Wednesday, 21 January 2009

EU Law: Administrative cooperation

Exchange of information and of civil servants and supporting training schemes have their role to play for the correct implementation of European Community (European Union) law by the member states.

The Lisbon Treaty would create a legal base for administrative cooperation with the support of the European Union.



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TEC


There is no Title on administrative cooperation and no specific legal base in the current Treaty establishing the European Community (TEC). Cf. the latest consolidated version of the treaties, OJEU 29.12.2006 C 321 E.

This means that action has to be based on the unwieldy flexibility clause, Article 308 TEC. At times, failing more adequate grounds, its reference to the operation of the common market has widened beyond recognition. Still, the flexibility clause is an eye of the needle requiring unanimous decision by the Council. The European Parliament is only consulted.

When Article 3(1)(u) TEC lists ‘measures in the spheres of energy, civil protection and tourism’ among the activities of the European Community, but without a legal base, administrative cooperation is not even mentioned.



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Draft Constitution

In Article III-185 of the draft Constitution the European Convention proposed a new legal base for voluntary administrative cooperation within the European Union. No member state would have an obligation to use the opportunity, and all harmonisation of laws and regulations was excluded as in other areas of supporting competence. The provision received an EU profile when effective national implementation of Union law was made its main reason, as a matter of common interest:

SECTION 6
Administrative cooperation

Article III-185 Draft Constitution

1. Effective national implementation of Union law by the Member States, which is essential for the proper functioning of the Union, shall be regarded as a matter of common interest.

2. The Union may support the efforts of Member States to improve their administrative capacity to implement Union law. Such action may include facilitation of exchange of information and of civil servants as well as supporting training schemes. No Member State shall be obliged to avail itself of such support. European laws shall establish the necessary measures to this end, excluding any harmonisation of the laws and regulations of the Member States.

3. This Article shall be without prejudice to the obligations of the Member States to implement Union law or to the prerogatives and duties of the Commission. It shall also be without prejudice to other provisions of the Constitution providing for administrative cooperation among the Member States and between them and the Union.



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Constitutional Treaty


The IGC 2004 took over the proposal by the European Convention. Article III-285 of the Constitutional Treaty on administrative cooperation:
SECTION 7
ADMINISTRATIVE COOPERATION

Article III-285 Constitution

1. Effective implementation of Union law by the Member States, which is essential for the proper functioning of the Union, shall be regarded as a matter of common interest.

2. The Union may support the efforts of Member States to improve their administrative capacity to implement Union law. Such action may include facilitating the exchange of information and of civil servants as well as supporting training schemes. No Member State shall be obliged to avail itself of such support. European laws shall establish the necessary measures to this end, excluding any harmonisation of the laws and regulations of the Member States.

3. This Article shall be without prejudice to the obligations of the Member States to implement Union law or to the prerogatives and duties of the Commission. It shall also be without prejudice to other provisions of the Constitution providing for administrative cooperation among the Member States and between them and the Union.



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Original Lisbon Treaty (ToL)

Article 2, point 150 of the original Treaty of Lisbon (ToL) inserted a new Title XXIII Administrative cooperation and a new Article 176d (OJEU 17.12.2007 C 306/90):

ADMINISTRATIVE COOPERATION

150) The following new Title XXIII and new Article 176 D shall be inserted:

‘TITLE XXIII
ADMINISTRATIVE COOPERATION

Article 176 D

1. Effective implementation of Union law by the Member States, which is essential for the proper functioning of the Union, shall be regarded as a matter of common interest.

2. The Union may support the efforts of Member States to improve their administrative capacity to implement Union law. Such action may include facilitating the exchange of information and of civil servants as well as supporting training schemes. No Member State shall be obliged to avail itself of such support. The European Parliament and the Council, acting by means of regulations in accordance with the ordinary legislative procedure, shall establish the necessary measures to this end, excluding any harmonisation of the laws and regulations of the Member States.

3. This Article shall be without prejudice to the obligations of the Member States to implement Union law or to the prerogatives and duties of the Commission. It shall also be without prejudice to other provisions of the Treaties providing for administrative cooperation among the Member States and between them and the Union.’.


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Renumbering the Treaty of Lisbon (ToL)

The Table of equivalences of the original Treaty of Lisbon tells us that the new Title XXIII Administrative cooperation of the TFEU (ToL) was renumbered Title XXIV Administrative cooperation in the consolidated version of the Lisbon Treaty.

Article 176d TFEU (ToL) was renumbered Article 197 TFEU in the consolidated version of the Lisbon Treaty (OJEU 17.12.2007 C 306/218).


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Lisbon Treaty consolidated

Article 197 TFEU

Article 197 TFEU appears like this in the consolidated version of the Treaty of Lisbon (OJEU 9.5.2008 C 115/136):

TITLE XXIV
ADMINISTRATIVE COOPERATION

Article 197 TFEU

1. Effective implementation of Union law by the Member States, which is essential for the proper functioning of the Union, shall be regarded as a matter of common interest.

2. The Union may support the efforts of Member States to improve their administrative capacity to implement Union law. Such action may include facilitating the exchange of information and of civil servants as well as supporting training schemes. No Member State shall be obliged to avail itself of such support. The European Parliament and the Council, acting by means of regulations in accordance with the ordinary legislative procedure, shall establish the necessary measures to this end, excluding any harmonisation of the laws and regulations of the Member States.

3. This Article shall be without prejudice to the obligations of the Member States to implement Union law or to the prerogatives and duties of the Commission. It shall also be without prejudice to other provisions of the Treaties providing for administrative cooperation among the Member States and between them and the Union.


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Lisbon Treaty changes

The Lisbon Treaty would give EU administrative cooperation measures a legal base. The ordinary legislative procedure would apply, enabling a qualified Council majority to make decisions. The European Parliament would participate as an equal co-legislator.



Ralf Grahn