Both the European Community (European Union) and the individual member states are active in global development cooperation, which raises the need for concerted and coordinated action.
The current Treaty establishing the European Community takes this into account, and the Lisbon Treaty would give the relevant provision added focus.
Further reading is suggested for those who want to dig deeper.
***
Current treaty
Article 180 of the Treaty establishing the European Community (TEC) provides for coordination and consultation between the European Community (European Union) and the member states on their development aid programmes.
International organisations and conferences, such as the United Nations and its organisations, are important forums, where the EU and the member states are expected to consult and to coordinate their actions.
Here is the wording of the current Article 180 TEC, published in the latest consolidated version of the treaties, OJEU 29.12.2006 C 321 E/126:
Article 180 TEC
1. The Community and the Member States shall coordinate their policies on development cooperation and shall consult each other on their aid programmes, including in international organisations and during international conferences. They may undertake joint action. Member States shall contribute if necessary to the implementation of Community aid programmes.
2. The Commission may take any useful initiative to promote the coordination referred to in
paragraph 1.
***
Original Lisbon Treaty
The intergovernmental conference (IGC 2007) amended the TEC ‘in the usual manner’ by inserting amendments, such as in Article 2, point 163 of the original Treaty of Lisbon, OJEU 17.12.2007 C 306/94:
163) An Article 188 F shall be inserted, with the wording of Article 180; it shall be amended as follows:
At the beginning of paragraph 1, the following words shall be inserted: ‘In order to promote the complementarity and efficiency of their action,’.
***
Consolidated Lisbon Treaty
The consolidated Lisbon Treaty made Article 188f TFEU (ToL) readable once more. Renumbered Article 210 of the Treaty on the Functioning of the European Union (TFEU), it looks like this (OJEU 9.5.2008 C 115/142):
Article 210 TFEU
(ex Article 180 TEC)
1. In order to promote the complementarity and efficiency of their action, the Union and the Member States shall coordinate their policies on development cooperation and shall consult each other on their aid programmes, including in international organisations and during international conferences. They may undertake joint action. Member States shall contribute if necessary to the implementation of Union aid programmes.
2. The Commission may take any useful initiative to promote the coordination referred to in paragraph 1.
***
Lisbon Treaty changes
By the addition of the promotion of the complementarity and efficiency of action, the IGC 2007 gives the coordination and consultation more focus. Hardly a bad idea, given that the EU plus 27 potentially divergent member states are a lot to host for a single developing nation with scarce resources. On international forums, only a united European Union can hope to create effective development strategies with global reach.
Since the powers in development cooperation remain shared in a specific manner between the member states and the EU, according to Article 4(4) TFEU, the Commission is still invited to take any useful initiatives to promote coordination.
The end result is that Article 210 TFEU is the same as Article III-318(1) and (2) of the Constitutional Treaty.
***
EuropeAid Annual Report for 2007
EuropeAid (under Commissioner Benita Ferrero-Waldner) manages the Commission’s external aid programmes, and its Annual Report 2008 on the European Community’s development and external assistance policies and their implementation in 2007 (176 pages) was published in the autumn:
http://ec.europa.eu/europeaid/multimedia/publications/documents/annual-reports/europeaid_annual_report_2008_en.pdf
Ralf Grahn
Saturday, 31 January 2009
EU development cooperation legislation
The general objectives of European Community (European Union) external action are beautiful, but they need to be put into practice.
In the area of development cooperation the Treaty establishing the European Community spells out how the legislative measures are taken.
The EU Treaty of Lisbon modifies and modernises the current treaty level provisions.
In addition, we present some of the existing secondary legislation for readers interested in EU development cooperation law and policies.
***
Current treaty
Article 179 of the Treaty establishing the European Community (TEC) deals with how the development cooperation objectives are put into practice.
These measures include, but are not restricted to, multiannual programmes. The co-decision procedure applies, so the European Parliament participates on an equal basis as co-legislator.
The European Investment Bank (EIB) contributes to implementation by making funds available.
The special role of cooperation with the African, Caribbean and Pacific countries ACPs) within the framework of the ACP-EC Convention is emphasised treating it separately.
The current Article 179 TEC, as published in the latest consolidated version of the treaties, OJEU 29.12.2006 C 321 E/126:
Article 179 TEC
1. Without prejudice to the other provisions of this Treaty, the Council, acting in accordance with the procedure referred to in Article 251, shall adopt the measures necessary to further the objectives referred to in Article 177. Such measures may take the form of multiannual programmes.
2. The European Investment Bank shall contribute, under the terms laid down in its Statute, to the implementation of the measures referred to in paragraph 1.
3. The provisions of this Article shall not affect cooperation with the African, Caribbean and Pacific countries in the framework of the ACP-EC Convention.
***
Original Lisbon Treaty
Article 2, point 162 of the original Treaty of Lisbon (ToL) amended Article 179 and made it into Article 188e (OJEU 17.12.2007 C 306/94):
162) An Article 188 E shall be inserted, with the wording of Article 179; it shall be amended as follows:
(a) paragraph 1 shall be replaced by the following:
‘1. The European Parliament and the Council, acting in accordance with the ordinary legislative procedure, shall adopt the measures necessary for the implementation of development cooperation policy, which may relate to multiannual cooperation programmes with developing countries or programmes with a thematic approach.’;
(b) the following new paragraph 2 shall be inserted:
‘2. The Union may conclude with third countries and competent international organisations any agreement helping to achieve the objectives referred to in Article 10 A of the Treaty on European Union and in Article 188 D of this Treaty.
