysis 1: Version 3 JHA provisions’ (22 October 2007), Steve Peers commented on what was to become Article 69h TFEU (ToL), Article 89 TFEU (page 21):
“This is identical to the current Article 32 TEU.”
The JHA analysis and other useful Statewatch analyses are available through:
http://www.statewatch.org/euconstitution.htm
***
The Foreign and Commonwealth Office (FCO) in its convenient source of brief annotations on Lisbon Treaty amendments in ‘A comparative table of the current EC and EU treaties as amended by the Treaty of Lisbon’ (Command Paper 7311, published 21 January 2008), presented the following summary of the results with regard to Article 89 TFEU, Article 69h TFEU (ToL) in the original Lisbon Treaty:
“In substance the same as Article 32 TEU.”
The FCO comparative table is available at:
http://www.official-documents.gov.uk/document/cm73/7311/7311.asp
***
The UK House of Commons Library Research Paper 07/86 ‘The Treaty of Lisbon: amendments to the Treaty establishing the European Community’ (published 6 December 2007) dedicates pages 48 to 52 to a presentation of ‘Police cooperation’.
Papers like this tend to concentrate on changes, so the coming Article 89 TFEU is dealt with summarily (page 52):
“Article 69H (Constitution Article III-277), on operations on the territory of another Member State, largely reproduces the wording of the present Article 32 TEU, which is subject to unanimity and consultation with the EP.”
The Library Research Paper 07/86 is available at:
http://www.parliament.uk/commons/lib/research/rp2007/rp07-086.pdf
***
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 ‘Police and judicial cooperation in criminal matters’ at length in Chapter 6 (from page 139), but I failed to find any mention of Article 89 TFEU.
The report is accessible at:
http://www.publications.parliament.uk/pa/ld200708/ldselect/ldeucom/62/62.pdf
***
Sweden
Even the systematic Nordic governments find fairly little to say about a provision, which remains within the ambit of intergovernmental legislation, essentially unchanged.
The consultation paper of the government of Sweden, ‘Lissabonfördraget; Statsrådsberedningen, Departementsserien (Ds), Ds 2007:48’ published 20 December 2007, has a headline ‘Agerande på en annan medlemsstats territorium’ (page 330). The text describes rule-making based on unanimity concerning operations by the authorities engaged in judicial cooperation in criminal matters and police cooperation in the territory of another member state.
The paper refers to the rules on ‘hot pursuit’ in the Schengen acquis, and to the special provision concerning Europol.
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), describes Article 69h TFEU (ToL), renumbered Article 89 TFEU (page 205).
The Finnish ratification 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), presents the same explanation on page 208.
The ratification bill in Swedish can be accessed at:
http://www.finlex.fi/sv/esitykset/he/2008/20080023.pdf
***
A few additional comments on operations in the territory of another member state.
Article 89 TFEU applies to the competent authorities of the member states referred to in Articles 82 and 87.
Article 82 TFEU concerns judicial cooperation in criminal matters, and in 82(1)(d) the expression ‘judicial or equivalent authorities’ is used.
Article 87 TFEU regards police cooperation, including police, customs and other specialised law enforcement services.
With or without common rules (conditions and limitations), operations in the territory would anyhow be subject to some minimum consent by that state (in liaison and in agreement with the authorities of that state).
We may find some consolation in the relevant document of the European Convention (CONV 614/03, Annex, page 33):
“Council unanimity and consultation of the European Parliament are provided for. Of course, neither this article, no[r] the other articles under this Title, aim to prevent those Member States which so desire from concluding bilateral agreements providing for closer cooperation between their respective authorities.”
Ralf Grahn
Here the EU Treaty of Lisbon does nothing to upset the sensibilities of member states or organised crime.
***
Article 89 of the Treaty on the Functioning of the European Union (TFEU) lays out the special legislative procedure for operating in the territory of another member state. The Article is found in the consolidated version of the Treaty on European Union and the Treaty on the Functioning of the European Union, published in the Official Journal of the European Union, OJ 9.5.2008 C 115/84. The location of the provision is added from the TFEU table of equivalences (page 368–371):
Part Three ‘Policies and internal actions of the Union’
Title V TFEU ‘Area of freedom, security and justice’
Chapter 5 ‘Police cooperation’
Article 89 TFEU
(ex Article 32 TEU)
The Council, acting in accordance with a special legislative procedure, shall lay down the conditions and limitations under which the competent authorities of the Member States referred to in Articles 82 and 87 may operate in the territory of another Member State in liaison and in agreement with the authorities of that State. The Council shall act unanimously after consulting the European Parliament.
***
In Article 2, point 68, of the Treaty of Lisbon (ToL) the intergovernmental conference (IGC 2007) stated (OJ 17.12.2007 C 306/66):
POLICE COOPERATION
68) The following Chapter 5 and Articles 69 F, 69 G and 69 H shall be inserted. Articles 69 F and
69 G shall replace the current Article 30 of the Treaty on European Union, and Article 69 H
shall replace Article 32 thereof, as set out above in point 51 of Article 1 of this Treaty: …
The treaty then presented the text of Article 69h TFEU (ToL) as above, but in the consolidated version the Article and the provisions referred to were renumbered according to the TFEU table of equivalences (page 210). Article 69h TFEU (ToL) became Article 89 TFEU.
***
The current Article 32 of the Treaty on European Union (TEU) belongs to the intergovernmental third pillar, in Title VI ‘Provisions on police and judicial cooperation in criminal matters’. The provision, to be replaced, is found in the latest consolidated version of the treaties in force (OJ 29.12.2006 C 321 E/26):
Article 32 TEU
The Council shall lay down the conditions and limitations under which the competent authorities referred to in Articles 30 and 31 may operate in the territory of another Member State in liaison and in agreement with the authorities of that State.
***
We look at the previous stages of the treaty reform process.
The European Convention proposed a unified treaty, which would have abolished the pillar structure, but not all the intergovernmental practices. Under Section 5 ‘Police cooperation’, Article III-178 of the draft Treaty establishing a Constitution for Europe continued in the footsteps of Article 32 TEU (OJ 18.7.2003 C 169/61):
Article III-178 Draft Constitution
A European law or framework law of the Council of Ministers shall lay down the conditions and limitations under which the competent authorities of the Member States referred to in Articles III-171 and III-176 may operate in the territory of another Member State in liaison and in agreement with the authorities of that State. The Council of Ministers shall act unanimously after consulting the European Parliament.
***
The corresponding provision is Article III-277 of the Treaty establishing a Constitution for Europe. The ‘Council of Ministers’ became the ‘Council’ in the Constitutional Treaty, and the Articles referred to were numbered differently, but the rest of the wording was identical to the draft (OJ 16.12.2004 C 310/122).
***
The Treaty of Lisbon uses different terms for legislative instruments, but the essence of Article 89 TFEU remains exactly the same as in the Constitution and thus the draft Constitution before that.
Materially, the new provision takes over the contents of the current Article 32 TEU.
***
United Kingdom
We turn to additional comments and further reading on Europol. First, short comments from Great Britain, and then UK sources where these questions may be dealt with more extensively.
In the Statewatch analysis ‘EU Reform Treaty: Analysis 1: Version 3 JHA provisions’ (22 October 2007), Steve Peers commented on what was to become Article 69h TFEU (ToL), Article 89 TFEU (page 21):
“This is identical to the current Article 32 TEU.”
The JHA analysis and other useful Statewatch analyses are available through:
http://www.statewatch.org/euconstitution.htm
***
The Foreign and Commonwealth Office (FCO) in its convenient source of brief annotations on Lisbon Treaty amendments in ‘A comparative table of the current EC and EU treaties as amended by the Treaty of Lisbon’ (Command Paper 7311, published 21 January 2008), presented the following summary of the results with regard to Article 89 TFEU, Article 69h TFEU (ToL) in the original Lisbon Treaty:
“In substance the same as Article 32 TEU.”
The FCO comparative table is available at:
http://www.official-documents.gov.uk/document/cm73/7311/7311.asp
***
The UK House of Commons Library Research Paper 07/86 ‘The Treaty of Lisbon: amendments to the Treaty establishing the European Community’ (published 6 December 2007) dedicates pages 48 to 52 to a presentation of ‘Police cooperation’.
Papers like this tend to concentrate on changes, so the coming Article 89 TFEU is dealt with summarily (page 52):
“Article 69H (Constitution Article III-277), on operations on the territory of another Member State, largely reproduces the wording of the present Article 32 TEU, which is subject to unanimity and consultation with the EP.”
The Library Research Paper 07/86 is available at:
http://www.parliament.uk/commons/lib/research/rp2007/rp07-086.pdf
***
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 ‘Police and judicial cooperation in criminal matters’ at length in Chapter 6 (from page 139), but I failed to find any mention of Article 89 TFEU.
The report is accessible at:
http://www.publications.parliament.uk/pa/ld200708/ldselect/ldeucom/62/62.pdf
***
Sweden
Even the systematic Nordic governments find fairly little to say about a provision, which remains within the ambit of intergovernmental legislation, essentially unchanged.
The consultation paper of the government of Sweden, ‘Lissabonfördraget; Statsrådsberedningen, Departementsserien (Ds), Ds 2007:48’ published 20 December 2007, has a headline ‘Agerande på en annan medlemsstats territorium’ (page 330). The text describes rule-making based on unanimity concerning operations by the authorities engaged in judicial cooperation in criminal matters and police cooperation in the territory of another member state.
The paper refers to the rules on ‘hot pursuit’ in the Schengen acquis, and to the special provision concerning Europol.
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), describes Article 69h TFEU (ToL), renumbered Article 89 TFEU (page 205).
The Finnish ratification 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), presents the same explanation on page 208.
The ratification bill in Swedish can be accessed at:
http://www.finlex.fi/sv/esitykset/he/2008/20080023.pdf
***
A few additional comments on operations in the territory of another member state.
Article 89 TFEU applies to the competent authorities of the member states referred to in Articles 82 and 87.
Article 82 TFEU concerns judicial cooperation in criminal matters, and in 82(1)(d) the expression ‘judicial or equivalent authorities’ is used.
Article 87 TFEU regards police cooperation, including police, customs and other specialised law enforcement services.
With or without common rules (conditions and limitations), operations in the territory would anyhow be subject to some minimum consent by that state (in liaison and in agreement with the authorities of that state).
We may find some consolation in the relevant document of the European Convention (CONV 614/03, Annex, page 33):
“Council unanimity and consultation of the European Parliament are provided for. Of course, neither this article, no[r] the other articles under this Title, aim to prevent those Member States which so desire from concluding bilateral agreements providing for closer cooperation between their respective authorities.”
Ralf Grahn
Monday, 12 May 2008
EU TFEU: Europol II
Blogosphere epidemics, such as fantasies about the European Union re-introducing the death penalty, or invasions of liberty-squashing armies of Europol or gendarmerie forces, are hard to stem or cure, since their authors seem absolutely oblivious of or resistant to facts.
After the personal musings in the first part, let cooler minds don the armour of a known personage from La Mancha, in the hope that some citizens are willing to listen to reason. We can deal with only one question at a time, so let us return to the theme of the first post:
What does the EU Treaty of Lisbon say about Europol, the European Police Office?
Then, there is another interesting question. Is it fair or wise if the governments of the member states try to rush through new legislation on Europol and Eurojust in order to evade transparency, co-decision and public debate about to be introduced when the Lisbon Treaty, already signed, enters into force?
***
United Kingdom
We turn to additional comments and further reading on Europol. First, short comments from Great Britain, and then UK sources where these questions are dealt with extensively.
In the Statewatch analysis ‘EU Reform Treaty: Analysis 1: Version 3 JHA provisions’ (22 October 2007), Steve Peers commented on what was to become Article 69g TFEU (ToL), Article 88 TFEU (page 21):
“The voting procedure is QMV and co-decision, a change from the present unanimity and consultation.”
The JHA analysis and other useful Statewatch analyses are available through:
http://www.statewatch.org/euconstitution.htm
***
The Foreign and Commonwealth Office (FCO) in its convenient source of brief annotations on Lisbon Treaty amendments in ‘A comparative table of the current EC and EU treaties as amended by the Treaty of Lisbon’ (Command Paper 7311, published 21 January 2008), presented the following summary of the results with regard to Article 88 TFEU, Article 69g TFEU (ToL) in the original Lisbon Treaty:
“Draws on Article 30(2) TEU. New provision on Europol’s mission. Co-decision for regulations on Europol’s structure, operation, field of action and tasks. Any operational action by Europol requires agreement of Member State concerned, and coercive measures are reserved to national authorities.”
The FCO comparative table is available at:
http://www.official-documents.gov.uk/document/cm73/7311/7311.asp
***
The UK House of Commons Library Research Paper 07/86 ‘The Treaty of Lisbon: amendments to the Treaty establishing the European Community’ (published 6 December 2007) dedicates pages 48 to 52 to a presentation of ‘Police cooperation’. Most of the text concerns Europol, and it presents earlier British views about placing Europol on a new legal footing (before the Lisbon Reform Treaty), extending its mandate and the lack of parliamentary scrutiny. The Research Paper refers to additional sources.
The Library Research Paper 07/86 is available at:
http://www.parliament.uk/commons/lib/research/rp2007/rp07-086.pdf
My comment: The Lisbon Treaty would remedy (legal footing) or at least promise to diminish (parliamentary scrutiny) most of the shortcomings mentioned in the Research Paper. At this point, I would not be ready to pronounce on how much Europol would need to improve on its promising beginnings (and the tepid cooperation it reportedly gets from some member states’ governments) and if there is a real need to extend the mandate of Europol in coming secondary legislation.
***
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 ‘Police and judicial cooperation in criminal matters’ at length in Chapter 6 (from page 139).
The heading ‘Europol’ is found on page 155 and the discussion continues on page 156. The Committee present a short background to the current Europol Convention, and describes the efforts of member states’ governments to rush through a Council Decision to define the powers of Europol. The Committee concludes (page 156):
“6.226. The reason for urgently continuing the current negotiations on the proposed Decision is, we assume, to prevent the European Parliament having powers of co-decision in relation to the constitution and functions of Europol as an agency. We regard it as unfortunate that the Member States should be attempting to override the effect of a provision of a Treaty they have just signed.”
The report is accessible at:
http://www.publications.parliament.uk/pa/ld200708/ldselect/ldeucom/62/62.pdf
My comment: Although the differences in the wording of the Europol mandate looked fairly small at a first glance, the modalities of parliamentary scrutiny would merit a closer look before a decision is taken. If a (relative) European consensus has existed, since the days of the European Convention, to move to co-decision and to improve parliamentary scrutiny, the governments could rather use their discretion to apply these principles early on than to go against the grain of and to forestall the reforms they have themselves signed up to.
***
Sweden
The consultation paper of the government of Sweden, ‘Lissabonfördraget; Statsrådsberedningen, Departementsserien (Ds), Ds 2007:48’ published 20 December 2007, under the headline ‘Europol’ (page 328 to 329) offers a fairly detailed description of the proposed Lisbon Treaty Article, but I failed to find any mention of an intent by the member states’ governments to intervene between the current Europol Convention and the future Regulation(s) based on co-decision and the promise of the Treaty of Lisbon.
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), offers a detailed description of Article 69g TFEU (ToL), renumbered Article 88 TFEU (pages 204–205).
The Finnish ratification bill includes the remark that the Council, on the basis of the current treaty, is preparing to change the legal basis of Europol into a Decision instead of the present Convention, in the same manner as concerning Eurojust. The intent of the Council is to agree on the matter before the end of June 2008 (page 204).
The Finnish ratification 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), presents the same detailed explanations on pages 207.
Since a few more readers may understand Swedish than Finnish, I render the remark I described above on the Europol and Eurojust Decisions being finalised in the form of an exact quote (page 207):
“Rådet bereder med stöd av gällande unionsfördrag en ändring av rättsgrunden för Europol från konvention till rådets beslut, på samma sätt som i fråga om Eurojust. Målet är att rådet ska godkänna detta beslut före utgången av juni 2008.”
The ratification bill in Swedish can be accessed at:
http://www.finlex.fi/sv/esitykset/he/2008/20080023.pdf
My comment: While I am open to the need to enhance European level action to combat serious transnational crime, the Council should take heed of the principles of propriety, transparency, full debate and enhanced parliamentary scrutiny, in accordance with the Lisbon Treaty already ahead of its entry into force.
Here the European Parliament and the national parliaments (COSAC) have an opportunity to test their contribution to the good functioning of the European Union.
Ralf Grahn
After the personal musings in the first part, let cooler minds don the armour of a known personage from La Mancha, in the hope that some citizens are willing to listen to reason. We can deal with only one question at a time, so let us return to the theme of the first post:
What does the EU Treaty of Lisbon say about Europol, the European Police Office?
Then, there is another interesting question. Is it fair or wise if the governments of the member states try to rush through new legislation on Europol and Eurojust in order to evade transparency, co-decision and public debate about to be introduced when the Lisbon Treaty, already signed, enters into force?
***
United Kingdom
We turn to additional comments and further reading on Europol. First, short comments from Great Britain, and then UK sources where these questions are dealt with extensively.
In the Statewatch analysis ‘EU Reform Treaty: Analysis 1: Version 3 JHA provisions’ (22 October 2007), Steve Peers commented on what was to become Article 69g TFEU (ToL), Article 88 TFEU (page 21):
“The voting procedure is QMV and co-decision, a change from the present unanimity and consultation.”
The JHA analysis and other useful Statewatch analyses are available through:
http://www.statewatch.org/euconstitution.htm
***
The Foreign and Commonwealth Office (FCO) in its convenient source of brief annotations on Lisbon Treaty amendments in ‘A comparative table of the current EC and EU treaties as amended by the Treaty of Lisbon’ (Command Paper 7311, published 21 January 2008), presented the following summary of the results with regard to Article 88 TFEU, Article 69g TFEU (ToL) in the original Lisbon Treaty:
“Draws on Article 30(2) TEU. New provision on Europol’s mission. Co-decision for regulations on Europol’s structure, operation, field of action and tasks. Any operational action by Europol requires agreement of Member State concerned, and coercive measures are reserved to national authorities.”
The FCO comparative table is available at:
http://www.official-documents.gov.uk/document/cm73/7311/7311.asp
***
The UK House of Commons Library Research Paper 07/86 ‘The Treaty of Lisbon: amendments to the Treaty establishing the European Community’ (published 6 December 2007) dedicates pages 48 to 52 to a presentation of ‘Police cooperation’. Most of the text concerns Europol, and it presents earlier British views about placing Europol on a new legal footing (before the Lisbon Reform Treaty), extending its mandate and the lack of parliamentary scrutiny. The Research Paper refers to additional sources.
The Library Research Paper 07/86 is available at:
http://www.parliament.uk/commons/lib/research/rp2007/rp07-086.pdf
My comment: The Lisbon Treaty would remedy (legal footing) or at least promise to diminish (parliamentary scrutiny) most of the shortcomings mentioned in the Research Paper. At this point, I would not be ready to pronounce on how much Europol would need to improve on its promising beginnings (and the tepid cooperation it reportedly gets from some member states’ governments) and if there is a real need to extend the mandate of Europol in coming secondary legislation.
***
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 ‘Police and judicial cooperation in criminal matters’ at length in Chapter 6 (from page 139).
The heading ‘Europol’ is found on page 155 and the discussion continues on page 156. The Committee present a short background to the current Europol Convention, and describes the efforts of member states’ governments to rush through a Council Decision to define the powers of Europol. The Committee concludes (page 156):
“6.226. The reason for urgently continuing the current negotiations on the proposed Decision is, we assume, to prevent the European Parliament having powers of co-decision in relation to the constitution and functions of Europol as an agency. We regard it as unfortunate that the Member States should be attempting to override the effect of a provision of a Treaty they have just signed.”
The report is accessible at:
http://www.publications.parliament.uk/pa/ld200708/ldselect/ldeucom/62/62.pdf
My comment: Although the differences in the wording of the Europol mandate looked fairly small at a first glance, the modalities of parliamentary scrutiny would merit a closer look before a decision is taken. If a (relative) European consensus has existed, since the days of the European Convention, to move to co-decision and to improve parliamentary scrutiny, the governments could rather use their discretion to apply these principles early on than to go against the grain of and to forestall the reforms they have themselves signed up to.
***
Sweden
The consultation paper of the government of Sweden, ‘Lissabonfördraget; Statsrådsberedningen, Departementsserien (Ds), Ds 2007:48’ published 20 December 2007, under the headline ‘Europol’ (page 328 to 329) offers a fairly detailed description of the proposed Lisbon Treaty Article, but I failed to find any mention of an intent by the member states’ governments to intervene between the current Europol Convention and the future Regulation(s) based on co-decision and the promise of the Treaty of Lisbon.
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), offers a detailed description of Article 69g TFEU (ToL), renumbered Article 88 TFEU (pages 204–205).
The Finnish ratification bill includes the remark that the Council, on the basis of the current treaty, is preparing to change the legal basis of Europol into a Decision instead of the present Convention, in the same manner as concerning Eurojust. The intent of the Council is to agree on the matter before the end of June 2008 (page 204).
The Finnish ratification 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), presents the same detailed explanations on pages 207.
Since a few more readers may understand Swedish than Finnish, I render the remark I described above on the Europol and Eurojust Decisions being finalised in the form of an exact quote (page 207):
“Rådet bereder med stöd av gällande unionsfördrag en ändring av rättsgrunden för Europol från konvention till rådets beslut, på samma sätt som i fråga om Eurojust. Målet är att rådet ska godkänna detta beslut före utgången av juni 2008.”
The ratification bill in Swedish can be accessed at:
http://www.finlex.fi/sv/esitykset/he/2008/20080023.pdf
My comment: While I am open to the need to enhance European level action to combat serious transnational crime, the Council should take heed of the principles of propriety, transparency, full debate and enhanced parliamentary scrutiny, in accordance with the Lisbon Treaty already ahead of its entry into force.
Here the European Parliament and the national parliaments (COSAC) have an opportunity to test their contribution to the good functioning of the European Union.
Ralf Grahn
EU TFEU: Europol I
The EU Treaty of Lisbon incorporates the foundations of Europol – the European Police Office – into the Treaty on the Functioning of the European Union (TFEU).
The ordinary legislative procedure, with qualified majority voting in the Council and co-decision by the European Parliament, will apply instead of the current intergovernmental convention-based cooperation. Scrutiny by the European Parliament and national parliaments is enhanced.
But, is Europol an armed villain ready to pounce on our cherished liberties, or is it potentially hampered by the limitations imposed by the member states?
***
Article 88 of the Treaty on the Functioning of the European Union (TFEU) lays out Europol’s mission to support and strengthen action by the EU member states’ police authorities. The Article is found in the consolidated version of the Treaty on European Union and the Treaty on the Functioning of the European Union, now published in the Official Journal of the European Union, OJ 9.5.2008 C 115/84. The location of the provision is added from the TFEU table of equivalences (page 368–371):
Part Three ‘Policies and internal actions of the Union’
Title V TFEU ‘Area of freedom, security and justice’
Chapter 5 ‘Police cooperation’
Article 88 TFEU
(ex Article 30 TEU)
1. Europol's mission shall be to support and strengthen action by the Member States' police authorities and other law enforcement services and their mutual cooperation in preventing and combating serious crime affecting two or more Member States, terrorism and forms of crime which affect a common interest covered by a Union policy.
2. The European Parliament and the Council, by means of regulations adopted in accordance with the ordinary legislative procedure, shall determine Europol's structure, operation, field of action and tasks. These tasks may include:
(a) the collection, storage, processing, analysis and exchange of information, in particular that forwarded by the authorities of the Member States or third countries or bodies;
(b) the coordination, organisation and implementation of investigative and operational action carried out jointly with the Member States' competent authorities or in the context of joint investigative teams, where appropriate in liaison with Eurojust.
These regulations shall also lay down the procedures for scrutiny of Europol's activities by the European Parliament, together with national Parliaments.
3. Any operational action by Europol must be carried out in liaison and in agreement with the authorities of the Member State or States whose territory is concerned. The application of coercive measures shall be the exclusive responsibility of the competent national authorities.
***
In Article 2, point 68, of the Treaty of Lisbon (ToL) the intergovernmental conference (IGC 2007) stated (OJ 17.12.2007 C 306/66):
POLICE COOPERATION
68) The following Chapter 5 and Articles 69 F, 69 G and 69 H shall be inserted. Articles 69 F and 69 G shall replace the current Article 30 of the Treaty on European Union, and Article 69 H shall replace Article 32 thereof, as set out above in point 51 of Article 1 of this Treaty: …
The IGC 2007 then laid out the text of Article 69g TFEU (ToL) as above. After renumbering this provision became Article 88 TFEU in the consolidated version. Cf. ToL table of equivalences, OJ 17.12.2007 C 306/210.
***
The current Article 30 of the Treaty on European Union (TEU) belongs to the intergovernmental third pillar, in Title VI ‘Provisions on police and judicial cooperation in criminal matters’. The provision, to be replaced, is found in the latest consolidated version of the treaties in force (OJ 29.12.2006 C 321 E/24–25):
Article 30 TEU
1. Common action in the field of police cooperation shall include:
(a) operational cooperation between the competent authorities, including the police, customs and other specialised law enforcement services of the Member States in relation to the prevention, detection and investigation of criminal offences;
(b) the collection, storage, processing, analysis and exchange of relevant information, including information held by law enforcement services on reports on suspicious financial transactions, in particular through Europol, subject to appropriate provisions on the protection of personal data;
(c) cooperation and joint initiatives in training, the exchange of liaison officers, secondments, the use of equipment, and forensic research;
(d) the common evaluation of particular investigative techniques in relation to the detection of serious forms of organised crime.
2. The Council shall promote cooperation through Europol and shall in particular, within a period of five years after the date of entry into force of the Treaty of Amsterdam:
(a) enable Europol to facilitate and support the preparation, and to encourage the coordination and carrying out, of specific investigative actions by the competent authorities of the Member States, including operational actions of joint teams comprising representatives of Europol in a support capacity;
(b) adopt measures allowing Europol to ask the competent authorities of the Member States to conduct and coordinate their investigations in specific cases and to develop specific expertise which may be put at the disposal of Member States to assist them in investigating cases of organised crime;
(c) promote liaison arrangements between prosecuting/investigating officials specialising in the fight against organised crime in close cooperation with Europol;
(d) establish a research, documentation and statistical network on cross-border crime.
***
We look at the previous stages of the treaty reform process.
The European Convention proposed a unified treaty, which would have abolished the pillar structure. Under Section 5 ‘Police cooperation’, Article III-177 of the draft Treaty establishing a Constitution for Europe was meant to replace the provisions on Europol (OJ 18.7.2003 C 169/61).
In substance, Article III-177 laid the foundations for the later stages of the treaty reform process. The only differences between the draft Constitution and the Lisbon Treaty TFEU are either ones of general terminology or stylistic, so I leave it to the interested reader to look up the draft text if needed.
***
The IGC 2004 adopted the text of the European Convention without change.
The corresponding provision is Article III-276 of the Treaty establishing a Constitution for Europe (OJ 16.12.2004 C 310/122).
***
The provision on Europol was, in essence, written by the European Convention, with the ordinary legislative procedure, including the application of qualified majority voting (QMV) in the Council and co-decision by the European Parliament. The European Convention also held out the promise of scrutiny by the European Parliament and national parliaments.
The result was adopted by, first the IGC 2004 and then the IGC 2007, with minimal modifications.
***
Almost every provision on EU powers, including the one on Europol, has led to spates of ‘creative’ writing in the blogosphere, where counterfactual allegations have been brandished as gospel truth, on the sole authority of previous ill-informed (or worse) writers. I have seldom or never seen writers of this kind of wild allegations retract their phantasms even if confronted with undeniable facts.
Therefore, it falls to citizens to try to find and to evaluate more objective (but often sadly dull) information about realities.
For instance, with a cool head, read the third paragraph of Article 88 TFEU. Is it likely that we are going to be ‘invaded’ by armed teams of foreign police aiming to crush our liberties?
The member states have, in my view, severely limited the action of Europol. Any operational action by Europol must be carried out in liaison and in agreement with the authorities of the Member State or States whose territory is concerned.
In liaison and agreement with the national authorities. Do ‘invading’ hordes ask for permission?
The application of coercive measures shall be the exclusive responsibility of the competent national authorities.
Force is the sole responsibility of the member states. How can you square this with invading armies?
***
Would it be amiss for a European citizen to ask if the restrictions are not a high price to pay for member states’ sensitivities?
We could start with the assumption that most citizens of good regard an effective combat against serious crime as important for their own and their society’s security and prosperity.
We know that the free movement for all within the EU regrettably makes it easier for serious crime to spread across borders.
We also know that corruption and organised crime are deeply entrenched in some member states, including old ones, and in some prospective members.
If these assumptions are correct, can we be sure that a Europol cast in a supportive role and dependent on the good will of the member states’ authorities is going to be able to perform effectively, without being frustrated in its efforts by corrupt forces?
And, if crime and mystery is the field where the important questions for European citizens are to be decided, would it not be better to look towards Eliot Ness and “The Untouchables” than at fantasies about invading aliens?
Ralf Grahn
The ordinary legislative procedure, with qualified majority voting in the Council and co-decision by the European Parliament, will apply instead of the current intergovernmental convention-based cooperation. Scrutiny by the European Parliament and national parliaments is enhanced.
But, is Europol an armed villain ready to pounce on our cherished liberties, or is it potentially hampered by the limitations imposed by the member states?
***
Article 88 of the Treaty on the Functioning of the European Union (TFEU) lays out Europol’s mission to support and strengthen action by the EU member states’ police authorities. The Article is found in the consolidated version of the Treaty on European Union and the Treaty on the Functioning of the European Union, now published in the Official Journal of the European Union, OJ 9.5.2008 C 115/84. The location of the provision is added from the TFEU table of equivalences (page 368–371):
Part Three ‘Policies and internal actions of the Union’
Title V TFEU ‘Area of freedom, security and justice’
Chapter 5 ‘Police cooperation’
Article 88 TFEU
(ex Article 30 TEU)
1. Europol's mission shall be to support and strengthen action by the Member States' police authorities and other law enforcement services and their mutual cooperation in preventing and combating serious crime affecting two or more Member States, terrorism and forms of crime which affect a common interest covered by a Union policy.
2. The European Parliament and the Council, by means of regulations adopted in accordance with the ordinary legislative procedure, shall determine Europol's structure, operation, field of action and tasks. These tasks may include:
(a) the collection, storage, processing, analysis and exchange of information, in particular that forwarded by the authorities of the Member States or third countries or bodies;
(b) the coordination, organisation and implementation of investigative and operational action carried out jointly with the Member States' competent authorities or in the context of joint investigative teams, where appropriate in liaison with Eurojust.
These regulations shall also lay down the procedures for scrutiny of Europol's activities by the European Parliament, together with national Parliaments.
3. Any operational action by Europol must be carried out in liaison and in agreement with the authorities of the Member State or States whose territory is concerned. The application of coercive measures shall be the exclusive responsibility of the competent national authorities.
***
In Article 2, point 68, of the Treaty of Lisbon (ToL) the intergovernmental conference (IGC 2007) stated (OJ 17.12.2007 C 306/66):
POLICE COOPERATION
68) The following Chapter 5 and Articles 69 F, 69 G and 69 H shall be inserted. Articles 69 F and 69 G shall replace the current Article 30 of the Treaty on European Union, and Article 69 H shall replace Article 32 thereof, as set out above in point 51 of Article 1 of this Treaty: …
The IGC 2007 then laid out the text of Article 69g TFEU (ToL) as above. After renumbering this provision became Article 88 TFEU in the consolidated version. Cf. ToL table of equivalences, OJ 17.12.2007 C 306/210.
***
The current Article 30 of the Treaty on European Union (TEU) belongs to the intergovernmental third pillar, in Title VI ‘Provisions on police and judicial cooperation in criminal matters’. The provision, to be replaced, is found in the latest consolidated version of the treaties in force (OJ 29.12.2006 C 321 E/24–25):
Article 30 TEU
1. Common action in the field of police cooperation shall include:
(a) operational cooperation between the competent authorities, including the police, customs and other specialised law enforcement services of the Member States in relation to the prevention, detection and investigation of criminal offences;
(b) the collection, storage, processing, analysis and exchange of relevant information, including information held by law enforcement services on reports on suspicious financial transactions, in particular through Europol, subject to appropriate provisions on the protection of personal data;
(c) cooperation and joint initiatives in training, the exchange of liaison officers, secondments, the use of equipment, and forensic research;
(d) the common evaluation of particular investigative techniques in relation to the detection of serious forms of organised crime.
2. The Council shall promote cooperation through Europol and shall in particular, within a period of five years after the date of entry into force of the Treaty of Amsterdam:
(a) enable Europol to facilitate and support the preparation, and to encourage the coordination and carrying out, of specific investigative actions by the competent authorities of the Member States, including operational actions of joint teams comprising representatives of Europol in a support capacity;
(b) adopt measures allowing Europol to ask the competent authorities of the Member States to conduct and coordinate their investigations in specific cases and to develop specific expertise which may be put at the disposal of Member States to assist them in investigating cases of organised crime;
(c) promote liaison arrangements between prosecuting/investigating officials specialising in the fight against organised crime in close cooperation with Europol;
(d) establish a research, documentation and statistical network on cross-border crime.
***
We look at the previous stages of the treaty reform process.
The European Convention proposed a unified treaty, which would have abolished the pillar structure. Under Section 5 ‘Police cooperation’, Article III-177 of the draft Treaty establishing a Constitution for Europe was meant to replace the provisions on Europol (OJ 18.7.2003 C 169/61).
In substance, Article III-177 laid the foundations for the later stages of the treaty reform process. The only differences between the draft Constitution and the Lisbon Treaty TFEU are either ones of general terminology or stylistic, so I leave it to the interested reader to look up the draft text if needed.
***
The IGC 2004 adopted the text of the European Convention without change.
The corresponding provision is Article III-276 of the Treaty establishing a Constitution for Europe (OJ 16.12.2004 C 310/122).
***
The provision on Europol was, in essence, written by the European Convention, with the ordinary legislative procedure, including the application of qualified majority voting (QMV) in the Council and co-decision by the European Parliament. The European Convention also held out the promise of scrutiny by the European Parliament and national parliaments.
The result was adopted by, first the IGC 2004 and then the IGC 2007, with minimal modifications.
***
Almost every provision on EU powers, including the one on Europol, has led to spates of ‘creative’ writing in the blogosphere, where counterfactual allegations have been brandished as gospel truth, on the sole authority of previous ill-informed (or worse) writers. I have seldom or never seen writers of this kind of wild allegations retract their phantasms even if confronted with undeniable facts.
Therefore, it falls to citizens to try to find and to evaluate more objective (but often sadly dull) information about realities.
For instance, with a cool head, read the third paragraph of Article 88 TFEU. Is it likely that we are going to be ‘invaded’ by armed teams of foreign police aiming to crush our liberties?
The member states have, in my view, severely limited the action of Europol. Any operational action by Europol must be carried out in liaison and in agreement with the authorities of the Member State or States whose territory is concerned.
In liaison and agreement with the national authorities. Do ‘invading’ hordes ask for permission?
The application of coercive measures shall be the exclusive responsibility of the competent national authorities.
Force is the sole responsibility of the member states. How can you square this with invading armies?
***
Would it be amiss for a European citizen to ask if the restrictions are not a high price to pay for member states’ sensitivities?
We could start with the assumption that most citizens of good regard an effective combat against serious crime as important for their own and their society’s security and prosperity.
We know that the free movement for all within the EU regrettably makes it easier for serious crime to spread across borders.
We also know that corruption and organised crime are deeply entrenched in some member states, including old ones, and in some prospective members.
If these assumptions are correct, can we be sure that a Europol cast in a supportive role and dependent on the good will of the member states’ authorities is going to be able to perform effectively, without being frustrated in its efforts by corrupt forces?
And, if crime and mystery is the field where the important questions for European citizens are to be decided, would it not be better to look towards Eliot Ness and “The Untouchables” than at fantasies about invading aliens?
Ralf Grahn
Sunday, 11 May 2008
EU TFEU: Police cooperation
In an era of cross-border crime, effective police cooperation is needed between the member states of the European Union. The Treaty of Lisbon applies qualified majority voting in the Council and the ordinary legislative procedure (co-decision) some measures contributing to the fight against crime.
Legislation for operational cooperation still demands unanimity in the Council, but a group of member states can more easily initiate enhanced cooperation within EU structures and procedures, although Schengen building measures are excluded.
***
Article 87 of the Treaty on the Functioning of the European Union (TFEU) starts a new Chapter 5 on police cooperation. The Article is found in the consolidated version of the Treaty on European Union and the Treaty on the Functioning of the European Union, now published in the Official Journal of the European Union, OJ 9.5.2008 C 115/83–84,. The location of the provision is added from the table of equivalences (page 368–371):
Part Three ‘Policies and internal actions of the Union’
Title V TFEU ‘Area of freedom, security and justice’
Chapter 5 ‘Police cooperation’
Article 87 TFEU
(ex Article 30 TEU)
1. The Union shall establish police cooperation involving all the Member States' competent authorities, including police, customs and other specialised law enforcement services in relation to the prevention, detection and investigation of criminal offences.
2. For the purposes of paragraph 1, the European Parliament and the Council, acting in accordance with the ordinary legislative procedure, may establish measures concerning:
(a) the collection, storage, processing, analysis and exchange of relevant information;
(b) support for the training of staff, and cooperation on the exchange of staff, on equipment and on research into crime-detection;
(c) common investigative techniques in relation to the detection of serious forms of organised crime.
3. The Council, acting in accordance with a special legislative procedure, may establish measures concerning operational cooperation between the authorities referred to in this Article. The Council shall act unanimously after consulting the European Parliament.
In case of the absence of unanimity in the Council, a group of at least nine Member States may request that the draft 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 nine Member States wish to establish enhanced cooperation on the basis of the draft 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 Article 20(2) of the Treaty on European Union and Article 329(1) of this Treaty shall be deemed to be granted and the provisions on enhanced cooperation shall apply.
The specific procedure provided for in the second and third subparagraphs shall not apply to acts which constitute a development of the Schengen acquis.
***
In Article 2, point 68, of the Treaty of Lisbon (ToL) the intergovernmental conference (IGC 2007) stated (OJ 17.12.2007 C 306/66):
POLICE COOPERATION
68) The following Chapter 5 and Articles 69 F, 69 G and 69 H shall be inserted. Articles 69 F and
69 G shall replace the current Article 30 of the Treaty on European Union, and Article 69 H
shall replace Article 32 thereof, as set out above in point 51 of Article 1 of this Treaty: …
Then followed the text (as above, bar the numbering of Articles referred to) of Article 69f TFEU (ToL), which was to become Article 87 TFEU in the consolidated version (pages 66–67).
***
The current Article 30 of the Treaty on European Union (TEU) belongs to the intergovernmental third pillar, in Title VI ‘Provisions on police and judicial cooperation in criminal matters’. The provision is found in the latest consolidated version of the treaties in force (OJ 29.12.2006 C 321 E/24–25):
Article 30 TEU
1. Common action in the field of police cooperation shall include:
(a) operational cooperation between the competent authorities, including the police, customs and other specialised law enforcement services of the Member States in relation to the prevention, detection and investigation of criminal offences;
(b) the collection, storage, processing, analysis and exchange of relevant information, including information held by law enforcement services on reports on suspicious financial transactions, in particular through Europol, subject to appropriate provisions on the protection of personal data;
(c) cooperation and joint initiatives in training, the exchange of liaison officers, secondments, the use of equipment, and forensic research;
(d) the common evaluation of particular investigative techniques in relation to the detection of serious forms of organised crime.
2. The Council shall promote cooperation through Europol and shall in particular, within a period of five years after the date of entry into force of the Treaty of Amsterdam:
(a) enable Europol to facilitate and support the preparation, and to encourage the coordination and carrying out, of specific investigative actions by the competent authorities of the Member States, including operational actions of joint teams comprising representatives of Europol in a support capacity;
(b) adopt measures allowing Europol to ask the competent authorities of the Member States to conduct and coordinate their investigations in specific cases and to develop specific expertise which may be put at the disposal of Member States to assist them in investigating cases of organised crime;
(c) promote liaison arrangements between prosecuting/investigating officials specialising in the fight against organised crime in close cooperation with Europol;
(d) establish a research, documentation and statistical network on cross-border crime.
***
We look at the previous stages of the treaty reform process.
The European Convention proposed a unified treaty, which would have abolished the pillar structure. Under Section 5 ‘Police cooperation’, measures on some aspects of police cooperation would have been taken according to the ordinary legislative procedure, meaning qualified majority voting (QMV) in the Council and co-decision by the European Parliament (pargraph 2). The measures for operational cooperation would have remained subject to unanimity in the Council and the European Parliament would only have been consulted (pargraph 3).
Here is Article III-176 of the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/61):
Section 5
Police cooperation
Article III-176 Draft Constitution
1. The Union shall establish police cooperation involving all the Member States' competent authorities, including police, customs and other specialised law enforcement services in relation to the prevention, detection and investigation of criminal offences.
2. To this end, European laws or framework laws may establish measures concerning:
(a) the collection, storage, processing, analysis and exchange of relevant information;
(b) support for the training of staff, and cooperation on the exchange of staff, on equipment and on research into crime-detection;
(c) common investigative techniques in relation to the detection of serious forms of organised crime.
3. A European law or framework law of the Council of Ministers may establish measures concerning operational cooperation between the authorities referred to in this Article. The Council of Ministers shall act unanimously after consulting the European Parliament.
***
The IGC 2004 adopted the text of the European Convention without substantial change.
This is the text of Article III-275 of the Treaty establishing a Constitution for Europe, almost identical to the draft (OJ 16.12.2004 C 310/121–122):
Section 5
Police cooperation
Article III-275 Constitution
1. The Union shall establish police cooperation involving all the Member States' competent authorities, including police, customs and other specialised law enforcement services in relation to the prevention, detection and investigation of criminal offences.
2. For the purposes of paragraph 1, European laws or framework laws may establish measures concerning:
(a) the collection, storage, processing, analysis and exchange of relevant information;
(b) support for the training of staff, and cooperation on the exchange of staff, on equipment and on research into crime‑detection;
(c) common investigative techniques in relation to the detection of serious forms of organised crime.
3. A European law or framework law of the Council may establish measures concerning operational cooperation between the authorities referred to in this Article. The Council shall act unanimously after consulting the European Parliament.
***
The provisions on judicial cooperation in criminal matters are generally based on the Constitutional Treaty, with the modifications introduced by the IGC 2007 Mandate (Council document 11218/07, point 19(l), page 8):
“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 mechanism enabling member states to go forward while allowing others not to participate was then duly detailed in point 2(d) of Annex 2 (page 16).
With regard to police cooperation, an additional subparagraph was added to the new text of paragraph 3, spelling out that the facilitated enhanced cooperation would not apply to acts which constitute a development of the Schengen acquis.
Given the determining influence of the IGC 2007 Mandate, in this and most other questions the intergovernmental conference was actually concluded before it started, leaving it to the specialist lawyers of the Council and the member states to wrap up the coming Lisbon Treaty technically before the agreed amendments could be signed in Lisbon, where the so called Reform Treaty became officially known as the Treaty of Lisbon.
According to the Treaty of Lisbon, it will be easier for a group of states to establish enhanced cooperation, letting other members bide their time. Enhanced cooperation means that new steps can be taken within the structures of the European Union, although the adopted measures apply to only the participating member states.
If enhanced cooperation is either unavailable or deemed to be too cumbersome, willing and able member states have opted for treaties outside EU structures and procedures, such as the origins of the Schengen, Dublin and Prüm conventions.
***
United Kingdom
We turn to additional comments and further reading on EU police cooperation. First, short comments from Great Britain, and then UK sources where these questions are dealt with extensively.
In the Statewatch analysis ‘EU Reform Treaty: Analysis 1: Version 3 JHA provisions’ (22 October 2007), Steve Peers commented on what was to become Article 69f TFEU (ToL), Article 87 TFEU (page 20):
“Paragraph 2, but not paragraph 3, will be subject to QMV and co-decision, a change from the present unanimity and consultation.”
“The new provisions in the draft Reform Treaty provide for the possibility of a group of Member States applying a ‘flexibility’ procedure in the event of a veto by one or more Member States. This is again distinct from the separate power of the UK, Ireland and Denmark to opt out of proposals at the outset. Note that the new provisions do not apply to paragraph 2.”
The JHA analysis and other useful Statewatch analyses are available through:
http://www.statewatch.org/euconstitution.htm
***
The Foreign and Commonwealth Office (FCO) published another convenient source of brief annotations on Lisbon Treaty amendments in ‘A comparative table of the current EC and EU treaties as amended by the Treaty of Lisbon’ (Command Paper 7311, published 21 January 2008), offering the following summary of the results with regard to Article 87 TFEU, Article 69f TFEU (ToL) in the original Lisbon Treaty:
“Draws on Article 30(1) TEU. Co-decision for certain measures, but operational cooperation measures require unanimity in the Council and EP consultation.”
The FCO comparative table is available at:
http://www.official-documents.gov.uk/document/cm73/7311/7311.asp
***
The UK House of Commons Library Research Paper 07/86 ‘The Treaty of Lisbon: amendments to the Treaty establishing the European Community’ (published 6 December 2007) dedicates pages 48 to 52 to a presentation of ‘Police cooperation’. Most of the text concerns Europol, with fairly brief remarks on Article 69f, including the statement that the UK has the option to opt in to measures under these Articles (page 48).
The Library Research Paper 07/86 is available at:
http://www.parliament.uk/commons/lib/research/rp2007/rp07-086.pdf
***
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 ‘Police and judicial cooperation in criminal matters’ at length in Chapter 6 (from page 139).
‘Police cooperation’ was briefly dealt with on page 155, without identifying significant change.
The report is accessible at:
http://www.publications.parliament.uk/pa/ld200708/ldselect/ldeucom/62/62.pdf
***
Sweden
The consultation paper of the government of Sweden, ‘Lissabonfördraget; Statsrådsberedningen, Departementsserien (Ds), Ds 2007:48’ published 20 December 2007, under the headline ‘Polissamarbete’ (page 325 to 326) remarks on the aim of the European Convention to distinguish between legislative and operational matters. Under ‘Förhandlingsresultatet’ the government underlines the national strategic importance of continued development of European police cooperation, and it mentions trafficking in human beings, the trade in drugs and terrorism as examples of crimes that require well-working cross-border 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) offers the most detailed description of Article 69f TFEU (ToL), renumbered Article 87 TFEU of the sources checked (pages 203–204).
The Finnish ratification 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), presents the same detailed explanations under ’Polissamarbete’ on pages 206 and 2007.
The ratification bill in Swedish can be accessed at:
http://www.finlex.fi/sv/esitykset/he/2008/20080023.pdf
Ralf Grahn
Legislation for operational cooperation still demands unanimity in the Council, but a group of member states can more easily initiate enhanced cooperation within EU structures and procedures, although Schengen building measures are excluded.
***
Article 87 of the Treaty on the Functioning of the European Union (TFEU) starts a new Chapter 5 on police cooperation. The Article is found in the consolidated version of the Treaty on European Union and the Treaty on the Functioning of the European Union, now published in the Official Journal of the European Union, OJ 9.5.2008 C 115/83–84,. The location of the provision is added from the table of equivalences (page 368–371):
Part Three ‘Policies and internal actions of the Union’
Title V TFEU ‘Area of freedom, security and justice’
Chapter 5 ‘Police cooperation’
Article 87 TFEU
(ex Article 30 TEU)
1. The Union shall establish police cooperation involving all the Member States' competent authorities, including police, customs and other specialised law enforcement services in relation to the prevention, detection and investigation of criminal offences.
2. For the purposes of paragraph 1, the European Parliament and the Council, acting in accordance with the ordinary legislative procedure, may establish measures concerning:
(a) the collection, storage, processing, analysis and exchange of relevant information;
(b) support for the training of staff, and cooperation on the exchange of staff, on equipment and on research into crime-detection;
(c) common investigative techniques in relation to the detection of serious forms of organised crime.
3. The Council, acting in accordance with a special legislative procedure, may establish measures concerning operational cooperation between the authorities referred to in this Article. The Council shall act unanimously after consulting the European Parliament.
In case of the absence of unanimity in the Council, a group of at least nine Member States may request that the draft 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 nine Member States wish to establish enhanced cooperation on the basis of the draft 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 Article 20(2) of the Treaty on European Union and Article 329(1) of this Treaty shall be deemed to be granted and the provisions on enhanced cooperation shall apply.
The specific procedure provided for in the second and third subparagraphs shall not apply to acts which constitute a development of the Schengen acquis.
***
In Article 2, point 68, of the Treaty of Lisbon (ToL) the intergovernmental conference (IGC 2007) stated (OJ 17.12.2007 C 306/66):
POLICE COOPERATION
68) The following Chapter 5 and Articles 69 F, 69 G and 69 H shall be inserted. Articles 69 F and
69 G shall replace the current Article 30 of the Treaty on European Union, and Article 69 H
shall replace Article 32 thereof, as set out above in point 51 of Article 1 of this Treaty: …
Then followed the text (as above, bar the numbering of Articles referred to) of Article 69f TFEU (ToL), which was to become Article 87 TFEU in the consolidated version (pages 66–67).
***
The current Article 30 of the Treaty on European Union (TEU) belongs to the intergovernmental third pillar, in Title VI ‘Provisions on police and judicial cooperation in criminal matters’. The provision is found in the latest consolidated version of the treaties in force (OJ 29.12.2006 C 321 E/24–25):
Article 30 TEU
1. Common action in the field of police cooperation shall include:
(a) operational cooperation between the competent authorities, including the police, customs and other specialised law enforcement services of the Member States in relation to the prevention, detection and investigation of criminal offences;
(b) the collection, storage, processing, analysis and exchange of relevant information, including information held by law enforcement services on reports on suspicious financial transactions, in particular through Europol, subject to appropriate provisions on the protection of personal data;
(c) cooperation and joint initiatives in training, the exchange of liaison officers, secondments, the use of equipment, and forensic research;
(d) the common evaluation of particular investigative techniques in relation to the detection of serious forms of organised crime.
2. The Council shall promote cooperation through Europol and shall in particular, within a period of five years after the date of entry into force of the Treaty of Amsterdam:
(a) enable Europol to facilitate and support the preparation, and to encourage the coordination and carrying out, of specific investigative actions by the competent authorities of the Member States, including operational actions of joint teams comprising representatives of Europol in a support capacity;
(b) adopt measures allowing Europol to ask the competent authorities of the Member States to conduct and coordinate their investigations in specific cases and to develop specific expertise which may be put at the disposal of Member States to assist them in investigating cases of organised crime;
(c) promote liaison arrangements between prosecuting/investigating officials specialising in the fight against organised crime in close cooperation with Europol;
(d) establish a research, documentation and statistical network on cross-border crime.
***
We look at the previous stages of the treaty reform process.
The European Convention proposed a unified treaty, which would have abolished the pillar structure. Under Section 5 ‘Police cooperation’, measures on some aspects of police cooperation would have been taken according to the ordinary legislative procedure, meaning qualified majority voting (QMV) in the Council and co-decision by the European Parliament (pargraph 2). The measures for operational cooperation would have remained subject to unanimity in the Council and the European Parliament would only have been consulted (pargraph 3).
Here is Article III-176 of the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/61):
Section 5
Police cooperation
Article III-176 Draft Constitution
1. The Union shall establish police cooperation involving all the Member States' competent authorities, including police, customs and other specialised law enforcement services in relation to the prevention, detection and investigation of criminal offences.
2. To this end, European laws or framework laws may establish measures concerning:
(a) the collection, storage, processing, analysis and exchange of relevant information;
(b) support for the training of staff, and cooperation on the exchange of staff, on equipment and on research into crime-detection;
(c) common investigative techniques in relation to the detection of serious forms of organised crime.
3. A European law or framework law of the Council of Ministers may establish measures concerning operational cooperation between the authorities referred to in this Article. The Council of Ministers shall act unanimously after consulting the European Parliament.
***
The IGC 2004 adopted the text of the European Convention without substantial change.
This is the text of Article III-275 of the Treaty establishing a Constitution for Europe, almost identical to the draft (OJ 16.12.2004 C 310/121–122):
Section 5
Police cooperation
Article III-275 Constitution
1. The Union shall establish police cooperation involving all the Member States' competent authorities, including police, customs and other specialised law enforcement services in relation to the prevention, detection and investigation of criminal offences.
2. For the purposes of paragraph 1, European laws or framework laws may establish measures concerning:
(a) the collection, storage, processing, analysis and exchange of relevant information;
(b) support for the training of staff, and cooperation on the exchange of staff, on equipment and on research into crime‑detection;
(c) common investigative techniques in relation to the detection of serious forms of organised crime.
3. A European law or framework law of the Council may establish measures concerning operational cooperation between the authorities referred to in this Article. The Council shall act unanimously after consulting the European Parliament.
***
The provisions on judicial cooperation in criminal matters are generally based on the Constitutional Treaty, with the modifications introduced by the IGC 2007 Mandate (Council document 11218/07, point 19(l), page 8):
“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 mechanism enabling member states to go forward while allowing others not to participate was then duly detailed in point 2(d) of Annex 2 (page 16).
With regard to police cooperation, an additional subparagraph was added to the new text of paragraph 3, spelling out that the facilitated enhanced cooperation would not apply to acts which constitute a development of the Schengen acquis.
Given the determining influence of the IGC 2007 Mandate, in this and most other questions the intergovernmental conference was actually concluded before it started, leaving it to the specialist lawyers of the Council and the member states to wrap up the coming Lisbon Treaty technically before the agreed amendments could be signed in Lisbon, where the so called Reform Treaty became officially known as the Treaty of Lisbon.
According to the Treaty of Lisbon, it will be easier for a group of states to establish enhanced cooperation, letting other members bide their time. Enhanced cooperation means that new steps can be taken within the structures of the European Union, although the adopted measures apply to only the participating member states.
If enhanced cooperation is either unavailable or deemed to be too cumbersome, willing and able member states have opted for treaties outside EU structures and procedures, such as the origins of the Schengen, Dublin and Prüm conventions.
***
United Kingdom
We turn to additional comments and further reading on EU police cooperation. First, short comments from Great Britain, and then UK sources where these questions are dealt with extensively.
In the Statewatch analysis ‘EU Reform Treaty: Analysis 1: Version 3 JHA provisions’ (22 October 2007), Steve Peers commented on what was to become Article 69f TFEU (ToL), Article 87 TFEU (page 20):
“Paragraph 2, but not paragraph 3, will be subject to QMV and co-decision, a change from the present unanimity and consultation.”
“The new provisions in the draft Reform Treaty provide for the possibility of a group of Member States applying a ‘flexibility’ procedure in the event of a veto by one or more Member States. This is again distinct from the separate power of the UK, Ireland and Denmark to opt out of proposals at the outset. Note that the new provisions do not apply to paragraph 2.”
The JHA analysis and other useful Statewatch analyses are available through:
http://www.statewatch.org/euconstitution.htm
***
The Foreign and Commonwealth Office (FCO) published another convenient source of brief annotations on Lisbon Treaty amendments in ‘A comparative table of the current EC and EU treaties as amended by the Treaty of Lisbon’ (Command Paper 7311, published 21 January 2008), offering the following summary of the results with regard to Article 87 TFEU, Article 69f TFEU (ToL) in the original Lisbon Treaty:
“Draws on Article 30(1) TEU. Co-decision for certain measures, but operational cooperation measures require unanimity in the Council and EP consultation.”
The FCO comparative table is available at:
http://www.official-documents.gov.uk/document/cm73/7311/7311.asp
***
The UK House of Commons Library Research Paper 07/86 ‘The Treaty of Lisbon: amendments to the Treaty establishing the European Community’ (published 6 December 2007) dedicates pages 48 to 52 to a presentation of ‘Police cooperation’. Most of the text concerns Europol, with fairly brief remarks on Article 69f, including the statement that the UK has the option to opt in to measures under these Articles (page 48).
The Library Research Paper 07/86 is available at:
http://www.parliament.uk/commons/lib/research/rp2007/rp07-086.pdf
***
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 ‘Police and judicial cooperation in criminal matters’ at length in Chapter 6 (from page 139).
‘Police cooperation’ was briefly dealt with on page 155, without identifying significant change.
The report is accessible at:
http://www.publications.parliament.uk/pa/ld200708/ldselect/ldeucom/62/62.pdf
***
Sweden
The consultation paper of the government of Sweden, ‘Lissabonfördraget; Statsrådsberedningen, Departementsserien (Ds), Ds 2007:48’ published 20 December 2007, under the headline ‘Polissamarbete’ (page 325 to 326) remarks on the aim of the European Convention to distinguish between legislative and operational matters. Under ‘Förhandlingsresultatet’ the government underlines the national strategic importance of continued development of European police cooperation, and it mentions trafficking in human beings, the trade in drugs and terrorism as examples of crimes that require well-working cross-border 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) offers the most detailed description of Article 69f TFEU (ToL), renumbered Article 87 TFEU of the sources checked (pages 203–204).
The Finnish ratification 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), presents the same detailed explanations under ’Polissamarbete’ on pages 206 and 2007.
The ratification bill in Swedish can be accessed at:
http://www.finlex.fi/sv/esitykset/he/2008/20080023.pdf
Ralf Grahn
Saturday, 10 May 2008
EU TFEU: European public prosecutor
Considering the criticism levelled at the European Commission and the European Union in general for mismanagement of EU funds by authorities of the member states, it should come as no surprise that the Commission would like to see outlays for inexistent olive groves and unbuilt roads recovered and the perpetrators diligently pursued.
The Treaty of Lisbon fails to bring the new provision on the European public prosecutor’s office under qualified majority voting and the ordinary legislative procedure, but it enables a group of nine or more member states to establish enhanced cooperation.
***
Europe Day brought EU citizens one valuable, although belated, gift: Consolidated versions of the Treaty on European Union (TEU) and on the Treaty on the Functioning of the European Union (TFEU) were published in the Official Journal of the European Union, which makes them feel somewhat more official than the Council’s consolidated version made available 16 April 2008.
From now on we are going to use OJ 9.5.2008 C 115 as our reference.
We look forward to the arrival of these consolidated versions of the Treaty of Lisbon in book form to our distant shores.
***
Article 86 of the Treaty on the Functioning of the European Union (TFEU) forms the basis for the eventual establishment of a European public prosecutor. The Article is found in OJ 9.5.2008 C 115/82–83. The location of the provision is added from the table of equivalences (page 368–371):
Part Three ‘Policies and internal actions of the Union’
Title V TFEU ‘Area of freedom, security and justice’
Chapter 4 ‘Judicial cooperation in criminal matters’
Article 86 TFEU
1. In order to combat crimes affecting the financial interests of the Union, the Council, by means of regulations adopted in accordance with a special legislative procedure, may establish a European Public Prosecutor's Office from Eurojust. The Council shall act unanimously after obtaining the consent of the European Parliament.
In the absence of unanimity in the Council, a group of at least nine Member States may request that the draft regulation 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 nine Member States wish to establish enhanced cooperation on the basis of the draft regulation 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 Article 20(2) of the Treaty on European Union and Article 329(1) of this Treaty shall be deemed to be granted and the provisions on enhanced cooperation shall apply.
2. The European Public Prosecutor's Office shall be responsible for investigating, prosecuting and bringing to judgment, where appropriate in liaison with Europol, the perpetrators of, and accomplices in, offences against the Union's financial interests, as determined by the regulation provided for in paragraph 1. It shall exercise the functions of prosecutor in the competent courts of the Member States in relation to such offences.
3. The regulations referred to in paragraph 1 shall determine the general rules applicable to the European Public Prosecutor's Office, the conditions governing the performance of its functions, the rules of procedure applicable to its activities, as well as those governing the admissibility of evidence, and the rules applicable to the judicial review of procedural measures taken by it in the performance of its functions.
4. The European Council may, at the same time or subsequently, adopt a decision amending paragraph 1 in order to extend the powers of the European Public Prosecutor's Office to include serious crime having a cross-border dimension and amending accordingly paragraph 2 as regards the perpetrators of, and accomplices in, serious crimes affecting more than one Member State. The European Council shall act unanimously after obtaining the consent of the European Parliament and after consulting the Commission.
***
In Article 2, point 67, of the Treaty of Lisbon (ToL) the intergovernmental conference (IGC 2007) stated (OJ 17.12.2007 C 306/62):
“67) Article 66 shall be replaced by Article 61 G, as set out in point 64 above, and Articles 67 to 69 shall be repealed. The following Chapter 4 and Articles 69 A to 69 E shall be inserted. Articles 69 A, 69 B and 69 D shall replace the current Article 31 of the Treaty on European Union, as set out above in point 51 of Article 1 of this Treaty: …”
The IGC 2007 then presented the wording of Article 69e TFEU (ToL) otherwise as above, but the clarifying words ‘in the Council’ were later added to the second subparagraph of the first paragraph (OJ 17.12.2007 C 306/65–66). In the consolidated version Article 69e was to become Article 86 TFEU. Cf. TFEU table of equivalences, OJ 17.12.2007 C 306/210.
***
The provisions on judicial cooperation in criminal matters are generally based on the Constitutional Treaty, with the modifications introduced by the IGC 2007 Mandate (Council document 11218/07, point 19(l), page 8):
“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 mechanism enabling member states to go forward while allowing others not to participate was then duly detailed in point 2(d) of Annex 2 (page 16).
Given the determining influence of the IGC 2007 Mandate, in this and most other questions the intergovernmental conference was actually concluded before it started, leaving it to the specialist lawyers of the Council and the member states to wrap up the coming Lisbon Treaty technically before the agreed amendments could be signed.
***
The possible European public prosecutor is a new office, so there is no directly corresponding provision in the current treaties.
***
We look at the previous stages of the treaty reform process.
The European Convention proposed a European public prosecutor’s office with a wide mandate: to combat serious crime having a cross-border dimension, as well as crimes affecting the interests of the Union. But, due to resistance from some members (or, in fact, member states), the proposed new office came at the price of unanimity in the Council.
Here is Article III-175 of the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/61):
Article III-175 Draft Constitution
1. In order to combat serious crime having a cross-border dimension, as well as crimes affecting the interests of the Union, a European law of the Council of Ministers may establish a European Public Prosecutor's Office from Eurojust. The Council of Ministers shall act unanimously after obtaining the consent of the European Parliament.
2. The European Public Prosecutor's Office shall be responsible for investigating, prosecuting and bringing to judgment, where appropriate in liaison with Europol, the perpetrators of and accomplices in serious crimes affecting more than one Member State and of offences against the Union's financial interests, as determined by the European law provided for in paragraph 1. It shall exercise the functions of prosecutor in the competent courts of the Member States in relation to such offences.
3. The European law referred to in paragraph 1 shall determine the general rules applicable to the European Public Prosecutor's Office, the conditions governing the performance of its functions, the rules of procedure applicable to its activities, as well as those governing the admissibility of evidence, and the rules applicable to the judicial review of procedural measures taken by it in the performance of its functions.
***
The IGC 2004 narrowed the primary scope of the European public prosecutor’s office to crimes affecting the financial interests of the EU, although a new fourth paragraph opened up the possibility to extend the powers of the office, at the same time or later.
This is the text of Article III-274 of the Treaty establishing a Constitution for Europe (OJ 16.12.2004 C 310/121):
Article III-274 Constitution
1. In order to combat crimes affecting the financial interests of the Union, a European law of the Council may establish a European Public Prosecutor's Office from Eurojust. The Council shall act unanimously after obtaining the consent of the European Parliament.
2. The European Public Prosecutor's Office shall be responsible for investigating, prosecuting and bringing to judgment, where appropriate in liaison with Europol, the perpetrators of, and accomplices in, offences against the Union's financial interests, as determined by the European law provided for in paragraph 1. It shall exercise the functions of prosecutor in the competent courts of the Member States in relation to such offences.
3. The European law referred to in paragraph 1 shall determine the general rules applicable to the European Public Prosecutor's Office, the conditions governing the performance of its functions, the rules of procedure applicable to its activities, as well as those governing the admissibility of evidence, and the rules applicable to the judicial review of procedural measures taken by it in the performance of its functions.
4. The European Council may, at the same time or subsequently, adopt a European decision amending paragraph 1 in order to extend the powers of the European Public Prosecutor's Office to include serious crime having a cross-border dimension and amending accordingly paragraph 2 as regards the perpetrators of, and accomplices in, serious crimes affecting more than one Member State. The European Council shall act unanimously after obtaining the consent of the European Parliament and after consulting the Commission.
***
The provision on the European public prosecutor’s office is one more example where the member states have been unable to reach an unanimous agreement to move to qualified majority voting (QMV) in the Council and the ordinary legislative procedure (co-decision), with a fully developed role for the European Parliament.
In the face of long-standing opposition, no unanimous decision would have materialised in the Council in a foreseeable future.
On the other hand, certain member states feel strongly that the fight against serious cross-border crime, or at least crimes affecting the financial interests of the EU, should be stepped up by the means of more effective action.
This Gordian knot was cut by the IGC 2007 Mandate and the resulting Article 86 TFEU, by enabling a group of at least nine member states the option to forge ahead with enhanced cooperation. The worst curses of unanimity can be avoided, when unwilling member states are unable to prevent the progress of others, but are spared the discomfort of being dragged into arrangements they dislike.
***
The discussion date back to at least the European Convention, but here we are satisfied with a small sample of comments and views post Lisbon.
United Kingdom
In the Statewatch analysis ‘EU Reform Treaty: Analysis 1: Version 3 JHA provisions’ (22 October 2007), Steve Peers commented on what was to become Article 69e TFEU (ToL), Article 86 TFEU (page 19):
“This is a new provision as compared to the current Treaties. The additions to this Article in the draft Reform Treaty (as compared to the Constitutional Treaty) provide for possibility of a group of Member States applying a ‘flexibility’ procedure in the event of a veto by one or more Member States. This is distinct from the separate power of the UK, Ireland and Denmark to opt out of proposals at the outset.”
The JHA analysis and other useful Statewatch analyses are available through:
http://www.statewatch.org/euconstitution.htm
***
The Foreign and Commonwealth Office (FCO) published another convenient source of brief annotations on Lisbon Treaty amendments in ‘A comparative table of the current EC and EU treaties as amended by the Treaty of Lisbon’ (Command Paper 7311, published 21 January 2008), offering the following summary of the results with regard to Article 86 TFEU, Article 69e TFEU (ToL) in the original Lisbon Treaty:
“New. Enables the Council, by unanimity and with EP consent, to establish a European Public Prosecutor’s Office to investigate and prosecute crimes affecting the EU’s financial interests. A passerelle enables the European Council, by unanimity and with EP consent, to extend the powers and functions of the EPP to include serious cross-border crime.”
The FCO comparative table is available at:
http://www.official-documents.gov.uk/document/cm73/7311/7311.asp
***
The UK House of Commons Library Research Paper 07/86 ‘The Treaty of Lisbon: amendments to the Treaty establishing the European Community’ (published 6 December 2007) dedicates page 45 to 48 to a presentation of a history of varying degrees of, including some reasons for, official British opposition under the heading ‘European public prosecutor’.
The Library Research Paper 07/86 is available at:
http://www.parliament.uk/commons/lib/research/rp2007/rp07-086.pdf
***
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 ‘Police and judicial cooperation in criminal matters’ at length in Chapter 6 (from page 139). Under ‘Eurojust and a European Public Prosecutor’ the Committee documented a fairly nuanced exchange of views by witnesses on the European public prosecutor, on pages 151 to 153.
The general feeling among witnesses and the Committee seemed to be that the European public prosecutor’s office would be created under the provisions on enhanced cooperation, by a group of states, but without British participation.
There was no definitive answer to the question if the extension of the European public prosecutor’s powers to other serious cross-border crime fell under the same rules for enhanced cooperation, or if the fourth paragraph was meant to uphold the unanimity rule in case nine or more states included the extension of powers in the original draft regulation or a later amending proposal.
The report is accessible at:
http://www.publications.parliament.uk/pa/ld200708/ldselect/ldeucom/62/62.pdf
***
Sweden
The consultation paper of the government of Sweden, ‘Lissabonfördraget; Statsrådsberedningen, Departementsserien (Ds), Ds 2007:48’ published 20 December 2007, under ‘En europeisk åklagarmyndighet’ refers to the protracted debate about the need for a European public prosecutor, summarising opposing views, and the government ends up with the conclusion to wait and see (pages 323 to 325).
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) offers a detailed description of Article 69e TFEU (ToL), renumbered Article 86 TFEU on pages 202–203.
In addition, there is a value judgment on page 89: Finland has not found the establishment of the European public prosecutor’s office to be necessary, but the agreed arrangement is acceptable.
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), presents the same remarks on page 205, with the value based judgment on page 91.
The ratification bill in Swedish can be accessed at:
http://www.finlex.fi/sv/esitykset/he/2008/20080023.pdf
Ralf Grahn
The Treaty of Lisbon fails to bring the new provision on the European public prosecutor’s office under qualified majority voting and the ordinary legislative procedure, but it enables a group of nine or more member states to establish enhanced cooperation.
***
Europe Day brought EU citizens one valuable, although belated, gift: Consolidated versions of the Treaty on European Union (TEU) and on the Treaty on the Functioning of the European Union (TFEU) were published in the Official Journal of the European Union, which makes them feel somewhat more official than the Council’s consolidated version made available 16 April 2008.
From now on we are going to use OJ 9.5.2008 C 115 as our reference.
We look forward to the arrival of these consolidated versions of the Treaty of Lisbon in book form to our distant shores.
***
Article 86 of the Treaty on the Functioning of the European Union (TFEU) forms the basis for the eventual establishment of a European public prosecutor. The Article is found in OJ 9.5.2008 C 115/82–83. The location of the provision is added from the table of equivalences (page 368–371):
Part Three ‘Policies and internal actions of the Union’
Title V TFEU ‘Area of freedom, security and justice’
Chapter 4 ‘Judicial cooperation in criminal matters’
Article 86 TFEU
1. In order to combat crimes affecting the financial interests of the Union, the Council, by means of regulations adopted in accordance with a special legislative procedure, may establish a European Public Prosecutor's Office from Eurojust. The Council shall act unanimously after obtaining the consent of the European Parliament.
In the absence of unanimity in the Council, a group of at least nine Member States may request that the draft regulation 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 nine Member States wish to establish enhanced cooperation on the basis of the draft regulation 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 Article 20(2) of the Treaty on European Union and Article 329(1) of this Treaty shall be deemed to be granted and the provisions on enhanced cooperation shall apply.
2. The European Public Prosecutor's Office shall be responsible for investigating, prosecuting and bringing to judgment, where appropriate in liaison with Europol, the perpetrators of, and accomplices in, offences against the Union's financial interests, as determined by the regulation provided for in paragraph 1. It shall exercise the functions of prosecutor in the competent courts of the Member States in relation to such offences.
3. The regulations referred to in paragraph 1 shall determine the general rules applicable to the European Public Prosecutor's Office, the conditions governing the performance of its functions, the rules of procedure applicable to its activities, as well as those governing the admissibility of evidence, and the rules applicable to the judicial review of procedural measures taken by it in the performance of its functions.
4. The European Council may, at the same time or subsequently, adopt a decision amending paragraph 1 in order to extend the powers of the European Public Prosecutor's Office to include serious crime having a cross-border dimension and amending accordingly paragraph 2 as regards the perpetrators of, and accomplices in, serious crimes affecting more than one Member State. The European Council shall act unanimously after obtaining the consent of the European Parliament and after consulting the Commission.
***
In Article 2, point 67, of the Treaty of Lisbon (ToL) the intergovernmental conference (IGC 2007) stated (OJ 17.12.2007 C 306/62):
“67) Article 66 shall be replaced by Article 61 G, as set out in point 64 above, and Articles 67 to 69 shall be repealed. The following Chapter 4 and Articles 69 A to 69 E shall be inserted. Articles 69 A, 69 B and 69 D shall replace the current Article 31 of the Treaty on European Union, as set out above in point 51 of Article 1 of this Treaty: …”
The IGC 2007 then presented the wording of Article 69e TFEU (ToL) otherwise as above, but the clarifying words ‘in the Council’ were later added to the second subparagraph of the first paragraph (OJ 17.12.2007 C 306/65–66). In the consolidated version Article 69e was to become Article 86 TFEU. Cf. TFEU table of equivalences, OJ 17.12.2007 C 306/210.
***
The provisions on judicial cooperation in criminal matters are generally based on the Constitutional Treaty, with the modifications introduced by the IGC 2007 Mandate (Council document 11218/07, point 19(l), page 8):
“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 mechanism enabling member states to go forward while allowing others not to participate was then duly detailed in point 2(d) of Annex 2 (page 16).
Given the determining influence of the IGC 2007 Mandate, in this and most other questions the intergovernmental conference was actually concluded before it started, leaving it to the specialist lawyers of the Council and the member states to wrap up the coming Lisbon Treaty technically before the agreed amendments could be signed.
***
The possible European public prosecutor is a new office, so there is no directly corresponding provision in the current treaties.
***
We look at the previous stages of the treaty reform process.
The European Convention proposed a European public prosecutor’s office with a wide mandate: to combat serious crime having a cross-border dimension, as well as crimes affecting the interests of the Union. But, due to resistance from some members (or, in fact, member states), the proposed new office came at the price of unanimity in the Council.
Here is Article III-175 of the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/61):
Article III-175 Draft Constitution
1. In order to combat serious crime having a cross-border dimension, as well as crimes affecting the interests of the Union, a European law of the Council of Ministers may establish a European Public Prosecutor's Office from Eurojust. The Council of Ministers shall act unanimously after obtaining the consent of the European Parliament.
2. The European Public Prosecutor's Office shall be responsible for investigating, prosecuting and bringing to judgment, where appropriate in liaison with Europol, the perpetrators of and accomplices in serious crimes affecting more than one Member State and of offences against the Union's financial interests, as determined by the European law provided for in paragraph 1. It shall exercise the functions of prosecutor in the competent courts of the Member States in relation to such offences.
3. The European law referred to in paragraph 1 shall determine the general rules applicable to the European Public Prosecutor's Office, the conditions governing the performance of its functions, the rules of procedure applicable to its activities, as well as those governing the admissibility of evidence, and the rules applicable to the judicial review of procedural measures taken by it in the performance of its functions.
***
The IGC 2004 narrowed the primary scope of the European public prosecutor’s office to crimes affecting the financial interests of the EU, although a new fourth paragraph opened up the possibility to extend the powers of the office, at the same time or later.
This is the text of Article III-274 of the Treaty establishing a Constitution for Europe (OJ 16.12.2004 C 310/121):
Article III-274 Constitution
1. In order to combat crimes affecting the financial interests of the Union, a European law of the Council may establish a European Public Prosecutor's Office from Eurojust. The Council shall act unanimously after obtaining the consent of the European Parliament.
2. The European Public Prosecutor's Office shall be responsible for investigating, prosecuting and bringing to judgment, where appropriate in liaison with Europol, the perpetrators of, and accomplices in, offences against the Union's financial interests, as determined by the European law provided for in paragraph 1. It shall exercise the functions of prosecutor in the competent courts of the Member States in relation to such offences.
3. The European law referred to in paragraph 1 shall determine the general rules applicable to the European Public Prosecutor's Office, the conditions governing the performance of its functions, the rules of procedure applicable to its activities, as well as those governing the admissibility of evidence, and the rules applicable to the judicial review of procedural measures taken by it in the performance of its functions.
4. The European Council may, at the same time or subsequently, adopt a European decision amending paragraph 1 in order to extend the powers of the European Public Prosecutor's Office to include serious crime having a cross-border dimension and amending accordingly paragraph 2 as regards the perpetrators of, and accomplices in, serious crimes affecting more than one Member State. The European Council shall act unanimously after obtaining the consent of the European Parliament and after consulting the Commission.
***
The provision on the European public prosecutor’s office is one more example where the member states have been unable to reach an unanimous agreement to move to qualified majority voting (QMV) in the Council and the ordinary legislative procedure (co-decision), with a fully developed role for the European Parliament.
In the face of long-standing opposition, no unanimous decision would have materialised in the Council in a foreseeable future.
On the other hand, certain member states feel strongly that the fight against serious cross-border crime, or at least crimes affecting the financial interests of the EU, should be stepped up by the means of more effective action.
This Gordian knot was cut by the IGC 2007 Mandate and the resulting Article 86 TFEU, by enabling a group of at least nine member states the option to forge ahead with enhanced cooperation. The worst curses of unanimity can be avoided, when unwilling member states are unable to prevent the progress of others, but are spared the discomfort of being dragged into arrangements they dislike.
***
The discussion date back to at least the European Convention, but here we are satisfied with a small sample of comments and views post Lisbon.
United Kingdom
In the Statewatch analysis ‘EU Reform Treaty: Analysis 1: Version 3 JHA provisions’ (22 October 2007), Steve Peers commented on what was to become Article 69e TFEU (ToL), Article 86 TFEU (page 19):
“This is a new provision as compared to the current Treaties. The additions to this Article in the draft Reform Treaty (as compared to the Constitutional Treaty) provide for possibility of a group of Member States applying a ‘flexibility’ procedure in the event of a veto by one or more Member States. This is distinct from the separate power of the UK, Ireland and Denmark to opt out of proposals at the outset.”
The JHA analysis and other useful Statewatch analyses are available through:
http://www.statewatch.org/euconstitution.htm
***
The Foreign and Commonwealth Office (FCO) published another convenient source of brief annotations on Lisbon Treaty amendments in ‘A comparative table of the current EC and EU treaties as amended by the Treaty of Lisbon’ (Command Paper 7311, published 21 January 2008), offering the following summary of the results with regard to Article 86 TFEU, Article 69e TFEU (ToL) in the original Lisbon Treaty:
“New. Enables the Council, by unanimity and with EP consent, to establish a European Public Prosecutor’s Office to investigate and prosecute crimes affecting the EU’s financial interests. A passerelle enables the European Council, by unanimity and with EP consent, to extend the powers and functions of the EPP to include serious cross-border crime.”
The FCO comparative table is available at:
http://www.official-documents.gov.uk/document/cm73/7311/7311.asp
***
The UK House of Commons Library Research Paper 07/86 ‘The Treaty of Lisbon: amendments to the Treaty establishing the European Community’ (published 6 December 2007) dedicates page 45 to 48 to a presentation of a history of varying degrees of, including some reasons for, official British opposition under the heading ‘European public prosecutor’.
The Library Research Paper 07/86 is available at:
http://www.parliament.uk/commons/lib/research/rp2007/rp07-086.pdf
***
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 ‘Police and judicial cooperation in criminal matters’ at length in Chapter 6 (from page 139). Under ‘Eurojust and a European Public Prosecutor’ the Committee documented a fairly nuanced exchange of views by witnesses on the European public prosecutor, on pages 151 to 153.
The general feeling among witnesses and the Committee seemed to be that the European public prosecutor’s office would be created under the provisions on enhanced cooperation, by a group of states, but without British participation.
There was no definitive answer to the question if the extension of the European public prosecutor’s powers to other serious cross-border crime fell under the same rules for enhanced cooperation, or if the fourth paragraph was meant to uphold the unanimity rule in case nine or more states included the extension of powers in the original draft regulation or a later amending proposal.
The report is accessible at:
http://www.publications.parliament.uk/pa/ld200708/ldselect/ldeucom/62/62.pdf
***
Sweden
The consultation paper of the government of Sweden, ‘Lissabonfördraget; Statsrådsberedningen, Departementsserien (Ds), Ds 2007:48’ published 20 December 2007, under ‘En europeisk åklagarmyndighet’ refers to the protracted debate about the need for a European public prosecutor, summarising opposing views, and the government ends up with the conclusion to wait and see (pages 323 to 325).
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) offers a detailed description of Article 69e TFEU (ToL), renumbered Article 86 TFEU on pages 202–203.
In addition, there is a value judgment on page 89: Finland has not found the establishment of the European public prosecutor’s office to be necessary, but the agreed arrangement is acceptable.
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), presents the same remarks on page 205, with the value based judgment on page 91.
The ratification bill in Swedish can be accessed at:
http://www.finlex.fi/sv/esitykset/he/2008/20080023.pdf
Ralf Grahn
Friday, 9 May 2008
EU TFEU: Eurojust
Eurojust – the European Union’s Judicial Cooperation Unit – is given clearer and extended powers to support investigations of serious cross-border crime. The Treaty of Lisbon promises more effective legislation by the ordinary legislative procedure (co-decision), and it proffers the promise of better scrutiny by the European Parliament and national parliaments.
But are the member states deliberately circumscribing the scope of action for Eurojust?
***
Article 85 of the Treaty on the Functioning of the European Union (TFEU) forms the basis for Eurojust, which has the mission to support national investigating and prosecuting authorities. The Article 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 107), with the location of the provision added from the table of equivalences (page 460 to 463):
Part Three ‘Policies and internal actions of the Union’
Title V TFEU ‘Area of freedom, security and justice’
Chapter 4 ‘Judicial cooperation in criminal matters’
Article 85 TFEU
(ex Article 31 TEU)
1. Eurojust's mission shall be to support and strengthen coordination and cooperation between national investigating and prosecuting authorities in relation to serious crime affecting two or more Member States or requiring a prosecution on common bases, on the basis of operations conducted and information supplied by the Member States' authorities and by Europol.
In this context, the European Parliament and the Council, by means of regulations adopted in accordance with the ordinary legislative procedure, shall determine Eurojust's structure, operation, field of action and tasks. These tasks may include:
(a) the initiation of criminal investigations, as well as proposing the initiation of prosecutions conducted by competent national authorities, particularly those relating to offences against the financial interests of the Union;
(b) the coordination of investigations and prosecutions referred to in point (a);
(c) the strengthening of judicial cooperation, including by resolution of conflicts of jurisdiction and by close cooperation with the European Judicial Network.
These regulations shall also determine arrangements for involving the European Parliament and national Parliaments in the evaluation of Eurojust's activities.
2. In the prosecutions referred to in paragraph 1, and without prejudice to Article 86, formal acts of judicial procedure shall be carried out by the competent national officials.
***
In Article 2, point 67, of the Treaty of Lisbon (ToL) the intergovernmental conference (IGC 2007) stated (OJ 17.12.2007 C 306/62):
“67) Article 66 shall be replaced by Article 61 G, as set out in point 64 above, and Articles 67 to 69 shall be repealed. The following Chapter 4 and Articles 69 A to 69 E shall be inserted. Articles 69 A, 69 B and 69 D shall replace the current Article 31 of the Treaty on European Union, as set out above in point 51 of Article 1 of this Treaty: …”
The IGC 2007 then presented the wording of Article 69d TFEU (ToL) as above (OJ 17.12.2007 C 306/65). In the Council’s consolidated version this was to become Article 85 TFEU. Cf. TFEU table of equivalences, OJ 17.12.2007 C 306/210.
***
It gives us some indication of how much more clear and precise the Lisbon Treaty provisions are, when this is the third Article we deal with that builds on the current Article 31 of the Treaty on European Union (TEU).
The first paragraph of Article 31 TEU offers the general scope for EU action on judicial cooperation in criminal matters, and the second paragraph deals more specifically with Eurojust.
Article 31 TEU is found in the latest consolidated version of the current treaties, in OJ 29.12.2006 C 321 E/25:
Article 31 TFEU
1. Common action on judicial cooperation in criminal matters shall include:
(a) facilitating and accelerating cooperation between competent ministries and judicial or equivalent authorities of the Member States, including, where appropriate, cooperation through Eurojust, in relation to proceedings and the enforcement of decisions;
(b) facilitating extradition between Member States;
(c) ensuring compatibility in rules applicable in the Member States, as may be necessary to improve such cooperation;
(d) preventing conflicts of jurisdiction between Member States;
(e) progressively adopting measures establishing minimum rules relating to the constituent elements of criminal acts and to penalties in the fields of organised crime, terrorism and illicit drug trafficking.
2. The Council shall encourage cooperation through Eurojust by:
(a) enabling Eurojust to facilitate proper coordination between Member States' national prosecuting authorities;
(b) promoting support by Eurojust for criminal investigations in cases of serious cross-border crime, particularly in the case of organised crime, taking account, in particular, of analyses carried out by Europol;
(c) facilitating close cooperation between Eurojust and the European Judicial Network, particularly, in order to facilitate the execution of letters rogatory and the implementation of extradition requests.
***
The European Convention proposed the following Article III-173 of the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/60):
Article III-174 Draft Constitution
1. Eurojust's mission shall be to support and strengthen coordination and cooperation between national prosecuting authorities in relation to serious crime affecting two or more Member States or requiring a prosecution on common bases, on the basis of operations conducted and information supplied by the Member States' authorities and by Europol.
2. European laws shall determine Eurojust's structure, workings, scope of action and tasks. Those tasks may include:
(a) the initiation and coordination of criminal prosecutions conducted by competent national authorities, particularly those relating to offences against the financial interests of the Union;
(b) the strengthening of judicial cooperation, including by resolution of conflicts of jurisdiction and by close cooperation with the European Judicial Network.
European laws shall also determine arrangements for involving the European Parliament and Member States' national Parliaments in the evaluation of Eurojust's activities.
3. In the prosecutions referred to in this Article, and without prejudice to Article III-175, formal acts of judicial procedure shall be carried out by the competent national officials.
***
The IGC 2004 closely scrutinised the draft and made a number of minor changes in Article III-273 of the Treaty establishing a Constitution for Europe (OJ 16.12.2004 C 310/120–121):
Article III-273 Constitution
1. Eurojust's mission shall be to support and strengthen coordination and cooperation between national investigating and prosecuting authorities in relation to serious crime affecting two or more Member States or requiring a prosecution on common bases, on the basis of operations conducted and information supplied by the Member States' authorities and by Europol.
In this context, European laws shall determine Eurojust's structure, operation, field of action and tasks. Those tasks may include:
(a) the initiation of criminal investigations, as well as proposing the initiation of prosecutions, conducted by competent national authorities, particularly those relating to offences against the financial interests of the Union;
(b) the coordination of investigations and prosecutions referred to in point (a);
(c) the strengthening of judicial cooperation, including by resolution of conflicts of jurisdiction and by close cooperation with the European Judicial Network.
European laws shall also determine arrangements for involving the European Parliament and national Parliaments in the evaluation of Eurojust's activities.
2. In the prosecutions referred to in paragraph 1, and without prejudice to Article III-274, formal acts of judicial procedure shall be carried out by the competent national officials.
***
Compared to the current Article 31 TEU, the European Convention judiciously enlarged the scope of Eurojust’s activities and introduced the ordinary legislative procedure, giving the directly elected European Parliament the right to co-decision and enhancing transparency.
Among the minor changes by the IGC 2004 the main one was that the initiation of ‘criminal investigations’ was added.
The Treaty of Lisbon took over the text of the Constitutional Treaty with the modifications caused by general terminological differences.
In conclusion, the principal clarifications and procedures follow from the work of the European Convention about five years ago.
But let us look at what others have commented on and concluded.
***
United Kingdom
In the Statewatch analysis ‘EU Reform Treaty: Analysis 1: Version 3 JHA provisions’ (22 October 2007), Steve Peers gave the following description of what was to become Article 69d TFEU (ToL), Article 85 TFEU (page 18):
“The voting procedure is QMV and co-decision, a change from the present unanimity and consultation.”
The JHA analysis and other Statewatch analyses are available through:
http://www.statewatch.org/euconstitution.htm
***
The UK House of Commons Library Research Paper 07/86 ‘The Treaty of Lisbon: amendments to the Treaty establishing the European Community’ (published 6 December 2007) offered a brief background note on Eurojust (European Judicial Cooperation Unit) before giving the following assessment (page 42), followed by two pages of discussion:
“Its remit and powers would be substantially increased by Article 69B. Article 69D(1) sets out its “mission”, which is to support and strengthen coordination and cooperation between national prosecuting authorities “in relation to serious crime affecting two or more Member States or requiring a prosecution on common bases”. Lisbon, like the Constitution, extends Eurojust’s mission to include investigating authorities. The Article provides that regulations adopted by the OLP will determine its structure, workings, scope of action and tasks, …”
The Library Research Paper 07/86 is available at:
http://www.parliament.uk/commons/lib/research/rp2007/rp07-086.pdf
***
The Foreign and Commonwealth Office (FCO) presents a convenient short version of the Lisbon Treaty amendments in ‘A comparative table of the current EC and EU treaties as amended by the Treaty of Lisbon’ (Command Paper 7311, published 21 January 2008), offering the following summary of the results with regard to Article 85 TFEU, Article 69d TFEU (ToL) in the original Lisbon Treaty:
“Draws on Article 31(2) TEU. Co-decision for regulations on Eurojust’s structure, operation, field of action and tasks.”
The FCO comparative table is available at:
http://www.official-documents.gov.uk/document/cm73/7311/7311.asp
***
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 ‘Police and judicial cooperation in criminal matters’ at length in Chapter 6 (from page 139). Under ‘Eurojust and a European Public Prosecutor’ the Committee treated the extended competences of Eurojust, enhanced accountability and procedural changes (pages 149–151), and it concluded:
“6.196. There are already moves to reform Eurojust and to grant it a greater role in enhancing cooperation between national authorities. New Article 85 may facilitate more ambitious developments in the longer term.”
The report is accessible at:
http://www.publications.parliament.uk/pa/ld200708/ldselect/ldeucom/62/62.pdf
***
Sweden
The consultation paper of the government of Sweden, ‘Lissabonfördraget; Statsrådsberedningen, Departementsserien (Ds), Ds 2007:48’ published 20 December 2007, sees the establishment of Eurojust in 2002 and the opportunities offered by the Lisbon Treaty in a positive light (pages 321–323, with the quote from page 322):
”Genom inrättandet år 2002 av åklagarkontoret Eurojust har det europeiska åklagarsamarbetet fått en välkommen förstärkning. Lissabonfördraget innebär att Eurojusts arbetsuppgifter tydliggörs och att möjligheter till en vidareutveckling av Eurojustsamarbetet införs.”
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) offers, in the customary Nordic manner, a detailed description of Article 69d TFEU (ToL), renumbered Article 85 TFEU on pages 201–202. (For a local lawyer entering uncharted waters, the government bill is often the next tool of reference after the text of a statute.)
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), presents the same remarks on pages 204–205.
The ratification bill in Swedish can be accessed at:
http://www.finlex.fi/sv/esitykset/he/2008/20080023.pdf
***
The Treaty of Lisbon extends and clarifies the scope of action of Eurojust, and it moves to
‘Community’ procedures, to be known as the ordinary legislative procedure: qualified majority voting in the Council and co-decision by the European Parliament.
The Lisbon Treaty also holds out the hope of improved scrutiny by the European Parliament and national parliaments.
***
There is a joint declaration attached to the Lisbon Treaty (page 439 in the Council’s consolidated version):
27. Declaration on Article 85(1), second subparagraph, of the Treaty on the Functioning of the European Union
The Conference considers that the regulations referred to in the second subparagraph of Article 85(1) of the Treaty on the Functioning of the European Union should take into account national rules and practices relating to the initiation of criminal investigations.
***
Additional information about the European Union’s Judicial Cooperation Unit can be found through the Eurojust web site:
http://eurojust.europa.eu/
The basic acts of secondary legislation are:
Council decision of 28 February 2002 setting up Eurojust with a view to reinforcing the fight against serious crime (2002/187/JHA), OJ 6.3.2002 L 63/1
Council decision 2003/659/JHA of 18 June 2003 amending Decision 2002/187/JHA setting up Eurojust with a view to reinforcing the fight against serious crime, OJ 29.9.2003 L 245/44
***
The European Commission has pushed for the member states to transpose the powers of the national members of Europol effectively, and to beef up their powers and guarantee continuity, as seen in the Communication from the Commission to the Council and the European Palriament on the role of Eurojust and the European Judicial Network in the fight against organised crime and terrorism in the European Union, Brussels 23.10.2007, COM(2007) 644 final:
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2007:0644:FIN:EN:PDF
The Council has dealt with an initiative by fourteen member states with the stated purpose to strengthen Eurojust by amending the Decisions. See:
Initiative of the Kingdom of Belgium, the Czech Republic, the Republic of Estonia, the Kingdom of Spain, the French Republic, the Italian Republic, the Grand Duchy of Luxembourg, the Kingdom of the Netherlands, the Republic of Austria, the Republic of Poland, the Portuguese Republic, the Republic of Slovenia, the Slovak Republic and the Kingdom of Sweden with a view to adopting a Council Decision of … on the strengthening of Eurojust and amending Decision 2002/187/JHA (OJ 27.2.2008 C 54/4)
The Justice and Home Affairs Council 18 April 2008 (document 8397/08; page 17) adopted a general approach on the subject and decided to continue to work on the proposal.
In bureaucratic jargon ‘strengthening’ may mean anything until dissected, so here is an interesting EUobserver news item worth further study by interested parties, namely ‘EU states muscle in on bloc’s judicial body’, by Renata Goldirova (although the main thrust seems to be the European public prosecutor):
http://euobserver.com/22/26082
According to the 6 May 2008 story, the Commission has dropped its plans to strengthen Eurojust after being wrong-footed by a group of 14 member states, their proposal being seen as a move to put a lid on anything too ambitious by the Commission.
Ralf Grahn
P.S. Good tidings: The Consolidated versions of the Treaty on European Union and the Treaty on the Functioning of the European Union have been published in the Official Journal of the European Union, OJ 9.5.2008 C 115/1. Great!
But are the member states deliberately circumscribing the scope of action for Eurojust?
***
Article 85 of the Treaty on the Functioning of the European Union (TFEU) forms the basis for Eurojust, which has the mission to support national investigating and prosecuting authorities. The Article 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 107), with the location of the provision added from the table of equivalences (page 460 to 463):
Part Three ‘Policies and internal actions of the Union’
Title V TFEU ‘Area of freedom, security and justice’
Chapter 4 ‘Judicial cooperation in criminal matters’
Article 85 TFEU
(ex Article 31 TEU)
1. Eurojust's mission shall be to support and strengthen coordination and cooperation between national investigating and prosecuting authorities in relation to serious crime affecting two or more Member States or requiring a prosecution on common bases, on the basis of operations conducted and information supplied by the Member States' authorities and by Europol.
In this context, the European Parliament and the Council, by means of regulations adopted in accordance with the ordinary legislative procedure, shall determine Eurojust's structure, operation, field of action and tasks. These tasks may include:
(a) the initiation of criminal investigations, as well as proposing the initiation of prosecutions conducted by competent national authorities, particularly those relating to offences against the financial interests of the Union;
(b) the coordination of investigations and prosecutions referred to in point (a);
(c) the strengthening of judicial cooperation, including by resolution of conflicts of jurisdiction and by close cooperation with the European Judicial Network.
These regulations shall also determine arrangements for involving the European Parliament and national Parliaments in the evaluation of Eurojust's activities.
2. In the prosecutions referred to in paragraph 1, and without prejudice to Article 86, formal acts of judicial procedure shall be carried out by the competent national officials.
***
In Article 2, point 67, of the Treaty of Lisbon (ToL) the intergovernmental conference (IGC 2007) stated (OJ 17.12.2007 C 306/62):
“67) Article 66 shall be replaced by Article 61 G, as set out in point 64 above, and Articles 67 to 69 shall be repealed. The following Chapter 4 and Articles 69 A to 69 E shall be inserted. Articles 69 A, 69 B and 69 D shall replace the current Article 31 of the Treaty on European Union, as set out above in point 51 of Article 1 of this Treaty: …”
The IGC 2007 then presented the wording of Article 69d TFEU (ToL) as above (OJ 17.12.2007 C 306/65). In the Council’s consolidated version this was to become Article 85 TFEU. Cf. TFEU table of equivalences, OJ 17.12.2007 C 306/210.
***
It gives us some indication of how much more clear and precise the Lisbon Treaty provisions are, when this is the third Article we deal with that builds on the current Article 31 of the Treaty on European Union (TEU).
The first paragraph of Article 31 TEU offers the general scope for EU action on judicial cooperation in criminal matters, and the second paragraph deals more specifically with Eurojust.
Article 31 TEU is found in the latest consolidated version of the current treaties, in OJ 29.12.2006 C 321 E/25:
Article 31 TFEU
1. Common action on judicial cooperation in criminal matters shall include:
(a) facilitating and accelerating cooperation between competent ministries and judicial or equivalent authorities of the Member States, including, where appropriate, cooperation through Eurojust, in relation to proceedings and the enforcement of decisions;
(b) facilitating extradition between Member States;
(c) ensuring compatibility in rules applicable in the Member States, as may be necessary to improve such cooperation;
(d) preventing conflicts of jurisdiction between Member States;
(e) progressively adopting measures establishing minimum rules relating to the constituent elements of criminal acts and to penalties in the fields of organised crime, terrorism and illicit drug trafficking.
2. The Council shall encourage cooperation through Eurojust by:
(a) enabling Eurojust to facilitate proper coordination between Member States' national prosecuting authorities;
(b) promoting support by Eurojust for criminal investigations in cases of serious cross-border crime, particularly in the case of organised crime, taking account, in particular, of analyses carried out by Europol;
(c) facilitating close cooperation between Eurojust and the European Judicial Network, particularly, in order to facilitate the execution of letters rogatory and the implementation of extradition requests.
***
The European Convention proposed the following Article III-173 of the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/60):
Article III-174 Draft Constitution
1. Eurojust's mission shall be to support and strengthen coordination and cooperation between national prosecuting authorities in relation to serious crime affecting two or more Member States or requiring a prosecution on common bases, on the basis of operations conducted and information supplied by the Member States' authorities and by Europol.
2. European laws shall determine Eurojust's structure, workings, scope of action and tasks. Those tasks may include:
(a) the initiation and coordination of criminal prosecutions conducted by competent national authorities, particularly those relating to offences against the financial interests of the Union;
(b) the strengthening of judicial cooperation, including by resolution of conflicts of jurisdiction and by close cooperation with the European Judicial Network.
European laws shall also determine arrangements for involving the European Parliament and Member States' national Parliaments in the evaluation of Eurojust's activities.
3. In the prosecutions referred to in this Article, and without prejudice to Article III-175, formal acts of judicial procedure shall be carried out by the competent national officials.
***
The IGC 2004 closely scrutinised the draft and made a number of minor changes in Article III-273 of the Treaty establishing a Constitution for Europe (OJ 16.12.2004 C 310/120–121):
Article III-273 Constitution
1. Eurojust's mission shall be to support and strengthen coordination and cooperation between national investigating and prosecuting authorities in relation to serious crime affecting two or more Member States or requiring a prosecution on common bases, on the basis of operations conducted and information supplied by the Member States' authorities and by Europol.
In this context, European laws shall determine Eurojust's structure, operation, field of action and tasks. Those tasks may include:
(a) the initiation of criminal investigations, as well as proposing the initiation of prosecutions, conducted by competent national authorities, particularly those relating to offences against the financial interests of the Union;
(b) the coordination of investigations and prosecutions referred to in point (a);
(c) the strengthening of judicial cooperation, including by resolution of conflicts of jurisdiction and by close cooperation with the European Judicial Network.
European laws shall also determine arrangements for involving the European Parliament and national Parliaments in the evaluation of Eurojust's activities.
2. In the prosecutions referred to in paragraph 1, and without prejudice to Article III-274, formal acts of judicial procedure shall be carried out by the competent national officials.
***
Compared to the current Article 31 TEU, the European Convention judiciously enlarged the scope of Eurojust’s activities and introduced the ordinary legislative procedure, giving the directly elected European Parliament the right to co-decision and enhancing transparency.
Among the minor changes by the IGC 2004 the main one was that the initiation of ‘criminal investigations’ was added.
The Treaty of Lisbon took over the text of the Constitutional Treaty with the modifications caused by general terminological differences.
In conclusion, the principal clarifications and procedures follow from the work of the European Convention about five years ago.
But let us look at what others have commented on and concluded.
***
United Kingdom
In the Statewatch analysis ‘EU Reform Treaty: Analysis 1: Version 3 JHA provisions’ (22 October 2007), Steve Peers gave the following description of what was to become Article 69d TFEU (ToL), Article 85 TFEU (page 18):
“The voting procedure is QMV and co-decision, a change from the present unanimity and consultation.”
The JHA analysis and other Statewatch analyses are available through:
http://www.statewatch.org/euconstitution.htm
***
The UK House of Commons Library Research Paper 07/86 ‘The Treaty of Lisbon: amendments to the Treaty establishing the European Community’ (published 6 December 2007) offered a brief background note on Eurojust (European Judicial Cooperation Unit) before giving the following assessment (page 42), followed by two pages of discussion:
“Its remit and powers would be substantially increased by Article 69B. Article 69D(1) sets out its “mission”, which is to support and strengthen coordination and cooperation between national prosecuting authorities “in relation to serious crime affecting two or more Member States or requiring a prosecution on common bases”. Lisbon, like the Constitution, extends Eurojust’s mission to include investigating authorities. The Article provides that regulations adopted by the OLP will determine its structure, workings, scope of action and tasks, …”
The Library Research Paper 07/86 is available at:
http://www.parliament.uk/commons/lib/research/rp2007/rp07-086.pdf
***
The Foreign and Commonwealth Office (FCO) presents a convenient short version of the Lisbon Treaty amendments in ‘A comparative table of the current EC and EU treaties as amended by the Treaty of Lisbon’ (Command Paper 7311, published 21 January 2008), offering the following summary of the results with regard to Article 85 TFEU, Article 69d TFEU (ToL) in the original Lisbon Treaty:
“Draws on Article 31(2) TEU. Co-decision for regulations on Eurojust’s structure, operation, field of action and tasks.”
The FCO comparative table is available at:
http://www.official-documents.gov.uk/document/cm73/7311/7311.asp
***
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 ‘Police and judicial cooperation in criminal matters’ at length in Chapter 6 (from page 139). Under ‘Eurojust and a European Public Prosecutor’ the Committee treated the extended competences of Eurojust, enhanced accountability and procedural changes (pages 149–151), and it concluded:
“6.196. There are already moves to reform Eurojust and to grant it a greater role in enhancing cooperation between national authorities. New Article 85 may facilitate more ambitious developments in the longer term.”
The report is accessible at:
http://www.publications.parliament.uk/pa/ld200708/ldselect/ldeucom/62/62.pdf
***
Sweden
The consultation paper of the government of Sweden, ‘Lissabonfördraget; Statsrådsberedningen, Departementsserien (Ds), Ds 2007:48’ published 20 December 2007, sees the establishment of Eurojust in 2002 and the opportunities offered by the Lisbon Treaty in a positive light (pages 321–323, with the quote from page 322):
”Genom inrättandet år 2002 av åklagarkontoret Eurojust har det europeiska åklagarsamarbetet fått en välkommen förstärkning. Lissabonfördraget innebär att Eurojusts arbetsuppgifter tydliggörs och att möjligheter till en vidareutveckling av Eurojustsamarbetet införs.”
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) offers, in the customary Nordic manner, a detailed description of Article 69d TFEU (ToL), renumbered Article 85 TFEU on pages 201–202. (For a local lawyer entering uncharted waters, the government bill is often the next tool of reference after the text of a statute.)
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), presents the same remarks on pages 204–205.
The ratification bill in Swedish can be accessed at:
http://www.finlex.fi/sv/esitykset/he/2008/20080023.pdf
***
The Treaty of Lisbon extends and clarifies the scope of action of Eurojust, and it moves to
‘Community’ procedures, to be known as the ordinary legislative procedure: qualified majority voting in the Council and co-decision by the European Parliament.
The Lisbon Treaty also holds out the hope of improved scrutiny by the European Parliament and national parliaments.
***
There is a joint declaration attached to the Lisbon Treaty (page 439 in the Council’s consolidated version):
27. Declaration on Article 85(1), second subparagraph, of the Treaty on the Functioning of the European Union
The Conference considers that the regulations referred to in the second subparagraph of Article 85(1) of the Treaty on the Functioning of the European Union should take into account national rules and practices relating to the initiation of criminal investigations.
***
Additional information about the European Union’s Judicial Cooperation Unit can be found through the Eurojust web site:
http://eurojust.europa.eu/
The basic acts of secondary legislation are:
Council decision of 28 February 2002 setting up Eurojust with a view to reinforcing the fight against serious crime (2002/187/JHA), OJ 6.3.2002 L 63/1
Council decision 2003/659/JHA of 18 June 2003 amending Decision 2002/187/JHA setting up Eurojust with a view to reinforcing the fight against serious crime, OJ 29.9.2003 L 245/44
***
The European Commission has pushed for the member states to transpose the powers of the national members of Europol effectively, and to beef up their powers and guarantee continuity, as seen in the Communication from the Commission to the Council and the European Palriament on the role of Eurojust and the European Judicial Network in the fight against organised crime and terrorism in the European Union, Brussels 23.10.2007, COM(2007) 644 final:
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2007:0644:FIN:EN:PDF
The Council has dealt with an initiative by fourteen member states with the stated purpose to strengthen Eurojust by amending the Decisions. See:
Initiative of the Kingdom of Belgium, the Czech Republic, the Republic of Estonia, the Kingdom of Spain, the French Republic, the Italian Republic, the Grand Duchy of Luxembourg, the Kingdom of the Netherlands, the Republic of Austria, the Republic of Poland, the Portuguese Republic, the Republic of Slovenia, the Slovak Republic and the Kingdom of Sweden with a view to adopting a Council Decision of … on the strengthening of Eurojust and amending Decision 2002/187/JHA (OJ 27.2.2008 C 54/4)
The Justice and Home Affairs Council 18 April 2008 (document 8397/08; page 17) adopted a general approach on the subject and decided to continue to work on the proposal.
In bureaucratic jargon ‘strengthening’ may mean anything until dissected, so here is an interesting EUobserver news item worth further study by interested parties, namely ‘EU states muscle in on bloc’s judicial body’, by Renata Goldirova (although the main thrust seems to be the European public prosecutor):
http://euobserver.com/22/26082
According to the 6 May 2008 story, the Commission has dropped its plans to strengthen Eurojust after being wrong-footed by a group of 14 member states, their proposal being seen as a move to put a lid on anything too ambitious by the Commission.
Ralf Grahn
P.S. Good tidings: The Consolidated versions of the Treaty on European Union and the Treaty on the Functioning of the European Union have been published in the Official Journal of the European Union, OJ 9.5.2008 C 115/1. Great!
Europe Day: Schuman declaration
The French foreign minister Robert Schuman made a proposal 9 May 1950, which led to the establishment of the first of the European communities, the European Coal and Steel Community (ECSC). Almost six decades later we have within view, through the Treaty of Lisbon, a unified European Union (EU) into which the European Community (EC) would melt.
The European Union is an ongoing effort, but despite its shortcomings it offers 500 million citizens and 27 member states the best hope for strengthened security and enhanced prosperity in an unpredictably globalising world.
On Europe Day, 9 May 2008, there is cause for each of us to think about the origins and the future of the peaceful and voluntary integration of our continent. Here is the text of the Schuman declaration:
“World peace cannot be safeguarded without the making of creative efforts proportionate to the dangers which threaten it.
The contribution which an organized and living Europe can bring to civilization is indispensable to the maintenance of peaceful relations. In taking upon herself for more than 20 years the role of champion of a united Europe, France has always had as her essential aim the service of peace. A united Europe was not achieved and we had war.
Europe will not be made all at once, or according to a single plan. It will be built through concrete achievements which first create a de facto solidarity. The coming together of the nations of Europe requires the elimination of the age-old opposition of France and Germany. Any action taken must in the first place concern these two countries.
With this aim in view, the French Government proposes that action be taken immediately on one limited but decisive point.
It proposes that Franco-German production of coal and steel as a whole be placed under a common High Authority, within the framework of an organization open to the participation of the other countries of Europe. The pooling of coal and steel production should immediately provide for the setting up of common foundations for economic development as a first step in the federation of Europe, and will change the destinies of those regions which have long been devoted to the manufacture of munitions of war, of which they have been the most constant victims.
The solidarity in production thus established will make it plain that any war between France and Germany becomes not merely unthinkable, but materially impossible. The setting up of this powerful productive unit, open to all countries willing to take part and bound ultimately to provide all the member countries with the basic elements of industrial production on the same terms, will lay a true foundation for their economic unification.
This production will be offered to the world as a whole without distinction or exception, with the aim of contributing to raising living standards and to promoting peaceful achievements. With increased resources Europe will be able to pursue the achievement of one of its essential tasks, namely, the development of the African continent. In this way, there will be realised simply and speedily that fusion of interest which is indispensable to the establishment of a common economic system; it may be the leaven from which may grow a wider and deeper community between countries long opposed to one another by sanguinary divisions.
By pooling basic production and by instituting a new High Authority, whose decisions will bind France, Germany and other member countries, this proposal will lead to the realization of the first concrete foundation of a European federation indispensable to the preservation of peace.To promote the realization of the objectives defined, the French Government is ready to open negotiations on the following bases.
The task with which this common High Authority will be charged will be that of securing in the shortest possible time the modernization of production and the improvement of its quality; the supply of coal and steel on identical terms to the French and German markets, as well as to the markets of other member countries; the development in common of exports to other countries; the equalization and improvement of the living conditions of workers in these industries.
To achieve these objectives, starting from the very different conditions in which the production of member countries is at present situated, it is proposed that certain transitional measures should be instituted, such as the application of a production and investment plan, the establishment of compensating machinery for equating prices, and the creation of a restructuring fund to facilitate the rationalization of production. The movement of coal and steel between member countries will immediately be freed from all customs duty, and will not be affected by differential transport rates. Conditions will gradually be created which will spontaneously provide for the more rational distribution of production at the highest level of productivity.
In contrast to international cartels, which tend to impose restrictive practices on distribution and the exploitation of national markets, and to maintain high profits, the organization will ensure the fusion of markets and the expansion of production.
The essential principles and undertakings defined above will be the subject of a treaty signed between the States and submitted for the ratification of their parliaments. The negotiations required to settle details of applications will be undertaken with the help of an arbitrator appointed by common agreement. He will be entrusted with the task of seeing that the agreements reached conform with the principles laid down, and, in the event of a deadlock, he will decide what solution is to be adopted.
The common High Authority entrusted with the management of the scheme will be composed of independent persons appointed by the governments, giving equal representation. A chairman will be chosen by common agreement between the governments. The Authority's decisions will be enforceable in France, Germany and other member countries. Appropriate measures will be provided for means of appeal against the decisions of the Authority.
A representative of the United Nations will be accredited to the Authority, and will be instructed to make a public report to the United Nations twice yearly, giving an account of the working of the new organization, particularly as concerns the safeguarding of its objectives.
The institution of the High Authority will in no way prejudge the methods of ownership of enterprises. In the exercise of its functions, the common High Authority will take into account the powers conferred upon the International Ruhr Authority and the obligations of all kinds imposed upon Germany, so long as these remain in force.”
Source:
European Commission web page ‘Declaration of 9 May’
http://europa.eu/abc/symbols/9-may/decl_en.htm
***
The Treaty of Lisbon is nowhere near a final answer to the challenges facing Europe, but a milestone on the road towards more fully developed European level democracy, security and prosperity.
Ralf Grahn
P.S. Although my main writing dissecting the Treaty of Lisbon will continue on this blog, I decided to establish a new one in Finnish, called Eurooppaoikeus (European law), for occasional postings
http://eurooppaoikeus.blogspot.com
The European Union is an ongoing effort, but despite its shortcomings it offers 500 million citizens and 27 member states the best hope for strengthened security and enhanced prosperity in an unpredictably globalising world.
On Europe Day, 9 May 2008, there is cause for each of us to think about the origins and the future of the peaceful and voluntary integration of our continent. Here is the text of the Schuman declaration:
“World peace cannot be safeguarded without the making of creative efforts proportionate to the dangers which threaten it.
The contribution which an organized and living Europe can bring to civilization is indispensable to the maintenance of peaceful relations. In taking upon herself for more than 20 years the role of champion of a united Europe, France has always had as her essential aim the service of peace. A united Europe was not achieved and we had war.
Europe will not be made all at once, or according to a single plan. It will be built through concrete achievements which first create a de facto solidarity. The coming together of the nations of Europe requires the elimination of the age-old opposition of France and Germany. Any action taken must in the first place concern these two countries.
With this aim in view, the French Government proposes that action be taken immediately on one limited but decisive point.
It proposes that Franco-German production of coal and steel as a whole be placed under a common High Authority, within the framework of an organization open to the participation of the other countries of Europe. The pooling of coal and steel production should immediately provide for the setting up of common foundations for economic development as a first step in the federation of Europe, and will change the destinies of those regions which have long been devoted to the manufacture of munitions of war, of which they have been the most constant victims.
The solidarity in production thus established will make it plain that any war between France and Germany becomes not merely unthinkable, but materially impossible. The setting up of this powerful productive unit, open to all countries willing to take part and bound ultimately to provide all the member countries with the basic elements of industrial production on the same terms, will lay a true foundation for their economic unification.
This production will be offered to the world as a whole without distinction or exception, with the aim of contributing to raising living standards and to promoting peaceful achievements. With increased resources Europe will be able to pursue the achievement of one of its essential tasks, namely, the development of the African continent. In this way, there will be realised simply and speedily that fusion of interest which is indispensable to the establishment of a common economic system; it may be the leaven from which may grow a wider and deeper community between countries long opposed to one another by sanguinary divisions.
By pooling basic production and by instituting a new High Authority, whose decisions will bind France, Germany and other member countries, this proposal will lead to the realization of the first concrete foundation of a European federation indispensable to the preservation of peace.To promote the realization of the objectives defined, the French Government is ready to open negotiations on the following bases.
The task with which this common High Authority will be charged will be that of securing in the shortest possible time the modernization of production and the improvement of its quality; the supply of coal and steel on identical terms to the French and German markets, as well as to the markets of other member countries; the development in common of exports to other countries; the equalization and improvement of the living conditions of workers in these industries.
To achieve these objectives, starting from the very different conditions in which the production of member countries is at present situated, it is proposed that certain transitional measures should be instituted, such as the application of a production and investment plan, the establishment of compensating machinery for equating prices, and the creation of a restructuring fund to facilitate the rationalization of production. The movement of coal and steel between member countries will immediately be freed from all customs duty, and will not be affected by differential transport rates. Conditions will gradually be created which will spontaneously provide for the more rational distribution of production at the highest level of productivity.
In contrast to international cartels, which tend to impose restrictive practices on distribution and the exploitation of national markets, and to maintain high profits, the organization will ensure the fusion of markets and the expansion of production.
The essential principles and undertakings defined above will be the subject of a treaty signed between the States and submitted for the ratification of their parliaments. The negotiations required to settle details of applications will be undertaken with the help of an arbitrator appointed by common agreement. He will be entrusted with the task of seeing that the agreements reached conform with the principles laid down, and, in the event of a deadlock, he will decide what solution is to be adopted.
The common High Authority entrusted with the management of the scheme will be composed of independent persons appointed by the governments, giving equal representation. A chairman will be chosen by common agreement between the governments. The Authority's decisions will be enforceable in France, Germany and other member countries. Appropriate measures will be provided for means of appeal against the decisions of the Authority.
A representative of the United Nations will be accredited to the Authority, and will be instructed to make a public report to the United Nations twice yearly, giving an account of the working of the new organization, particularly as concerns the safeguarding of its objectives.
The institution of the High Authority will in no way prejudge the methods of ownership of enterprises. In the exercise of its functions, the common High Authority will take into account the powers conferred upon the International Ruhr Authority and the obligations of all kinds imposed upon Germany, so long as these remain in force.”
Source:
European Commission web page ‘Declaration of 9 May’
http://europa.eu/abc/symbols/9-may/decl_en.htm
***
The Treaty of Lisbon is nowhere near a final answer to the challenges facing Europe, but a milestone on the road towards more fully developed European level democracy, security and prosperity.
Ralf Grahn
P.S. Although my main writing dissecting the Treaty of Lisbon will continue on this blog, I decided to establish a new one in Finnish, called Eurooppaoikeus (European law), for occasional postings
http://eurooppaoikeus.blogspot.com
Thursday, 8 May 2008
EU TFEU: Crime prevention
The EU Treaty of Lisbon gives the European Union the specific mandate to promote and support action of the member states in the field of crime prevention. The ordinary legislative procedure is going to apply, which means that legislation can become more effective, democratic and transparent than under current forms of intergovernmental cooperation.
***
Article 84 of the Treaty on the Functioning of the European Union (TFEU) allows EU measures to promote and support the action of member states in the field of crime prevention. The Article 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 106), with the location of the provision added from the table of equivalences (page 460 to 463):
Part Three ‘Policies and internal actions of the Union’
Title V TFEU ‘Area of freedom, security and justice’
Chapter 4 ‘Judicial cooperation in criminal matters’
Article 84 TFEU
The European Parliament and the Council, acting in accordance with the ordinary legislative procedure, may establish measures to promote and support the action of Member States in the field of crime prevention, excluding any harmonisation of the laws and regulations of the Member States.
***
In Article 2, point 67, of the Treaty of Lisbon (ToL) the intergovernmental conference (IGC 2007) stated (OJ 17.12.2007 C 306/62):
“67) Article 66 shall be replaced by Article 61 G, as set out in point 64 above, and Articles 67 to 69 shall be repealed. The following Chapter 4 and Articles 69 A to 69 E shall be inserted. Articles 69 A, 69 B and 69 D shall replace the current Article 31 of the Treaty on European Union, as set out above in point 51 of Article 1 of this Treaty: …”
The attentive reader notices that no further explanation was given about Article 69c. The IGC just presented the wording (as above; page 64) of Article 69c TFEU (ToL), which became Article 84 TFEU after renumbering in the consolidated version of the treaty. Cf. TFEU table of equivalences, OJ 17.12.2007 C 306/210.
***
There is no directly corresponding provision in the current treaties.
Although there is no specific legal base on measures to prevent crime in the current treaties, we can refer to the objective to provide citizens with a high level of security, to be achieved by ‘preventing and combating crime’ (Article 29 TEU, as well as vaguely worded legal bases in Article 34 TEU). Article 61(e) TEC mentions ‘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 Treaty on European Union’.
***
We now take a look at the previous stages of the treaty reform process.
The European Convention proposed the following Article III-173 of the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/60):
Article III-173 Draft Constitution
European laws or framework laws may establish measures to promote and support the action of Member States in the field of crime prevention. Such measures shall not include the approximation of Member States' legislative and regulatory provisions.
***
During the IGC 2004 Article III-271 of the Treaty establishing a Constitution for Europe underwent a few stylistic changes (OJ 16.12.2004 C 310/120):
Article III-272 Constitution
European laws or framework laws may establish measures to promote and support the action of Member States in the field of crime prevention, excluding any harmonisation of the laws and regulations of the Member States.
***
On this basis we conclude that the new provision was proposed by the European Convention, slightly re-worded by the IGC 2004 and finally adapted by the IGC 2007 to the terminology employed in the Treaty of Lisbon.
This preliminary conclusion can be checked simultaneously with the following resources on the contents of the Lisbon Treaty amendments.
***
United Kingdom
In the Statewatch analysis ‘EU Reform Treaty: Analysis 1: Version 3 JHA provisions’ (22 October 2007), Steve Peers gave the following explanation of what was to become Article 69c TFEU (ToL), Article 84 TFEU (page 17):
“There is no express legal base on this issue at present, but measures on crime prevention have been adopted as part of the EU’s criminal law funding programmes. The voting procedure is QMV and co-decision, a change from the present unanimity and consultation.”
The JHA analysis and other Statewatch analyses are available through:
http://www.statewatch.org/euconstitution.htm
***
The UK House of Commons Library Research Paper 07/86 ‘The Treaty of Lisbon: amendments to the Treaty establishing the European Community’ (published 6 December 2007) dealt with ‘Crime prevention’ (page 42), where it referred to one current treaty provision and explained the difference:
“Although Article 61(e) TEC currently provides that the Council shall adopt measures in the field of police and judicial cooperation in criminal matters aimed at a high level of security by preventing and combating crime, the new Article provides a legal base (not requiring unanimity) limited to incentive and supporting measures for the prevention of crime.”
The Library Research Paper 07/86 is available at:
http://www.parliament.uk/commons/lib/research/rp2007/rp07-086.pdf
***
The Foreign and Commonwealth Office (FCO) presents a convenient short version of the Lisbon Treaty amendments in ‘A comparative table of the current EC and EU treaties as amended by the Treaty of Lisbon’ (Command Paper 7311, published 21 January 2008), offering the following summary of the results with regard to Article 84 TFEU, Article 69c TFEU (ToL) in the original Lisbon Treaty:
“New. Introduces a new legal basis for crime prevention measures by co-decision, excluding harmonisation.”
The FCO comparative table is available at:
http://www.official-documents.gov.uk/document/cm73/7311/7311.asp
***
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 ‘Police and judicial cooperation in criminal matters’ at length in Chapter 6 (from page 139), but let us turn to the general remarks of the Committee on the question ‘Are the Union’s competences extended by the Lisbon Treaty? (page 27):
“2.32. Defining the extent to which the Union’s competences are extended by the Lisbon Treaty is difficult. The Treaty includes new articles formally specifying new competences, but some of these largely confirm areas of competence in which the Union has already legislated on a different legal basis. Competence is also extended less visibly by amendments to preexisting articles, but again, the significance of such changes is debated.”
The Committee went on to mention the extensions of competence listed by the Minister for Europe, Jim Murphy MP, including ‘Crime prevention: new’, but I failed to find any further discussion about Article 84 TFEU in the report.
The report is accessible at:
http://www.publications.parliament.uk/pa/ld200708/ldselect/ldeucom/62/62.pdf
***
Sweden
The consultation paper of the government of Sweden, ‘Lissabonfördraget; Statsrådsberedningen, Departementsserien (Ds), Ds 2007:48’ published 20 December 2007, offers a positive evaluation of crime prevention (pages 317–318):
“För att uppnå målet med frihet, säkerhet och rättvisa är det viktigt med ett effektivt brottsförebyggande arbete. Genom den särskilda artikel som nu förs in i EUF-fördraget (artikel 69c) ges unionen uttrycklig möjlighet att uppmuntra och stödja medlemmarna i detta arbete.”
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 detailed description of Article 69c TFEU (ToL), renumbered Article 84 TFEU on page 201.
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 203–204.
The ratification bill in Swedish can be accessed at:
http://www.finlex.fi/sv/esitykset/he/2008/20080023.pdf
***
All in all, the ‘new’ legal base for EU crime prevention measures brought about by the Treaty of Lisbon is new in its clarity and specificity, but not a real novelty when it comes to the scope for EU action.
The real change is that ‘Community’ procedures apply, to be known as the ordinary legislative procedure: qualified majority voting in the Council and co-decision by the European Parliament.
***
The interested reader can compare the special provision on promoting and supporting action for crime prevention with the general classification of EU competences in the Treaty of Lisbon.
Article 3 TFEU lists the areas of exclusive EU competence.
Article 4 TFEU lists the areas where competence is shared between the EU and the member states, with the area of freedom, security and justice mentioned in Article 4(2)(j).
Article 6 TFEU lists the areas where the EU has competence to carry out actions to support, coordinate or supplement the actions of the member states, but these larger ‘chunks’ do not mention crime prevention, although the special provision in Article 84 TFEU has many similar traits.
***
The reader who wants to explore what the European Union actually does in the field of crime prevention can start with the European Commission’s Justice and home affairs web page ‘Prevention of and Fight against Crime’(latest addition 29 April 2008):
http://ec.europa.eu/justice_home/funding/isec/funding_isec_en.htm
Ralf Grahn
***
Article 84 of the Treaty on the Functioning of the European Union (TFEU) allows EU measures to promote and support the action of member states in the field of crime prevention. The Article 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 106), with the location of the provision added from the table of equivalences (page 460 to 463):
Part Three ‘Policies and internal actions of the Union’
Title V TFEU ‘Area of freedom, security and justice’
Chapter 4 ‘Judicial cooperation in criminal matters’
Article 84 TFEU
The European Parliament and the Council, acting in accordance with the ordinary legislative procedure, may establish measures to promote and support the action of Member States in the field of crime prevention, excluding any harmonisation of the laws and regulations of the Member States.
***
In Article 2, point 67, of the Treaty of Lisbon (ToL) the intergovernmental conference (IGC 2007) stated (OJ 17.12.2007 C 306/62):
“67) Article 66 shall be replaced by Article 61 G, as set out in point 64 above, and Articles 67 to 69 shall be repealed. The following Chapter 4 and Articles 69 A to 69 E shall be inserted. Articles 69 A, 69 B and 69 D shall replace the current Article 31 of the Treaty on European Union, as set out above in point 51 of Article 1 of this Treaty: …”
The attentive reader notices that no further explanation was given about Article 69c. The IGC just presented the wording (as above; page 64) of Article 69c TFEU (ToL), which became Article 84 TFEU after renumbering in the consolidated version of the treaty. Cf. TFEU table of equivalences, OJ 17.12.2007 C 306/210.
***
There is no directly corresponding provision in the current treaties.
Although there is no specific legal base on measures to prevent crime in the current treaties, we can refer to the objective to provide citizens with a high level of security, to be achieved by ‘preventing and combating crime’ (Article 29 TEU, as well as vaguely worded legal bases in Article 34 TEU). Article 61(e) TEC mentions ‘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 Treaty on European Union’.
***
We now take a look at the previous stages of the treaty reform process.
The European Convention proposed the following Article III-173 of the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/60):
Article III-173 Draft Constitution
European laws or framework laws may establish measures to promote and support the action of Member States in the field of crime prevention. Such measures shall not include the approximation of Member States' legislative and regulatory provisions.
***
During the IGC 2004 Article III-271 of the Treaty establishing a Constitution for Europe underwent a few stylistic changes (OJ 16.12.2004 C 310/120):
Article III-272 Constitution
European laws or framework laws may establish measures to promote and support the action of Member States in the field of crime prevention, excluding any harmonisation of the laws and regulations of the Member States.
***
On this basis we conclude that the new provision was proposed by the European Convention, slightly re-worded by the IGC 2004 and finally adapted by the IGC 2007 to the terminology employed in the Treaty of Lisbon.
This preliminary conclusion can be checked simultaneously with the following resources on the contents of the Lisbon Treaty amendments.
***
United Kingdom
In the Statewatch analysis ‘EU Reform Treaty: Analysis 1: Version 3 JHA provisions’ (22 October 2007), Steve Peers gave the following explanation of what was to become Article 69c TFEU (ToL), Article 84 TFEU (page 17):
“There is no express legal base on this issue at present, but measures on crime prevention have been adopted as part of the EU’s criminal law funding programmes. The voting procedure is QMV and co-decision, a change from the present unanimity and consultation.”
The JHA analysis and other Statewatch analyses are available through:
http://www.statewatch.org/euconstitution.htm
***
The UK House of Commons Library Research Paper 07/86 ‘The Treaty of Lisbon: amendments to the Treaty establishing the European Community’ (published 6 December 2007) dealt with ‘Crime prevention’ (page 42), where it referred to one current treaty provision and explained the difference:
“Although Article 61(e) TEC currently provides that the Council shall adopt measures in the field of police and judicial cooperation in criminal matters aimed at a high level of security by preventing and combating crime, the new Article provides a legal base (not requiring unanimity) limited to incentive and supporting measures for the prevention of crime.”
The Library Research Paper 07/86 is available at:
http://www.parliament.uk/commons/lib/research/rp2007/rp07-086.pdf
***
The Foreign and Commonwealth Office (FCO) presents a convenient short version of the Lisbon Treaty amendments in ‘A comparative table of the current EC and EU treaties as amended by the Treaty of Lisbon’ (Command Paper 7311, published 21 January 2008), offering the following summary of the results with regard to Article 84 TFEU, Article 69c TFEU (ToL) in the original Lisbon Treaty:
“New. Introduces a new legal basis for crime prevention measures by co-decision, excluding harmonisation.”
The FCO comparative table is available at:
http://www.official-documents.gov.uk/document/cm73/7311/7311.asp
***
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 ‘Police and judicial cooperation in criminal matters’ at length in Chapter 6 (from page 139), but let us turn to the general remarks of the Committee on the question ‘Are the Union’s competences extended by the Lisbon Treaty? (page 27):
“2.32. Defining the extent to which the Union’s competences are extended by the Lisbon Treaty is difficult. The Treaty includes new articles formally specifying new competences, but some of these largely confirm areas of competence in which the Union has already legislated on a different legal basis. Competence is also extended less visibly by amendments to preexisting articles, but again, the significance of such changes is debated.”
The Committee went on to mention the extensions of competence listed by the Minister for Europe, Jim Murphy MP, including ‘Crime prevention: new’, but I failed to find any further discussion about Article 84 TFEU in the report.
The report is accessible at:
http://www.publications.parliament.uk/pa/ld200708/ldselect/ldeucom/62/62.pdf
***
Sweden
The consultation paper of the government of Sweden, ‘Lissabonfördraget; Statsrådsberedningen, Departementsserien (Ds), Ds 2007:48’ published 20 December 2007, offers a positive evaluation of crime prevention (pages 317–318):
“För att uppnå målet med frihet, säkerhet och rättvisa är det viktigt med ett effektivt brottsförebyggande arbete. Genom den särskilda artikel som nu förs in i EUF-fördraget (artikel 69c) ges unionen uttrycklig möjlighet att uppmuntra och stödja medlemmarna i detta arbete.”
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 detailed description of Article 69c TFEU (ToL), renumbered Article 84 TFEU on page 201.
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 203–204.
The ratification bill in Swedish can be accessed at:
http://www.finlex.fi/sv/esitykset/he/2008/20080023.pdf
***
All in all, the ‘new’ legal base for EU crime prevention measures brought about by the Treaty of Lisbon is new in its clarity and specificity, but not a real novelty when it comes to the scope for EU action.
The real change is that ‘Community’ procedures apply, to be known as the ordinary legislative procedure: qualified majority voting in the Council and co-decision by the European Parliament.
***
The interested reader can compare the special provision on promoting and supporting action for crime prevention with the general classification of EU competences in the Treaty of Lisbon.
Article 3 TFEU lists the areas of exclusive EU competence.
Article 4 TFEU lists the areas where competence is shared between the EU and the member states, with the area of freedom, security and justice mentioned in Article 4(2)(j).
Article 6 TFEU lists the areas where the EU has competence to carry out actions to support, coordinate or supplement the actions of the member states, but these larger ‘chunks’ do not mention crime prevention, although the special provision in Article 84 TFEU has many similar traits.
***
The reader who wants to explore what the European Union actually does in the field of crime prevention can start with the European Commission’s Justice and home affairs web page ‘Prevention of and Fight against Crime’(latest addition 29 April 2008):
http://ec.europa.eu/justice_home/funding/isec/funding_isec_en.htm
Ralf Grahn
Wednesday, 7 May 2008
EU TFEU: Cross-border crime
The EU Treaty of Lisbon clarifies the powers to establish minimum rules concerning the definition of criminal offences and sanctions in the areas of particularly serious crime with a cross-border dimension. Qualified majority voting in the Council and co-legislation by the European Parliament make for more effective, democratic and transparent law-making.
There is an emergency brake for laggards, and enhanced cooperation for member states willing to move forward.
Here are the ‘nuts and bolts’ of the drafting history of Article 83 TFEU, and some further reading on the substantive contents of the new provision.
***
Article 83 of the Treaty on the Functioning of the European Union (TFEU) deals with establishing minimum rules concerning criminal offences and sanctions for serious crime with cross-border dimensions. The Article 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 105–106), with the location of the provision added from the table of equivalences (page 460 to 463):
Part Three ‘Policies and internal actions of the Union’
Title V TFEU ‘Area of freedom, security and justice’
Chapter 4 ‘Judicial cooperation in criminal matters’
Article 83
(ex Article 31 TEU)
1. The European Parliament and the Council may, by means of directives adopted in accordance with the ordinary legislative procedure, establish minimum rules concerning the definition of criminal offences and sanctions in the areas of particularly serious crime with a cross-border dimension resulting from the nature or impact of such offences or from a special need to combat them on a common basis.
These areas of crime are the following: terrorism, trafficking in human beings and sexual exploitation of women and children, illicit drug trafficking, illicit arms trafficking, money laundering, corruption, counterfeiting of means of payment, computer crime and organised crime.
On the basis of developments in crime, the Council may adopt a decision identifying other areas of crime that meet the criteria specified in this paragraph. It shall act unanimously after obtaining the consent of the European Parliament.
2. If the approximation of criminal laws and regulations of the Member States proves essential to ensure the effective implementation of a Union policy in an area which has been subject to harmonisation measures, directives may establish minimum rules with regard to the definition of criminal offences and sanctions in the area concerned.
Such directives shall be adopted by the same ordinary or special legislative procedure as was followed for the adoption of the harmonisation measures in question, without prejudice to Article 76.
3. Where a member of the Council considers that a draft directive as referred to in paragraph 1 or 2 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 nine 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 Article 20(2) of the Treaty on European Union and Article 329(1) of this Treaty shall be deemed to be granted and the provisions on enhanced cooperation shall apply.
***
In Article 2, point 67, of the Treaty of Lisbon (ToL) the intergovernmental conference (IGC 2007) stated (OJ 17.12.2007 C 306/62):
“67) Article 66 shall be replaced by Article 61 G, as set out in point 64 above, and Articles 67 to 69 shall be repealed. The following Chapter 4 and Articles 69 A to 69 E shall be inserted. Articles 69 A, 69 B and 69 D shall replace the current Article 31 of the Treaty on European Union, as set out above in point 51 of Article 1 of this Treaty: …”
It then went on to present the agreed wording (as above, except the referrals later renumbered) of Article 69b TFEU (ToL), which became Article 83 TFEU after renumbering in the consolidated version of the treaty. Cf. TFEU table of equivalences, OJ 17.12.2007 C 306/210.
One minor difference was noted between the two versions of the second paragraph. In the ToL version there was only one paragraph 2 (OJ 17.12.2007 C 306/64), but in the Council’s consolidated version the second sentence ‘Such directives …’ had become a second subparagraph.
***
Article 31 of the current Treaty on European Union (TEU), to be replaced partly by Article 82 TFEU, is found in TEU Title VI ‘Provisions on police and judicial cooperation in criminal matters’, in the latest consolidated version of the current treaties (OJ 29.12.2006 C 321 E/25):
Article 31 TEU
1. Common action on judicial cooperation in criminal matters shall include:
(a) facilitating and accelerating cooperation between competent ministries and judicial or equivalent authorities of the Member States, including, where appropriate, cooperation through Eurojust, in relation to proceedings and the enforcement of decisions;
(b) facilitating extradition between Member States;
(c) ensuring compatibility in rules applicable in the Member States, as may be necessary to improve such cooperation;
(d) preventing conflicts of jurisdiction between Member States;
(e) progressively adopting measures establishing minimum rules relating to the constituent elements of criminal acts and to penalties in the fields of organised crime, terrorism and illicit drug trafficking.
2. The Council shall encourage cooperation through Eurojust by:
(a) enabling Eurojust to facilitate proper coordination between Member States' national prosecuting authorities;
(b) promoting support by Eurojust for criminal investigations in cases of serious cross-border crime, particularly in the case of organised crime, taking account, in particular, of analyses carried out by Europol;
(c) facilitating close cooperation between Eurojust and the European Judicial Network, particularly, in order to facilitate the execution of letters rogatory and the implementation of extradition requests.
***
We look at the previous stages of the treaty reform process.
The European Convention proposed the following Article III-172 of the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/60):
Article III-172 Draft Constitution
1. European framework laws may establish minimum rules concerning the definition of criminal offences and sanctions in the areas of particularly serious crime with cross-border dimensions resulting from the nature or impact of such offences or from a special need to combat them on a common basis.
These areas of crime are the following: terrorism, trafficking in human beings and sexual exploitation of women and children, illicit drug trafficking, illicit arms trafficking, money laundering, corruption, counterfeiting of means of payment, computer crime and organised crime.
On the basis of developments in crime, the Council of Ministers may adopt a European decision identifying other areas of crime that meet the criteria specified in this paragraph. It shall act unanimously after obtaining the consent of the European Parliament.
2. If the approximation of criminal legislation proves essential to ensure the effective implementation of a Union policy in an area which has been subject to harmonisation measures, European framework laws may establish minimum rules with regard to the definition of criminal offences and sanctions in the area concerned.
Without prejudice to Article III-165, such framework laws shall be adopted by the same procedure as was followed for the adoption of the harmonisation measures referred to in the preceding subparagraph.
***
The IGC 2004 agreed on the wording of the first two paragraphs of Article III-271 of the Treaty establishing a Constitution for Europe with a few stylistic changes, but added a third paragraph with the so called emergency brake and a fourth paragraph authorising enhanced cooperation among at least a third of member states willing and able (OJ 16.12.2004 C 310/119–120):
Article III-271 Constitution
1. European framework laws may establish minimum rules concerning the definition of criminal offences and sanctions in the areas of particularly serious crime with a cross-border dimension resulting from the nature or impact of such offences or from a special need to combat them on a common basis.
These areas of crime are the following: terrorism, trafficking in human beings and sexual exploitation of women and children, illicit drug trafficking, illicit arms trafficking, money laundering, corruption, counterfeiting of means of payment, computer crime and organised crime.
On the basis of developments in crime, the Council may adopt a European decision identifying other areas of crime that meet the criteria specified in this paragraph. It shall act unanimously after obtaining the consent of the European Parliament.
2. If the approximation of criminal laws and regulations of the Member States proves essential to ensure the effective implementation of a Union policy in an area which has been subject to harmonisation measures, European framework laws may establish minimum rules with regard to the definition of criminal offences and sanctions in the area concerned. Such framework laws shall be adopted by the same procedure as was followed for the adoption of the harmonisation measures in question, without prejudice to Article III-264.
3. Where a member of the Council considers that a draft European framework law as referred to in paragraph 1 or 2 would affect fundamental aspects of its criminal justice system, it may request that the draft framework law be referred to the European Council. In that case, where the procedure referred to in Article III-396 is applicable, it 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 where it is applicable, or
(b) request the Commission or the group of Member States from which the draft originates to submit a new draft; in that case, the act originally proposed shall be deemed not to have been adopted.
4. If, by the end of the period referred to in paragraph 3, either no action has been taken by the European Council or if, within 12 months from the submission of a new draft under paragraph 3(b), the European framework law has not been adopted, and at least one third of the Member States wish to establish enhanced cooperation on the basis of the draft framework law 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.
***
The provision we are studying has changed at every stage of the treaty reform process. The current Article 31 TEU gives only vague indications of where the present intergovernmental cooperation might lead.
The European Convention gave the provision its essential contents, which survived two intergovernmental conferences.
The IGC 2004 inserted the ‘emergency brake’ for each member state worried that fundamental aspects of its criminal justice system might be affected. This was counterbalanced by the guarantee that at least a third of the member states would be able to advance if unanimity could not be found in the European Council.
The IGC 2007 took over the text of the Constitutional Treaty with the general terminological changes used in the Treaty of Lisbon, but the third and fourth paragraph were re-written according to the IGC 2007 Mandate (Council document 11218/07; point 19(l) on page 8 and Annex 2, point 2(c) on page 16).
Since unanimous decision-making easily leads to paralysis or acts based on the lowest common denominator, it is important that recalcitrant members do not stand in the way of progress, if a group of member states are willing and able to forge ahead. The unity of EU legislation is sacrificed (even more than today), but enhanced cooperation allows experiments within the EU structures instead of outside, which has been the case with the Schengen, Dublin and Prüm Conventions.
***
The United Kingdom, with its predilection for minimalism and its opt-outs and emergency brakes, is a fascinating object of study. We look at some British views.
The Foreign and Commonwealth Office (FCO) presents a short version of the Lisbon Treaty amendments in ‘A comparative table of the current EC and EU treaties as amended by the Treaty of Lisbon’ (Command Paper 7311, published 21 January 2008), offering the following summary of the results with regard to Article 83 TFEU, Article 69b TFEU (ToL) in the original Lisbon Treaty:
“Draws on Article 31(1)(e) TEU. Decision-making moves to co-decision. A new passerelle enables the Council, by unanimity and with EP consent, to identify additional areas of serious cross-border crime that might be the subject of minimum rules. The adoption of minimum rules is subject to a new emergency brake procedure.”
The FCO comparative table is available at:
http://www.official-documents.gov.uk/document/cm73/7311/7311.asp
***
The UK House of Commons Library Research Paper 07/86 ‘The Treaty of Lisbon: amendments to the Treaty establishing the European Community’ (published 6 December 2007) dealt with ‘Approximation of criminal law’ (page 41), where it quoted the European Scrutiny Committee:
“…, harmonisation of criminal law within the European Union should proceed by agreement of all Member States, or it should not proceed at all.”
The Research Paper 07/86 is available at:
http://www.parliament.uk/commons/lib/research/rp2007/rp07-086.pdf
***
In the Statewatch analysis ‘EU Reform Treaty: Analysis 1: Version 3 JHA provisions’ (22 October 2007), Steve Peers gave a thorough explanation of what was to become Article 69b TFEU (ToL), Article 83 TFEU. He remarked on the changes agreed in the IGC 2007 Mandate and remarked i.a. (pages 16–17):
“The voting procedures otherwise is QMV and co-decision, a change from the present unanimity and consultation.”
“The competence on these issues is far more precise than the current Article 31(1)(e) TEU …”
“Paragraph 2 would resolve a long-running dispute as to whether, and to what extent, under the current Treaties, the ‘first pillar’ can be used to adopt criminal law measeures …”
The JHA analysis and other Statewatch analyses are available through:
http://www.statewatch.org/euconstitution.htm
***
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 ‘Police and judicial cooperation in criminal matters’ at length, with the pages 143 to 149 dedicated to an interesting and enlightening treatment of Article 83 TFEU under ‘Approximation of substantive criminal law’.
The report is accessible at:
http://www.publications.parliament.uk/pa/ld200708/ldselect/ldeucom/62/62.pdf
Ralf Grahn
There is an emergency brake for laggards, and enhanced cooperation for member states willing to move forward.
Here are the ‘nuts and bolts’ of the drafting history of Article 83 TFEU, and some further reading on the substantive contents of the new provision.
***
Article 83 of the Treaty on the Functioning of the European Union (TFEU) deals with establishing minimum rules concerning criminal offences and sanctions for serious crime with cross-border dimensions. The Article 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 105–106), with the location of the provision added from the table of equivalences (page 460 to 463):
Part Three ‘Policies and internal actions of the Union’
Title V TFEU ‘Area of freedom, security and justice’
Chapter 4 ‘Judicial cooperation in criminal matters’
Article 83
(ex Article 31 TEU)
1. The European Parliament and the Council may, by means of directives adopted in accordance with the ordinary legislative procedure, establish minimum rules concerning the definition of criminal offences and sanctions in the areas of particularly serious crime with a cross-border dimension resulting from the nature or impact of such offences or from a special need to combat them on a common basis.
These areas of crime are the following: terrorism, trafficking in human beings and sexual exploitation of women and children, illicit drug trafficking, illicit arms trafficking, money laundering, corruption, counterfeiting of means of payment, computer crime and organised crime.
On the basis of developments in crime, the Council may adopt a decision identifying other areas of crime that meet the criteria specified in this paragraph. It shall act unanimously after obtaining the consent of the European Parliament.
2. If the approximation of criminal laws and regulations of the Member States proves essential to ensure the effective implementation of a Union policy in an area which has been subject to harmonisation measures, directives may establish minimum rules with regard to the definition of criminal offences and sanctions in the area concerned.
Such directives shall be adopted by the same ordinary or special legislative procedure as was followed for the adoption of the harmonisation measures in question, without prejudice to Article 76.
3. Where a member of the Council considers that a draft directive as referred to in paragraph 1 or 2 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 nine 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 Article 20(2) of the Treaty on European Union and Article 329(1) of this Treaty shall be deemed to be granted and the provisions on enhanced cooperation shall apply.
***
In Article 2, point 67, of the Treaty of Lisbon (ToL) the intergovernmental conference (IGC 2007) stated (OJ 17.12.2007 C 306/62):
“67) Article 66 shall be replaced by Article 61 G, as set out in point 64 above, and Articles 67 to 69 shall be repealed. The following Chapter 4 and Articles 69 A to 69 E shall be inserted. Articles 69 A, 69 B and 69 D shall replace the current Article 31 of the Treaty on European Union, as set out above in point 51 of Article 1 of this Treaty: …”
It then went on to present the agreed wording (as above, except the referrals later renumbered) of Article 69b TFEU (ToL), which became Article 83 TFEU after renumbering in the consolidated version of the treaty. Cf. TFEU table of equivalences, OJ 17.12.2007 C 306/210.
One minor difference was noted between the two versions of the second paragraph. In the ToL version there was only one paragraph 2 (OJ 17.12.2007 C 306/64), but in the Council’s consolidated version the second sentence ‘Such directives …’ had become a second subparagraph.
***
Article 31 of the current Treaty on European Union (TEU), to be replaced partly by Article 82 TFEU, is found in TEU Title VI ‘Provisions on police and judicial cooperation in criminal matters’, in the latest consolidated version of the current treaties (OJ 29.12.2006 C 321 E/25):
Article 31 TEU
1. Common action on judicial cooperation in criminal matters shall include:
(a) facilitating and accelerating cooperation between competent ministries and judicial or equivalent authorities of the Member States, including, where appropriate, cooperation through Eurojust, in relation to proceedings and the enforcement of decisions;
(b) facilitating extradition between Member States;
(c) ensuring compatibility in rules applicable in the Member States, as may be necessary to improve such cooperation;
(d) preventing conflicts of jurisdiction between Member States;
(e) progressively adopting measures establishing minimum rules relating to the constituent elements of criminal acts and to penalties in the fields of organised crime, terrorism and illicit drug trafficking.
2. The Council shall encourage cooperation through Eurojust by:
(a) enabling Eurojust to facilitate proper coordination between Member States' national prosecuting authorities;
(b) promoting support by Eurojust for criminal investigations in cases of serious cross-border crime, particularly in the case of organised crime, taking account, in particular, of analyses carried out by Europol;
(c) facilitating close cooperation between Eurojust and the European Judicial Network, particularly, in order to facilitate the execution of letters rogatory and the implementation of extradition requests.
***
We look at the previous stages of the treaty reform process.
The European Convention proposed the following Article III-172 of the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/60):
Article III-172 Draft Constitution
1. European framework laws may establish minimum rules concerning the definition of criminal offences and sanctions in the areas of particularly serious crime with cross-border dimensions resulting from the nature or impact of such offences or from a special need to combat them on a common basis.
These areas of crime are the following: terrorism, trafficking in human beings and sexual exploitation of women and children, illicit drug trafficking, illicit arms trafficking, money laundering, corruption, counterfeiting of means of payment, computer crime and organised crime.
On the basis of developments in crime, the Council of Ministers may adopt a European decision identifying other areas of crime that meet the criteria specified in this paragraph. It shall act unanimously after obtaining the consent of the European Parliament.
2. If the approximation of criminal legislation proves essential to ensure the effective implementation of a Union policy in an area which has been subject to harmonisation measures, European framework laws may establish minimum rules with regard to the definition of criminal offences and sanctions in the area concerned.
Without prejudice to Article III-165, such framework laws shall be adopted by the same procedure as was followed for the adoption of the harmonisation measures referred to in the preceding subparagraph.
***
The IGC 2004 agreed on the wording of the first two paragraphs of Article III-271 of the Treaty establishing a Constitution for Europe with a few stylistic changes, but added a third paragraph with the so called emergency brake and a fourth paragraph authorising enhanced cooperation among at least a third of member states willing and able (OJ 16.12.2004 C 310/119–120):
Article III-271 Constitution
1. European framework laws may establish minimum rules concerning the definition of criminal offences and sanctions in the areas of particularly serious crime with a cross-border dimension resulting from the nature or impact of such offences or from a special need to combat them on a common basis.
These areas of crime are the following: terrorism, trafficking in human beings and sexual exploitation of women and children, illicit drug trafficking, illicit arms trafficking, money laundering, corruption, counterfeiting of means of payment, computer crime and organised crime.
On the basis of developments in crime, the Council may adopt a European decision identifying other areas of crime that meet the criteria specified in this paragraph. It shall act unanimously after obtaining the consent of the European Parliament.
2. If the approximation of criminal laws and regulations of the Member States proves essential to ensure the effective implementation of a Union policy in an area which has been subject to harmonisation measures, European framework laws may establish minimum rules with regard to the definition of criminal offences and sanctions in the area concerned. Such framework laws shall be adopted by the same procedure as was followed for the adoption of the harmonisation measures in question, without prejudice to Article III-264.
3. Where a member of the Council considers that a draft European framework law as referred to in paragraph 1 or 2 would affect fundamental aspects of its criminal justice system, it may request that the draft framework law be referred to the European Council. In that case, where the procedure referred to in Article III-396 is applicable, it 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 where it is applicable, or
(b) request the Commission or the group of Member States from which the draft originates to submit a new draft; in that case, the act originally proposed shall be deemed not to have been adopted.
4. If, by the end of the period referred to in paragraph 3, either no action has been taken by the European Council or if, within 12 months from the submission of a new draft under paragraph 3(b), the European framework law has not been adopted, and at least one third of the Member States wish to establish enhanced cooperation on the basis of the draft framework law 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.
***
The provision we are studying has changed at every stage of the treaty reform process. The current Article 31 TEU gives only vague indications of where the present intergovernmental cooperation might lead.
The European Convention gave the provision its essential contents, which survived two intergovernmental conferences.
The IGC 2004 inserted the ‘emergency brake’ for each member state worried that fundamental aspects of its criminal justice system might be affected. This was counterbalanced by the guarantee that at least a third of the member states would be able to advance if unanimity could not be found in the European Council.
The IGC 2007 took over the text of the Constitutional Treaty with the general terminological changes used in the Treaty of Lisbon, but the third and fourth paragraph were re-written according to the IGC 2007 Mandate (Council document 11218/07; point 19(l) on page 8 and Annex 2, point 2(c) on page 16).
Since unanimous decision-making easily leads to paralysis or acts based on the lowest common denominator, it is important that recalcitrant members do not stand in the way of progress, if a group of member states are willing and able to forge ahead. The unity of EU legislation is sacrificed (even more than today), but enhanced cooperation allows experiments within the EU structures instead of outside, which has been the case with the Schengen, Dublin and Prüm Conventions.
***
The United Kingdom, with its predilection for minimalism and its opt-outs and emergency brakes, is a fascinating object of study. We look at some British views.
The Foreign and Commonwealth Office (FCO) presents a short version of the Lisbon Treaty amendments in ‘A comparative table of the current EC and EU treaties as amended by the Treaty of Lisbon’ (Command Paper 7311, published 21 January 2008), offering the following summary of the results with regard to Article 83 TFEU, Article 69b TFEU (ToL) in the original Lisbon Treaty:
“Draws on Article 31(1)(e) TEU. Decision-making moves to co-decision. A new passerelle enables the Council, by unanimity and with EP consent, to identify additional areas of serious cross-border crime that might be the subject of minimum rules. The adoption of minimum rules is subject to a new emergency brake procedure.”
The FCO comparative table is available at:
http://www.official-documents.gov.uk/document/cm73/7311/7311.asp
***
The UK House of Commons Library Research Paper 07/86 ‘The Treaty of Lisbon: amendments to the Treaty establishing the European Community’ (published 6 December 2007) dealt with ‘Approximation of criminal law’ (page 41), where it quoted the European Scrutiny Committee:
“…, harmonisation of criminal law within the European Union should proceed by agreement of all Member States, or it should not proceed at all.”
The Research Paper 07/86 is available at:
http://www.parliament.uk/commons/lib/research/rp2007/rp07-086.pdf
***
In the Statewatch analysis ‘EU Reform Treaty: Analysis 1: Version 3 JHA provisions’ (22 October 2007), Steve Peers gave a thorough explanation of what was to become Article 69b TFEU (ToL), Article 83 TFEU. He remarked on the changes agreed in the IGC 2007 Mandate and remarked i.a. (pages 16–17):
“The voting procedures otherwise is QMV and co-decision, a change from the present unanimity and consultation.”
“The competence on these issues is far more precise than the current Article 31(1)(e) TEU …”
“Paragraph 2 would resolve a long-running dispute as to whether, and to what extent, under the current Treaties, the ‘first pillar’ can be used to adopt criminal law measeures …”
The JHA analysis and other Statewatch analyses are available through:
http://www.statewatch.org/euconstitution.htm
***
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 ‘Police and judicial cooperation in criminal matters’ at length, with the pages 143 to 149 dedicated to an interesting and enlightening treatment of Article 83 TFEU under ‘Approximation of substantive criminal law’.
The report is accessible at:
http://www.publications.parliament.uk/pa/ld200708/ldselect/ldeucom/62/62.pdf
Ralf Grahn
Tuesday, 6 May 2008
EU TFEU: Judicial cooperation in criminal matters
Mutual recognition of judgments, approximation (harmonisation) of laws and minimum procedural rules in cross-border criminal cases form the nucleus of EU judicial cooperation in criminal matters according to the Treaty of Lisbon.
***
Article 82 of the Treaty on the Functioning of the European Union (TFEU) marks the beginning of a new Chapter 4 on judicial cooperation in criminal matters. The Article 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 104–105), with the location of the provision added from the table of equivalences (page 460 to 463):
Part Three ‘Policies and internal actions of the Union’
Title V TFEU ‘Area of freedom, security and justice’
Chapter 4 ‘Judicial cooperation in criminal matters’
Article 82 TFEU
(ex Article 31 TEU)
1. Judicial cooperation in criminal matters in the Union shall be based on the principle of mutual recognition of judgments and judicial decisions and shall include the approximation of the laws and regulations of the Member States in the areas referred to in paragraph 2 and in Article 83.
The European Parliament and the Council, acting in accordance with the ordinary legislative procedure, shall adopt measures to:
(a) lay down rules and procedures for ensuring recognition throughout the Union of all forms of judgments and judicial decisions;
(b) prevent and settle conflicts of jurisdiction between Member States;
(c) support the training of the judiciary and judicial staff;
(d) facilitate cooperation between judicial or equivalent authorities of the Member States in relation to proceedings in criminal matters and the enforcement of decisions.
2. To the extent necessary to facilitate mutual recognition of judgments and judicial decisions and police and judicial cooperation in criminal matters having a cross-border dimension, the European Parliament and the Council may, by means of directives adopted in accordance with the ordinary legislative procedure, establish minimum rules. Such rules shall take into account the differences between the legal traditions and systems of the Member States.
They shall concern:
(a) mutual admissibility of evidence between Member States;
(b) the rights of individuals in criminal procedure;
(c) the rights of victims of crime;
(d) any other specific aspects of criminal procedure which the Council has identified in advance by a decision; for the adoption of such a decision, the Council shall act unanimously after obtaining the consent of the European Parliament.
Adoption of the minimum rules referred to in this paragraph shall not prevent Member States from maintaining or introducing a higher level of protection for individuals.
3. Where a member of the Council considers that a draft directive as referred to in paragraph 2 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 nine 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 Article 20(2) of the Treaty on European Union and Article 329(1) of this Treaty shall be deemed to be granted and the provisions on enhanced cooperation shall apply.
***
In Article 2, point 67, of the Treaty of Lisbon (ToL) the intergovernmental conference (IGC 2007) stated (OJ 17.12.2007 C 306/62):
“67) Article 66 shall be replaced by Article 61 G, as set out in point 64 above, and Articles 67 to 69 shall be repealed. The following Chapter 4 and Articles 69 A to 69 E shall be inserted. Articles 69 A, 69 B and 69 D shall replace the current Article 31 of the Treaty on European Union, as set out above in point 51 of Article 1 of this Treaty: …”
It then went on to present the agreed chapter heading and wording (as above, save for the referrals later renumbered) of Article 69a TFEU (ToL), which became Article 82 TFEU after renumbering in the consolidated version of the treaty. Cf. TFEU table of equivalences, OJ 17.12.2007 C 306/210.
***
Article 31 of the current Treaty on European Union (TEU), to be replaced partly by Article 82 TFEU, is found in TEU Title VI ‘Provisions on police and judicial cooperation in criminal matters’, in the latest consolidated version of the current treaties (OJ 29.12.2006 C 321 E/25):
Article 31 TEU
1. Common action on judicial cooperation in criminal matters shall include:
(a) facilitating and accelerating cooperation between competent ministries and judicial or equivalent authorities of the Member States, including, where appropriate, cooperation through Eurojust, in relation to proceedings and the enforcement of decisions;
(b) facilitating extradition between Member States;
(c) ensuring compatibility in rules applicable in the Member States, as may be necessary to improve such cooperation;
(d) preventing conflicts of jurisdiction between Member States;
(e) progressively adopting measures establishing minimum rules relating to the constituent elements of criminal acts and to penalties in the fields of organised crime, terrorism and illicit drug trafficking.
2. The Council shall encourage cooperation through Eurojust by:
(a) enabling Eurojust to facilitate proper coordination between Member States' national prosecuting authorities;
(b) promoting support by Eurojust for criminal investigations in cases of serious cross-border crime, particularly in the case of organised crime, taking account, in particular, of analyses carried out by Europol;
(c) facilitating close cooperation between Eurojust and the European Judicial Network, particularly, in order to facilitate the execution of letters rogatory and the implementation of extradition requests.
***
We look at the previous stages of the treaty reform process.
The European Convention proposed the following Article III-171 of the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/60):
Section 4
Judicial cooperation in criminal matters
Article III-171 Draft Constitution
1. Judicial cooperation in criminal matters in the Union shall be based on the principle of mutual recognition of judgments and judicial decisions and shall include the approximation of the laws and regulations of the Member States in the areas referred to in paragraph 2 and in Article III-172.
European laws or framework laws shall establish measures to:
(a) establish rules and procedures to ensure the recognition throughout the Union of all forms of judgments and judicial decisions;
(b) prevent and settle conflicts of jurisdiction between Member States;
(c) encourage the training of the judiciary and judicial staff;
(d) facilitate cooperation between judicial or equivalent authorities of the Member States in relation to proceedings in criminal matters and the enforcement of decisions.
2. In order to facilitate mutual recognition of judgments and judicial decisions and police and judicial cooperation in criminal matters having a cross-border dimension, European framework laws may establish minimum rules concerning:
(a) mutual admissibility of evidence between Member States;
(b) the rights of individuals in criminal procedure;
(c) the rights of victims of crime;
(d) any other specific aspects of criminal procedure which the Council of Ministers has identified in advance by a European decision. The Council of Ministers shall act unanimously after obtaining the consent of the European Parliament.
Adoption of such minimum rules shall not prevent Member States from maintaining or introducing a higher level of protection for the rights of individuals in criminal procedure.
***
The IGC 2004 took over, with modifications, the draft text in the first and second paragraph of Article III-270 of the Treaty establishing a Constitution for Europe, but the IGC 2004 added a third and fourth paragraph (OJ 16.12.2004 C 310/118–119):
Section 4
Judicial cooperation in criminal matters
Article III-270 Constitution
1. Judicial cooperation in criminal matters in the Union shall be based on the principle of mutual recognition of judgments and judicial decisions and shall include the approximation of the laws and regulations of the Member States in the areas referred to in paragraph 2 and in Article III-271.
European laws or framework laws shall establish measures to:
(a) lay down rules and procedures for ensuring recognition throughout the Union of all forms of judgments and judicial decisions;
(b) prevent and settle conflicts of jurisdiction between Member States;
(c) support the training of the judiciary and judicial staff;
(d) facilitate cooperation between judicial or equivalent authorities of the Member States in relation to proceedings in criminal matters and the enforcement of decisions.
2. To the extent necessary to facilitate mutual recognition of judgments and judicial decisions and police and judicial cooperation in criminal matters having a cross‑border dimension, European framework laws may establish minimum rules. Such rules shall take into account the differences between the legal traditions and systems of the Member States.
They shall concern:
(a) mutual admissibility of evidence between Member States;
(b) the rights of individuals in criminal procedure;
(c) the rights of victims of crime;
(d) any other specific aspects of criminal procedure which the Council has identified in advance by a European decision; for the adoption of such a decision, the Council shall act unanimously after obtaining the consent of the European Parliament.
Adoption of the minimum rules referred to in this paragraph shall not prevent Member States from maintaining or introducing a higher level of protection for individuals.
3. Where a member of the Council considers that a draft European framework law as referred to in paragraph 2 would affect fundamental aspects of its criminal justice system, it may request that the draft framework law 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 or the group of Member States from which the draft originates to submit a new draft; in that case, the act originally proposed shall be deemed not to have been adopted.
4. If, by the end of the period referred to in paragraph 3, either no action has been taken by the European Council or if, within 12 months from the submission of a new draft under paragraph 3(b), the European framework law has not been adopted, and at least one third of the Member States wish to establish enhanced cooperation on the basis of the draft framework law 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.
***
The current Article 31 TEU is part of Title VI ‘Provisions on police and judicial cooperation in criminal matters’, which is based on intergovernmental cooperation and constitutes the so called third pillar.
The objective of the European Convention was to form a more unified area of freedom, security and justice, by abolishing the pillar structure and moving the remaining third pillar matters under the same heading with those justice and home affairs questions, where Community or first pillar procedures applied already.
The draft Constitution re-wrote the main provision on judicial cooperation in criminal matters by clearly endorsing the principle of mutual recognition and the practice of approximation (harmonisation) of laws.
When the governments met in the IGC 2004, they accepted the general approach of the European Convention, but added certain limitations. In the second paragraph, minimum rules were to be established only ‘to the extent necessary’ and these rules were to ‘take into account the differences between the legal traditions and systems of the Member States’.
The new third paragraph instituted the so called emergency brake for each member state which considered that a draft framework law (directive) would affect fundamental aspects of its criminal justice system, but on the other hand, if the proposed act came to nothing, a group of member states could establish enhanced cooperation on the basis of the proposed draft law, as stated in paragraph 4.
The Treaty of Lisbon used its own terminology, and it streamlined paragraphs 3 and 4 on the emergency brake and enhanced cooperation, but essentially it adopted the text agreed by the IGC 2004.
***
In addition to opting out, watering down proposals made by the European Convention was described as a victory for the United Kingdom government. The Foreign and Commonwealth Office (FCO) offered the following summary in the ‘White Paper on the Treaty establishing a Constitution for Europe’ (Command Paper 6309, September 2004; page 11):
“The UK’s negotiating success at the IGC
At the European Council on 18 June, amendments to the Convention’s draft EU Constitution were set out in two documents, CIG 81/04 and CIG 85/04.These two documents superseded all other proposals for amendments made by either Presidency during the IGC. In total, these documents cover amendments on 80 different areas in the Treaty.
The UK advocated the amendments in 39 of the 80 areas covered (see chart at Annex 2). Examples range from criminal law, tax and social security to the provisions on animal welfare and the solidarity clause. These amendments were either initiated by the UK, initiated jointly with other Member States, or pushed by other Member States and supported by the UK.
The UK remained neutral on 38 areas where others had pushed for amendments which were of no substantive concern to the UK.
In the remaining three areas, the UK originally opposed the amendments, but we secured changes at the European Council which made them acceptable (e.g. provisions for the Union’s accession to the European Convention on Human Rights).
In short, nearly half the final changes to the Treaty were secured at UK instigation: a measure of the influence the UK had on its final form.”
Against this background followed the description of the negotiations on justice and home affairs from the British government’s point of view (page 31):
“Justice and Home Affairs
67. The Maastricht Treaty (1992) introduced co-operation on Justice and Home Affairs issues as the third pillar in the EU’s pillar structure with its own separate intergovernmental arrangements. The Constitution introduces qualified majority voting as the norm for JHA issues – a welcome consequence of abolishing the pillar structure (as the Government made clear at paragraph 82 of the September 2003 White Paper).
68. This means that no single Member State will be able to block action on issues like cross-border crime, drug trafficking, illegal immigration and terrorism. These are international issues where it is in our interest to work within the EU. But because of the differences in Member States’ legal traditions and systems, the Government, in its September 2003 White Paper, said that QMV would not be the most appropriate way of proceeding where significant harmonisation of criminal procedural law was concerned (paragraph 83). This commitment has been delivered upon. The Convention’s proposals for blanket QMV in criminal law were replaced by an emergency brake mechanism. This means that a Member State which cannot accept a criminal procedural law proposal can ‘pull the brake’. This stops the discussion in the Council and automatically refers it to the European Council where decisions are made by consensus. If it is still impossible to agree, then the enhanced co-operation provisions can be applied, without all the preliminary procedures needing to be applied. This means that if a third of Member States want to, they can go ahead by themselves. This enhanced flexibility is one of the benefits of the new Treaty.”
The Command Paper 6309 is available at:
http://www.fco.gov.uk/resources/en/pdf/pdf15/fco_beu_euct_whitepaper_sept04
***
About three years later, the UK government reported in the same vein on the IGC 2007 in ‘The Reform Treaty: the British approach to the European Union intergovernmental conference, July 2007’ (Command Paper 7174, published 23 July 2007; page 10):
“The Mandate agreed at the June European Council stipulates that, as part of the IGC process, the UK's right not to participate in new measures in the JHA area can be made to apply even where those measures build upon earlier agreements.
The new Treaty will also enable certain proposals for laws in criminal matters to be referred to the European Council for decision if they would affect fundamental aspects of a Member State's legal system. This is the so-called ‘emergency brake’. If all the members of the European Council do not unanimously agree the proposal will fall, or will go ahead only in the Member States that want it – and then only if at least one third choose to go forward in that way. This additional safeguard will be available even where the UK had previously chosen to opt-in to a proposal in these areas.”
The FCO view is available at:
http://www.official-documents.gov.uk/document/cm71/7174/7174.pdf
***
Having looked at some historic positions concerning the “emergency brake”, we move on to a few more British views on matters relating to EU judicial cooperation in criminal matters, now with the Treaty of Lisbon in hand.
The FCO presents a short version of the Lisbon Treaty amendments in ‘A comparative table of the current EC and EU treaties as amended by the Treaty of Lisbon’ (Command Paper 7311, published 21 January 2008), offering the following summary of the results with regard to Article 82 TFEU, formerly Article 69a TFEU (ToL):
“Draws on Article 31(1) TEU. Mutual recognition, as well as approximation of laws, is to be the basis for criminal judicial co-operation. Lists the areas in which minimum rules on criminal procedural law may be adopted. Decision-making moves to co-decision. A new passerelle enables the Council, by unanimity and with EP consent, to extend the scope of minimum rules that may be adopted. The adoption of minimum rules on criminal procedure is also subject to a new emergency brake procedure.”
The FCO comparative table is available at:
http://www.official-documents.gov.uk/document/cm73/7311/7311.asp
The UK House of Commons Library Research Paper 07/86 ‘The Treaty of Lisbon: amendments to the Treaty establishing the European Community (published 6 December 2007; pages 38–39) commented on criminal procedures:
“On criminal procedures, Article 69A goes much further than the existing Article 31(1)(c) TEU, which merely includes in the list of common actions “ensuring compatibility in rules applicable in Member States as may be necessary to improve [judicial] cooperation”. --- This is a new and potentially controversial provision. It would permit the EU to establish minimum rules relating specifically to mutual admissibility of evidence, the rights of individuals in criminal procedure, and the rights of victims of crime.”
The Research Paper 07/86, with the discussion of judicial cooperation in criminal matters continuing to page 48, is available at:
http://www.parliament.uk/commons/lib/research/rp2007/rp07-086.pdf
Steve Peers commented in the Statewatch analysis ‘EU Reform Treaty: Analysis 1: Version 3 JHA provisions’ (22 October 2007) on what was to become Article 69a TFEU (ToL), Article 82 TFEU. He remarked on the changes agreed in the IGC 2007 Mandate and remarked (page 15):
“These changes clarify the prospect of applying an ‘emergency brake’ and the possibility of a
group of Member States applying a ‘flexibility’ procedure afterward. This is distinct from the
UK, Irish and Danish power to opt out of proposals at the outset. Note that the ‘emergency
brake’ does not apply to paragraph 1.
The voting procedure otherwise is QMV and co-decision, a change from the present unanimity
and consultation.”
The JHA analysis and other Statewatch analyses are available through:
http://www.statewatch.org/euconstitution.htm
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 ‘Police and judicial cooperation in criminal matters’ at length, with the pages 139 to 143 dedicated to mutual recognition, harmonisation and criminal procedure. Here are the conclusions of the Committee:
“6.152. The new Article 82(1) confers a more specifically defined power to adopt measures of judicial cooperation in criminal matters in a more extensive but exhaustive list of areas. In particular, the new Article makes specific reference for the first time to measures to settle as well as prevent conflicts of jurisdiction and to measures to support the training of national judiciaries and their staff. The new Article replaces an existing power under Article 31(1)(a) to (d) which is of uncertain and controversial width, not least because the list of areas of potential action given is both vague and non-exclusive. Overall, the clarification and definition of power in this field by the Lisbon Treaty is unlikely to involve any significant expansion of jurisdiction, although it may encourage a more active role for the EU in the listed areas.”
---
“6.160. The extent of the Union’s existing competence in the area of criminal procedure under the existing Article 31 with its nonexhaustive list of areas of potential action is one of the matters of uncertainty and controversy already mentioned. The new Article 82(2) contains a specific and exhaustive list of three areas of potential action (concerning evidence, procedure and victims’ rights). Other areas can only be added by unanimous Council decision after obtaining the European Parliament’s consent.
6.161. Action in any of these areas is for the first time expressly limited to the extent necessary to facilitate mutual recognition of judgments and decisions and police cooperation in criminal matters “having a crossborder dimension”. The three specific areas listed are all areas where in practice the Union has been seeking in recent years to promote measures.”
The report is accessible at:
http://www.publications.parliament.uk/pa/ld200708/ldselect/ldeucom/62/62.pdf
Ralf Grahn
***
Article 82 of the Treaty on the Functioning of the European Union (TFEU) marks the beginning of a new Chapter 4 on judicial cooperation in criminal matters. The Article 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 104–105), with the location of the provision added from the table of equivalences (page 460 to 463):
Part Three ‘Policies and internal actions of the Union’
Title V TFEU ‘Area of freedom, security and justice’
Chapter 4 ‘Judicial cooperation in criminal matters’
Article 82 TFEU
(ex Article 31 TEU)
1. Judicial cooperation in criminal matters in the Union shall be based on the principle of mutual recognition of judgments and judicial decisions and shall include the approximation of the laws and regulations of the Member States in the areas referred to in paragraph 2 and in Article 83.
The European Parliament and the Council, acting in accordance with the ordinary legislative procedure, shall adopt measures to:
(a) lay down rules and procedures for ensuring recognition throughout the Union of all forms of judgments and judicial decisions;
(b) prevent and settle conflicts of jurisdiction between Member States;
(c) support the training of the judiciary and judicial staff;
(d) facilitate cooperation between judicial or equivalent authorities of the Member States in relation to proceedings in criminal matters and the enforcement of decisions.
2. To the extent necessary to facilitate mutual recognition of judgments and judicial decisions and police and judicial cooperation in criminal matters having a cross-border dimension, the European Parliament and the Council may, by means of directives adopted in accordance with the ordinary legislative procedure, establish minimum rules. Such rules shall take into account the differences between the legal traditions and systems of the Member States.
They shall concern:
(a) mutual admissibility of evidence between Member States;
(b) the rights of individuals in criminal procedure;
(c) the rights of victims of crime;
(d) any other specific aspects of criminal procedure which the Council has identified in advance by a decision; for the adoption of such a decision, the Council shall act unanimously after obtaining the consent of the European Parliament.
Adoption of the minimum rules referred to in this paragraph shall not prevent Member States from maintaining or introducing a higher level of protection for individuals.
3. Where a member of the Council considers that a draft directive as referred to in paragraph 2 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 nine 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 Article 20(2) of the Treaty on European Union and Article 329(1) of this Treaty shall be deemed to be granted and the provisions on enhanced cooperation shall apply.
***
In Article 2, point 67, of the Treaty of Lisbon (ToL) the intergovernmental conference (IGC 2007) stated (OJ 17.12.2007 C 306/62):
“67) Article 66 shall be replaced by Article 61 G, as set out in point 64 above, and Articles 67 to 69 shall be repealed. The following Chapter 4 and Articles 69 A to 69 E shall be inserted. Articles 69 A, 69 B and 69 D shall replace the current Article 31 of the Treaty on European Union, as set out above in point 51 of Article 1 of this Treaty: …”
It then went on to present the agreed chapter heading and wording (as above, save for the referrals later renumbered) of Article 69a TFEU (ToL), which became Article 82 TFEU after renumbering in the consolidated version of the treaty. Cf. TFEU table of equivalences, OJ 17.12.2007 C 306/210.
***
Article 31 of the current Treaty on European Union (TEU), to be replaced partly by Article 82 TFEU, is found in TEU Title VI ‘Provisions on police and judicial cooperation in criminal matters’, in the latest consolidated version of the current treaties (OJ 29.12.2006 C 321 E/25):
Article 31 TEU
1. Common action on judicial cooperation in criminal matters shall include:
(a) facilitating and accelerating cooperation between competent ministries and judicial or equivalent authorities of the Member States, including, where appropriate, cooperation through Eurojust, in relation to proceedings and the enforcement of decisions;
(b) facilitating extradition between Member States;
(c) ensuring compatibility in rules applicable in the Member States, as may be necessary to improve such cooperation;
(d) preventing conflicts of jurisdiction between Member States;
(e) progressively adopting measures establishing minimum rules relating to the constituent elements of criminal acts and to penalties in the fields of organised crime, terrorism and illicit drug trafficking.
2. The Council shall encourage cooperation through Eurojust by:
(a) enabling Eurojust to facilitate proper coordination between Member States' national prosecuting authorities;
(b) promoting support by Eurojust for criminal investigations in cases of serious cross-border crime, particularly in the case of organised crime, taking account, in particular, of analyses carried out by Europol;
(c) facilitating close cooperation between Eurojust and the European Judicial Network, particularly, in order to facilitate the execution of letters rogatory and the implementation of extradition requests.
***
We look at the previous stages of the treaty reform process.
The European Convention proposed the following Article III-171 of the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/60):
Section 4
Judicial cooperation in criminal matters
Article III-171 Draft Constitution
1. Judicial cooperation in criminal matters in the Union shall be based on the principle of mutual recognition of judgments and judicial decisions and shall include the approximation of the laws and regulations of the Member States in the areas referred to in paragraph 2 and in Article III-172.
European laws or framework laws shall establish measures to:
(a) establish rules and procedures to ensure the recognition throughout the Union of all forms of judgments and judicial decisions;
(b) prevent and settle conflicts of jurisdiction between Member States;
(c) encourage the training of the judiciary and judicial staff;
(d) facilitate cooperation between judicial or equivalent authorities of the Member States in relation to proceedings in criminal matters and the enforcement of decisions.
2. In order to facilitate mutual recognition of judgments and judicial decisions and police and judicial cooperation in criminal matters having a cross-border dimension, European framework laws may establish minimum rules concerning:
(a) mutual admissibility of evidence between Member States;
(b) the rights of individuals in criminal procedure;
(c) the rights of victims of crime;
(d) any other specific aspects of criminal procedure which the Council of Ministers has identified in advance by a European decision. The Council of Ministers shall act unanimously after obtaining the consent of the European Parliament.
Adoption of such minimum rules shall not prevent Member States from maintaining or introducing a higher level of protection for the rights of individuals in criminal procedure.
***
The IGC 2004 took over, with modifications, the draft text in the first and second paragraph of Article III-270 of the Treaty establishing a Constitution for Europe, but the IGC 2004 added a third and fourth paragraph (OJ 16.12.2004 C 310/118–119):
Section 4
Judicial cooperation in criminal matters
Article III-270 Constitution
1. Judicial cooperation in criminal matters in the Union shall be based on the principle of mutual recognition of judgments and judicial decisions and shall include the approximation of the laws and regulations of the Member States in the areas referred to in paragraph 2 and in Article III-271.
European laws or framework laws shall establish measures to:
(a) lay down rules and procedures for ensuring recognition throughout the Union of all forms of judgments and judicial decisions;
(b) prevent and settle conflicts of jurisdiction between Member States;
(c) support the training of the judiciary and judicial staff;
(d) facilitate cooperation between judicial or equivalent authorities of the Member States in relation to proceedings in criminal matters and the enforcement of decisions.
2. To the extent necessary to facilitate mutual recognition of judgments and judicial decisions and police and judicial cooperation in criminal matters having a cross‑border dimension, European framework laws may establish minimum rules. Such rules shall take into account the differences between the legal traditions and systems of the Member States.
They shall concern:
(a) mutual admissibility of evidence between Member States;
(b) the rights of individuals in criminal procedure;
(c) the rights of victims of crime;
(d) any other specific aspects of criminal procedure which the Council has identified in advance by a European decision; for the adoption of such a decision, the Council shall act unanimously after obtaining the consent of the European Parliament.
Adoption of the minimum rules referred to in this paragraph shall not prevent Member States from maintaining or introducing a higher level of protection for individuals.
3. Where a member of the Council considers that a draft European framework law as referred to in paragraph 2 would affect fundamental aspects of its criminal justice system, it may request that the draft framework law 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 or the group of Member States from which the draft originates to submit a new draft; in that case, the act originally proposed shall be deemed not to have been adopted.
4. If, by the end of the period referred to in paragraph 3, either no action has been taken by the European Council or if, within 12 months from the submission of a new draft under paragraph 3(b), the European framework law has not been adopted, and at least one third of the Member States wish to establish enhanced cooperation on the basis of the draft framework law 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.
***
The current Article 31 TEU is part of Title VI ‘Provisions on police and judicial cooperation in criminal matters’, which is based on intergovernmental cooperation and constitutes the so called third pillar.
The objective of the European Convention was to form a more unified area of freedom, security and justice, by abolishing the pillar structure and moving the remaining third pillar matters under the same heading with those justice and home affairs questions, where Community or first pillar procedures applied already.
The draft Constitution re-wrote the main provision on judicial cooperation in criminal matters by clearly endorsing the principle of mutual recognition and the practice of approximation (harmonisation) of laws.
When the governments met in the IGC 2004, they accepted the general approach of the European Convention, but added certain limitations. In the second paragraph, minimum rules were to be established only ‘to the extent necessary’ and these rules were to ‘take into account the differences between the legal traditions and systems of the Member States’.
The new third paragraph instituted the so called emergency brake for each member state which considered that a draft framework law (directive) would affect fundamental aspects of its criminal justice system, but on the other hand, if the proposed act came to nothing, a group of member states could establish enhanced cooperation on the basis of the proposed draft law, as stated in paragraph 4.
The Treaty of Lisbon used its own terminology, and it streamlined paragraphs 3 and 4 on the emergency brake and enhanced cooperation, but essentially it adopted the text agreed by the IGC 2004.
***
In addition to opting out, watering down proposals made by the European Convention was described as a victory for the United Kingdom government. The Foreign and Commonwealth Office (FCO) offered the following summary in the ‘White Paper on the Treaty establishing a Constitution for Europe’ (Command Paper 6309, September 2004; page 11):
“The UK’s negotiating success at the IGC
At the European Council on 18 June, amendments to the Convention’s draft EU Constitution were set out in two documents, CIG 81/04 and CIG 85/04.These two documents superseded all other proposals for amendments made by either Presidency during the IGC. In total, these documents cover amendments on 80 different areas in the Treaty.
The UK advocated the amendments in 39 of the 80 areas covered (see chart at Annex 2). Examples range from criminal law, tax and social security to the provisions on animal welfare and the solidarity clause. These amendments were either initiated by the UK, initiated jointly with other Member States, or pushed by other Member States and supported by the UK.
The UK remained neutral on 38 areas where others had pushed for amendments which were of no substantive concern to the UK.
In the remaining three areas, the UK originally opposed the amendments, but we secured changes at the European Council which made them acceptable (e.g. provisions for the Union’s accession to the European Convention on Human Rights).
In short, nearly half the final changes to the Treaty were secured at UK instigation: a measure of the influence the UK had on its final form.”
Against this background followed the description of the negotiations on justice and home affairs from the British government’s point of view (page 31):
“Justice and Home Affairs
67. The Maastricht Treaty (1992) introduced co-operation on Justice and Home Affairs issues as the third pillar in the EU’s pillar structure with its own separate intergovernmental arrangements. The Constitution introduces qualified majority voting as the norm for JHA issues – a welcome consequence of abolishing the pillar structure (as the Government made clear at paragraph 82 of the September 2003 White Paper).
68. This means that no single Member State will be able to block action on issues like cross-border crime, drug trafficking, illegal immigration and terrorism. These are international issues where it is in our interest to work within the EU. But because of the differences in Member States’ legal traditions and systems, the Government, in its September 2003 White Paper, said that QMV would not be the most appropriate way of proceeding where significant harmonisation of criminal procedural law was concerned (paragraph 83). This commitment has been delivered upon. The Convention’s proposals for blanket QMV in criminal law were replaced by an emergency brake mechanism. This means that a Member State which cannot accept a criminal procedural law proposal can ‘pull the brake’. This stops the discussion in the Council and automatically refers it to the European Council where decisions are made by consensus. If it is still impossible to agree, then the enhanced co-operation provisions can be applied, without all the preliminary procedures needing to be applied. This means that if a third of Member States want to, they can go ahead by themselves. This enhanced flexibility is one of the benefits of the new Treaty.”
The Command Paper 6309 is available at:
http://www.fco.gov.uk/resources/en/pdf/pdf15/fco_beu_euct_whitepaper_sept04
***
About three years later, the UK government reported in the same vein on the IGC 2007 in ‘The Reform Treaty: the British approach to the European Union intergovernmental conference, July 2007’ (Command Paper 7174, published 23 July 2007; page 10):
“The Mandate agreed at the June European Council stipulates that, as part of the IGC process, the UK's right not to participate in new measures in the JHA area can be made to apply even where those measures build upon earlier agreements.
The new Treaty will also enable certain proposals for laws in criminal matters to be referred to the European Council for decision if they would affect fundamental aspects of a Member State's legal system. This is the so-called ‘emergency brake’. If all the members of the European Council do not unanimously agree the proposal will fall, or will go ahead only in the Member States that want it – and then only if at least one third choose to go forward in that way. This additional safeguard will be available even where the UK had previously chosen to opt-in to a proposal in these areas.”
The FCO view is available at:
http://www.official-documents.gov.uk/document/cm71/7174/7174.pdf
***
Having looked at some historic positions concerning the “emergency brake”, we move on to a few more British views on matters relating to EU judicial cooperation in criminal matters, now with the Treaty of Lisbon in hand.
The FCO presents a short version of the Lisbon Treaty amendments in ‘A comparative table of the current EC and EU treaties as amended by the Treaty of Lisbon’ (Command Paper 7311, published 21 January 2008), offering the following summary of the results with regard to Article 82 TFEU, formerly Article 69a TFEU (ToL):
“Draws on Article 31(1) TEU. Mutual recognition, as well as approximation of laws, is to be the basis for criminal judicial co-operation. Lists the areas in which minimum rules on criminal procedural law may be adopted. Decision-making moves to co-decision. A new passerelle enables the Council, by unanimity and with EP consent, to extend the scope of minimum rules that may be adopted. The adoption of minimum rules on criminal procedure is also subject to a new emergency brake procedure.”
The FCO comparative table is available at:
http://www.official-documents.gov.uk/document/cm73/7311/7311.asp
The UK House of Commons Library Research Paper 07/86 ‘The Treaty of Lisbon: amendments to the Treaty establishing the European Community (published 6 December 2007; pages 38–39) commented on criminal procedures:
“On criminal procedures, Article 69A goes much further than the existing Article 31(1)(c) TEU, which merely includes in the list of common actions “ensuring compatibility in rules applicable in Member States as may be necessary to improve [judicial] cooperation”. --- This is a new and potentially controversial provision. It would permit the EU to establish minimum rules relating specifically to mutual admissibility of evidence, the rights of individuals in criminal procedure, and the rights of victims of crime.”
The Research Paper 07/86, with the discussion of judicial cooperation in criminal matters continuing to page 48, is available at:
http://www.parliament.uk/commons/lib/research/rp2007/rp07-086.pdf
Steve Peers commented in the Statewatch analysis ‘EU Reform Treaty: Analysis 1: Version 3 JHA provisions’ (22 October 2007) on what was to become Article 69a TFEU (ToL), Article 82 TFEU. He remarked on the changes agreed in the IGC 2007 Mandate and remarked (page 15):
“These changes clarify the prospect of applying an ‘emergency brake’ and the possibility of a
group of Member States applying a ‘flexibility’ procedure afterward. This is distinct from the
UK, Irish and Danish power to opt out of proposals at the outset. Note that the ‘emergency
brake’ does not apply to paragraph 1.
The voting procedure otherwise is QMV and co-decision, a change from the present unanimity
and consultation.”
The JHA analysis and other Statewatch analyses are available through:
http://www.statewatch.org/euconstitution.htm
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 ‘Police and judicial cooperation in criminal matters’ at length, with the pages 139 to 143 dedicated to mutual recognition, harmonisation and criminal procedure. Here are the conclusions of the Committee:
“6.152. The new Article 82(1) confers a more specifically defined power to adopt measures of judicial cooperation in criminal matters in a more extensive but exhaustive list of areas. In particular, the new Article makes specific reference for the first time to measures to settle as well as prevent conflicts of jurisdiction and to measures to support the training of national judiciaries and their staff. The new Article replaces an existing power under Article 31(1)(a) to (d) which is of uncertain and controversial width, not least because the list of areas of potential action given is both vague and non-exclusive. Overall, the clarification and definition of power in this field by the Lisbon Treaty is unlikely to involve any significant expansion of jurisdiction, although it may encourage a more active role for the EU in the listed areas.”
---
“6.160. The extent of the Union’s existing competence in the area of criminal procedure under the existing Article 31 with its nonexhaustive list of areas of potential action is one of the matters of uncertainty and controversy already mentioned. The new Article 82(2) contains a specific and exhaustive list of three areas of potential action (concerning evidence, procedure and victims’ rights). Other areas can only be added by unanimous Council decision after obtaining the European Parliament’s consent.
6.161. Action in any of these areas is for the first time expressly limited to the extent necessary to facilitate mutual recognition of judgments and decisions and police cooperation in criminal matters “having a crossborder dimension”. The three specific areas listed are all areas where in practice the Union has been seeking in recent years to promote measures.”
The report is accessible at:
http://www.publications.parliament.uk/pa/ld200708/ldselect/ldeucom/62/62.pdf
Ralf Grahn
Monday, 5 May 2008
EU TFEU: Judicial cooperation in civil matters
For citizens and businesses with cross-border contacts, EU judicial cooperation in civil matters is potentially important. The Treaty of Lisbon re-writes, clarifies and expands the current treaty provisions, but for families the attainment of cross-border rules is subject to national vetoes more limiting than even today.
***
Article 81 of the Treaty on the Functioning of the European Union (TFEU) marks the beginning and the end of a new Chapter 3 on judicial cooperation in civil matters. The Article 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 102–103), with the location of the provision added from the table of equivalences (page 460 to 463):
Part Three ‘Policies and internal actions of the Union’
Title V TFEU ‘Area of freedom, security and justice’
Chapter 3 ‘Judicial cooperation in civil matters’
Article 81 TFEU
(ex Article 65 TEC)
1. The Union shall develop judicial cooperation in civil matters having cross-border implications, based on the principle of mutual recognition of judgments and of decisions in extrajudicial cases. Such cooperation may include the adoption of measures for the approximation of the laws and regulations of the Member States.
2. For the purposes of paragraph 1, the European Parliament and the Council, acting in accordance with the ordinary legislative procedure, shall adopt measures, particularly when necessary for the proper functioning of the internal market, aimed at ensuring:
(a) the mutual recognition and enforcement between Member States of judgments and of decisions in extrajudicial cases;
(b) the cross-border service of judicial and extrajudicial documents;
(c) the compatibility of the rules applicable in the Member States concerning conflict of laws and of jurisdiction;
(d) cooperation in the taking of evidence;
(e) effective access to justice;
(f) the elimination of obstacles to the proper functioning of civil proceedings, if necessary by promoting the compatibility of the rules on civil procedure applicable in the Member States;
(g) the development of alternative methods of dispute settlement;
(h) support for the training of the judiciary and judicial staff.
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 shall not be adopted. In the absence of opposition, the Council may adopt the decision.
***
In Article 2, point 66, of the Treaty of Lisbon (ToL) the intergovernmental conference (IGC 2007) stated:
66) Article 65 shall be replaced by the following Chapter 3 and Article 65.
Then followed the wording (as above) of the new Article 65 TFEU (ToL), which became Article 81 TFEU after renumbering in the consolidated version (OJ 17.12.2007 C 306/61–62, 209).
***
Article 65 of the current Treaty establishing the European Community (TEC) is found in the latest consolidated version of the current treaties (OJ 29.12.2006 C 321 E/68–69):
Article 65 TEC
Measures in the field of judicial cooperation in civil matters having cross-border implications, to be taken in accordance with Article 67 and in so far as necessary for the proper functioning of the internal market, shall include:
(a) improving and simplifying:
— the system for cross-border service of judicial and extrajudicial documents,
— cooperation in the taking of evidence,
— the recognition and enforcement of decisions in civil and commercial cases, including decisions in extrajudicial cases;
(b) promoting the compatibility of the rules applicable in the Member States concerning the conflict of laws and of jurisdiction;
(c) eliminating obstacles to the good functioning of civil proceedings, if necessary by promoting the compatibility of the rules on civil procedure applicable in the Member States.
***
The European Convention proposed the following expanded Article III-170 of the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/59):
SECTION 3
Judicial cooperation in civil matters
Article III-170 Draft Constitution
1. The Union shall develop judicial cooperation in civil matters having cross-border implications, based on the principle of mutual recognition of judgments and decisions in extrajudicial cases. Such cooperation may include the adoption of measures for the approximation of the laws and regulations of the Member States.
2. To this end, laws or framework laws shall lay down measures aimed inter alia at ensuring:
(a) the mutual recognition and enforcement between Member States of judgments and decisions in extrajudicial cases;
(b) the cross-border service of judicial and extrajudicial documents;
(c) the compatibility of the rules applicable in the Member States concerning conflict of laws and of jurisdiction;
(d) cooperation in the taking of evidence;
(e) a high level of access to justice;
(f) the proper functioning of civil proceedings, if necessary by promoting the compatibility of the rules on civil procedure applicable in the Member States;
(g) the development of alternative methods of dispute settlement;
(h) support for the training of the judiciary and judicial staff.
3. Notwithstanding paragraph 2, measures concerning family law with cross-border implications shall be laid down in a European law or framework law of the Council of Ministers. The Council of Ministers shall act unanimously after consulting the European Parliament.
The Council of Ministers, on a proposal from the Commission, may adopt a European 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 of Ministers shall act unanimously after consulting the European Parliament.
***
The IGC 2004 took over the draft text in Article III-269 of the Treaty establishing a Constitution for Europe with a few modifications (OJ 16.12.2004 C 310/117):
SECTION 3
JUDICIAL COOPERATION IN CIVIL MATTERS
Article III-269 Constitution
1. The Union shall develop judicial cooperation in civil matters having cross‑border implications, based on the principle of mutual recognition of judgments and decisions in extrajudicial cases. Such cooperation may include the adoption of measures for the approximation of the laws and regulations of the Member States.
2. For the purposes of paragraph 1, European laws or framework laws shall establish measures, particularly when necessary for the proper functioning of the internal market, aimed at ensuring:
(a) the mutual recognition and enforcement between Member States of judgments and decisions in extrajudicial cases;
(b) the cross-border service of judicial and extrajudicial documents;
(c) the compatibility of the rules applicable in the Member States concerning conflict of laws and of jurisdiction;
(d) cooperation in the taking of evidence;
(e) effective access to justice;
(f) the elimination of obstacles to the proper functioning of civil proceedings, if necessary by promoting the compatibility of the rules on civil procedure applicable in the Member States;
(g) the development of alternative methods of dispute settlement;
(h) support for the training of the judiciary and judicial staff.
3. Notwithstanding paragraph 2, a European law or framework law of the Council shall establish measures concerning family law with cross-border implications. The Council shall act unanimously after consulting the European Parliament.
The Council, on a proposal from the Commission, may adopt a European 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.
***
Although the current Article 65 TEC includes much of the subject matter, the European Convention re-wrote, clarified and expanded the provision in Article III-170 of the draft Constitution. The ordinary legislative procedure became the main rule, instead of the complex procedures referred to in Article 67 TEC (although these lost their meaning after the transitional period and later after the adoption of co-decision, except for aspects relating to family law).
The Constitutional Treaty was, in essence, the same as the draft Constitution, but with some modifications. In addition to ‘stylistic’ changes, the IGC added the reference ‘particularly when necessary for the proper functioning of the internal market’ to paragraph 2, and ‘a high level of access to justice’ became ‘effective access to justice’ in point (e) of that paragraph.
Article 65 TFEU (ToL), renumbered Article 81 TFEU, takes over the text of the Constitutional Treaty with general editorial changes, except for one essential addition.
This followed from the IGC 2007 Mandate (Council document 11218/07, point 19(k), page 8) which stated, with the IGC 2004 as its basis:
“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).”
Annex 2, point 2(b), page 15, gave the proposed wording of the new third subparagraph of paragraph 3, only stylistically changed during the IGC 2007.
In other words, family law will continue to be an area, where unanimity in the Council is required, and moving parts of decision-making (“passerelle clause”) in family law matters with cross-border implications to the ordinary legislative procedure can be vetoed by any member state government and national parliament.
From the viewpoint of cross-border families, this may look as the camel and the eye of the needle.
***
To serve as introductory reading, both political and legal, let us take a look at a few British views on matters relating to cross-border families and other questions relating to EU judicial cooperation in civil matters.
In ‘The Reform Treaty: the British approach to the European Union intergovernmental conference, July 2007 (Command Paper 7174), the UK Foreign and Commonwealth Office had this to say (published 23 July 2008; page 10):
“The Reform Treaty retains the requirement for unanimity (i.e. a UK veto) for measures concerning family law with cross border implications. In addition, it will include a provision enabling a single national Parliament to veto any move to use the ‘minipasserelle’, which would allow for decision making on aspects of family law with crossborder implications to be changed from unanimity to co-decision and QMV.”
The FCO view is available at:
http://www.official-documents.gov.uk/document/cm71/7174/7174.pdf
The brief version of the Lisbon Treaty amendments was presented by the FCO in ‘A comparative table of the current EC and EU treaties as amended by the Treaty of Lisbon’ (Command Paper 7311, published 21 January 2008), offering the following summary of the results with regard to Article 81 TFEU, Article 65 TFEU (ToL):
“Draws on Articles 65 and 67(5) TEC. Adds new references to mutual recognition of judgments and decisions, access to justice, alternative dispute settlement methods, and support for judicial training. Existing passerelle to move aspects of family law to co-decision, now subject to a veto by any national parliament.”
The FCO comparative table is available at:
http://www.official-documents.gov.uk/document/cm73/7311/7311.asp
The UK House of Commons Library Research Paper 07/86 ‘The Treaty of Lisbon: amendments to the Treaty establishing the European Community (published 6 December 2007; page 37) commented upon the UK position and family law (page 38):
“The UK has the option to opt in to measures under this Article. With regard to decisions on family law, the TFEU retains the requirement to act by unanimity under the OLP, but expands on the 2004 text with a ‘red card’ mechanism by which proposals will be notified to national parliaments, which will be able to make known their opposition within six months and thereby prevent its adoption.”
The Research Paper 07/86 is available at:
http://www.parliament.uk/commons/lib/research/rp2007/rp07-086.pdf
Steve Peers has a lengthy comment on the various aspects of the Lisbon Treaty provision in Statewatch analysis ‘EU Reform Treaty: Analysis 1: Version 3 JHA provisions’ (22 October 2007) on what was to become Article 65 TFEU (ToL), Article 81 TFEU. Here, just a short quote on the possibility to move to qualified majority voting and co-decision in family law matters (page 12):
“This actually gives more power to national parliaments over this issue than they have at present.”
The JHA analysis and other Statewatch analyses are available through:
http://www.statewatch.org/euconstitution.htm
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 ‘Civil justice’ on pages 137 to 139. The conclusions of the Committee are on page 139:
“6.140. The power under the current Article 65 to adopt measures of judicial cooperation in civil matters is itself potentially broad, since the list of areas of potential action given is non-exclusive. Article 81 contains a more extensive list of areas of potential action. However, these in practice are areas in which cooperation has already been undertaken under the current Article, and the list given is exhaustive.
6.141. In lieu of the present absolute requirement that measures taken be necessary for the proper functioning of the internal market, Article 81 provides that measures may be taken “particularly when” so necessary. But, under both existing Article 65 and new Article 81, such measures are only permissible in civil measures “having crossborder implications”, itself a significant limitation. Both the existing and the new articles are capable of giving rise to differences of view regarding the scope of their application in particular situations, and we doubt whether this is much affected by the changes in Article 81. This is an area where the new powers of national parliaments to police the subsidiarity principle (see Chapter 11) may be particularly important. We consider the requirement that there should be “cross-border implications” or “a cross-border dimension” further below.”
The report is accessible at:
http://www.publications.parliament.uk/pa/ld200708/ldselect/ldeucom/62/62.pdf
Ralf Grahn
Sunday, 4 May 2008
EU TFEU: Solidarity clause: Borders, asylum and immigration
The EU Treaty of Lisbon evokes the principle of solidarity and fair sharing of responsibility with regard to the policies on border checks, asylum and immigration.
The countries managing the eastern and southern external borders of the European Union feel the pressures on a daily basis, but failures at the borders have consequences for the whole Union.
***
Article 80 of the Treaty on the Functioning of the European Union (TFEU) evokes the principle of solidarity between member states in the policies concerning border checks, asylum and immigration. The Article 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 102), with the location of the provision added from the table of equivalences (page 460 to 463):
Part Three ‘Policies and internal actions of the Union’
Title V TFEU ‘Area of freedom, security and justice’
Chapter 2 ‘Policies on border checks, asylum and immigration’
Article 80 TFEU
The policies of the Union set out in this Chapter and their implementation shall be governed by the principle of solidarity and fair sharing of responsibility, including its financial implications, between the Member States. Whenever necessary, the Union acts adopted pursuant to this Chapter shall contain appropriate measures to give effect to this principle.
***
In Article 2, point 65, of the Treaty of Lisbon (ToL) the intergovernmental conference (IGC 2007) agreed on the wording (as above) of the new Article 63b TFEU (ToL), which became Article 80 TFEU after renumbering in the consolidated version (OJ 17.12.2007 C 306/58, 61, 209).
**
According to the tables of equivalences in the Treaty of Lisbon and the Council’s consolidated version and under the Article number, there is no corresponding Article in the current Treaty establishing the European Community (TEC).
***
The European Convention proposed the following Article III-169 of the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/59):
Article III-169 Draft Constitution
The policies of the Union set out in this Section and their implementation shall be governed by the principle of solidarity and fair sharing of responsibility, including its financial implications, between the Member States. Whenever necessary, the acts of the Union adopted pursuant to this Section shall contain appropriate measures to give effect to this principle.
***
Article III-268 of the Treaty establishing a Constitution for Europe replaced ‘acts of the Union’ by ‘Union acts’, but made no other change (OJ 16.12.2004 C 310/116).
Between the Constitutional Treaty and the Treaty of Lisbon, only the general replacement of ‘Section’ by ‘Chapter’ has taken place.
In essence, the solidarity clause is the child of the European Convention, although it has been shifted between two IGC foster homes.
***
Let us check our conclusions this far against ‘A comparative table of the current EC and EU treaties as amended by the Treaty of Lisbon’ (Command Paper 7311, published 21 January 2008), by the UK Foreign and Commonwealth Office (FCO). The comparative table offers the following quick view of Article 80 TFEU, before renumbering Article 63b ToL TFEU:
“Draws on Article 63(2)(b) TEC, but extends the principles of burden sharing and solidarity between Member States to all EU measures based on Chapter 2.”
The useful FCO comparative table is available at:
http://www.official-documents.gov.uk/document/cm73/7311/7311.asp
This gives us cause to look at the current Article 63, point 2b, TEC. In the latest consolidated version of the existing treaties, we find the following words (OJ 29.12.2006 C 321 E/67):
“The Council, acting in accordance with the procedure referred to in Article 67, shall, within a period of five years after the entry into force of the Treaty of Amsterdam, adopt:
---
2. measures on refugees and displaced persons within the following areas:
---
(b) promoting a balance of effort between Member States in receiving and bearing the consequences of receiving refugees and displaced persons;”
---
Admittedly, the FCO can point to the germ of the idea of burden sharing at the treaty level, although the link is rather weak.
On the other hand, it is just as easy to understand that the drafters of the TFEU have indicated no corresponding TEC provision. In the same vein, the UK House of Commons Library Research Paper 07/86 ‘The Treaty of Lisbon: amendments to the Treaty establishing the European Community (published 6 December 2007; page 37) concluded:
“Article 63b (Constitution Article III-268) requires that the principle of solidarity and the “fair sharing of responsibility” be observed in this area. This is new and has no equivalent in Title IV TEC.”
The Research Paper 07/86 is available at:
http://www.parliament.uk/commons/lib/research/rp2007/rp07-086.pdf
Likewise, Steve Peers commented in Statewatch analysis ‘EU Reform Treaty: Analysis 1: Version 3 JHA provisions’ (22 October 2007) on what was to become Artic
The countries managing the eastern and southern external borders of the European Union feel the pressures on a daily basis, but failures at the borders have consequences for the whole Union.
***
Article 80 of the Treaty on the Functioning of the European Union (TFEU) evokes the principle of solidarity between member states in the policies concerning border checks, asylum and immigration. The Article 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 102), with the location of the provision added from the table of equivalences (page 460 to 463):
Part Three ‘Policies and internal actions of the Union’
Title V TFEU ‘Area of freedom, security and justice’
Chapter 2 ‘Policies on border checks, asylum and immigration’
Article 80 TFEU
The policies of the Union set out in this Chapter and their implementation shall be governed by the principle of solidarity and fair sharing of responsibility, including its financial implications, between the Member States. Whenever necessary, the Union acts adopted pursuant to this Chapter shall contain appropriate measures to give effect to this principle.
***
In Article 2, point 65, of the Treaty of Lisbon (ToL) the intergovernmental conference (IGC 2007) agreed on the wording (as above) of the new Article 63b TFEU (ToL), which became Article 80 TFEU after renumbering in the consolidated version (OJ 17.12.2007 C 306/58, 61, 209).
**
According to the tables of equivalences in the Treaty of Lisbon and the Council’s consolidated version and under the Article number, there is no corresponding Article in the current Treaty establishing the European Community (TEC).
***
The European Convention proposed the following Article III-169 of the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/59):
Article III-169 Draft Constitution
The policies of the Union set out in this Section and their implementation shall be governed by the principle of solidarity and fair sharing of responsibility, including its financial implications, between the Member States. Whenever necessary, the acts of the Union adopted pursuant to this Section shall contain appropriate measures to give effect to this principle.
***
Article III-268 of the Treaty establishing a Constitution for Europe replaced ‘acts of the Union’ by ‘Union acts’, but made no other change (OJ 16.12.2004 C 310/116).
Between the Constitutional Treaty and the Treaty of Lisbon, only the general replacement of ‘Section’ by ‘Chapter’ has taken place.
In essence, the solidarity clause is the child of the European Convention, although it has been shifted between two IGC foster homes.
***
Let us check our conclusions this far against ‘A comparative table of the current EC and EU treaties as amended by the Treaty of Lisbon’ (Command Paper 7311, published 21 January 2008), by the UK Foreign and Commonwealth Office (FCO). The comparative table offers the following quick view of Article 80 TFEU, before renumbering Article 63b ToL TFEU:
“Draws on Article 63(2)(b) TEC, but extends the principles of burden sharing and solidarity between Member States to all EU measures based on Chapter 2.”
The useful FCO comparative table is available at:
http://www.official-documents.gov.uk/document/cm73/7311/7311.asp
This gives us cause to look at the current Article 63, point 2b, TEC. In the latest consolidated version of the existing treaties, we find the following words (OJ 29.12.2006 C 321 E/67):
“The Council, acting in accordance with the procedure referred to in Article 67, shall, within a period of five years after the entry into force of the Treaty of Amsterdam, adopt:
---
2. measures on refugees and displaced persons within the following areas:
---
(b) promoting a balance of effort between Member States in receiving and bearing the consequences of receiving refugees and displaced persons;”
---
Admittedly, the FCO can point to the germ of the idea of burden sharing at the treaty level, although the link is rather weak.
On the other hand, it is just as easy to understand that the drafters of the TFEU have indicated no corresponding TEC provision. In the same vein, the UK House of Commons Library Research Paper 07/86 ‘The Treaty of Lisbon: amendments to the Treaty establishing the European Community (published 6 December 2007; page 37) concluded:
“Article 63b (Constitution Article III-268) requires that the principle of solidarity and the “fair sharing of responsibility” be observed in this area. This is new and has no equivalent in Title IV TEC.”
The Research Paper 07/86 is available at:
http://www.parliament.uk/commons/lib/research/rp2007/rp07-086.pdf
Likewise, Steve Peers commented in Statewatch analysis ‘EU Reform Treaty: Analysis 1: Version 3 JHA provisions’ (22 October 2007) on what was to become Artic