The first subparagraph shall be without prejudice to Member States' competence to negotiate in international bodies and to conclude agreements.’;
(c) the current paragraph 2 shall be renumbered ‘3’ and the current paragraph 3 shall be deleted.
***
Consolidated Lisbon Treaty
A few months after the signing ceremony the age of private, semi-private, semi-governmental, governmental and parliamentary consolidations came to an end. The Council had picked up the necessary courage to publish the treaties in a readable form, as amended by the Treaty of Lisbon, and on Europe Day 9 May 2008 the consolidated version was even published in the Official Journal of the European Union.
Had the Council’s initial refusal to publish a consolidation before the new treaty was in force prevailed, we would still be waiting for an ‘official’ consolidation in all official EU languages and a common reference for all EU citizens until the beginning of 2010 at the earliest and possibly eternally.
With joy and gratitude we present Article 188e of the Treaty on the Functioning of the European Union (TFEU ToL), renumbered and reassembled in the consolidated version as Article 209 TFEU, OJEU 9.5.2008 C 115/141:
Article 209 TFEU
(ex Article 179 TEC)
1. The European Parliament and the Council, acting in accordance with the ordinary legislative procedure, shall adopt the measures necessary for the implementation of development cooperation policy, which may relate to multiannual cooperation programmes with developing countries or programmes with a thematic approach.
2. The Union may conclude with third countries and competent international organisations any agreement helping to achieve the objectives referred to in Article 21 of the Treaty on European Union and in Article 208 of this Treaty.
The first subparagraph shall be without prejudice to Member States' competence to negotiate in international bodies and to conclude agreements.
3. The European Investment Bank shall contribute, under the terms laid down in its Statute, to the implementation of the measures referred to in paragraph 1.
***
Lisbon Treaty changes
Here as elsewhere in the Lisbon Treaty the terminology would be improved. The ordinary legislative procedure would take over from the unnamed procedure referred to in Article 251 (generally called co-decision). The formal abolishment of the pillar structure would leave us with just the European Union, instead of the distinction between the EU and the European Community (EC) hardly anyone makes nowadays. These horizontal amendments apply to Article 209 TFEU as well.
The terminology of the Constitutional Treaty would have been even better (‘European laws or framework laws’), but only the citizens of Spain and Luxembourg approved in referenda, whereas the French and the Dutch voters preferred the contents and wording of the Treaty of Nice in 2005.
In substance Article 209 TFEU is the same as Article III-317 of the Constitutional Treaty, although the Lisbon Treaty achieves this in a convoluted way by amending Article 179 TEC.
The first paragraph adds the important category of thematic programmes.
Deleting the third paragraph exception concerning African, Caribbean and Pacific (ACP) countries in the framework of the ACP-EC Convention may contribute to a more global view of development cooperation if the European Development Fund (EDF) is finally integrated into the general budget of the European Union.
***
ACP-EC Partnership Agreement: Cotonou Agreement
The ACP-EC Partnership Agreement was signed in 2000 in Cotonou and it entered into force in 2003. In 2005 the Cotonou Agreement was revised and the revision entered into force on 1 July 2008.
The text of the revised Cotonou Agreement is available here:
http://ec.europa.eu/development/icenter/repository/Cotonou_EN_2006_en.pdf
The Cotonou Agreement is not a development aid programme in a narrow sense, but based on three pillars:
· Development cooperation
· Economic and trade cooperation
· Political cooperation
***
10th European Development Fund (EDF)
The Tenth European Development Fund (EDF) is the main instrument for development cooperation with the ACP countries (as well as the associated overseas countries and territories, OCTs).
The EDF is based on an intergovernmental agreement between the EU member states and it still remains outside the general budget of the European Union.
A presentation of the 10th EDF, allocated 22.7 billion euros for the period 2008 to 2013, is available here:
http://ec.europa.eu/development/how/source-funding/10edf_en.cfm
The Tenth EDF is based on the revised Cotonou Agreement and the Internal Agreement between the Representatives of the Governments of the Member States, meeting within the Council, on the financing of Community aid under the multiannual financial framework for the period 2008 to 2013 in accordance with the ACP-EC Partnership Agreement and on the allocation of financial assistance for the Overseas Countries and Territories to which Part Four of the EC Treaty.
The Council has issued an implementing Regulation, officially Council Regulation (EC) No 617/2007 of 14 May 2007 on the implementation of the 10th European Development Fund under the ACP-EC Partnership Agreement, published OJEU 13.6.2007 L 152/1, available here:
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2007:152:0001:0013:EN:PDF
***
European Investment Bank (EIB)
The current treaty and the Lisbon Treaty refer to the contribution of the European Investment Bank (EIB) to the implementation of development cooperation programmes.
From the home page of the EIB you can access information about the bank’s activities and publications:
http://www.eib.org/
The Statute of the European Investment Bank is annexed as a Protocol to the current TEC as No 11. Although the Lisbon Treaty is not in force, the latest version (and consistent with the Lisbon Treaty numbering of provisions) is Protocol (No 5) on the Statute of the European Investment Bank, OJEU 9.5.2008 C 115/251.
The general treaty level provisions on the EIB are Articles 308 and 309 TFEU.
Ralf Grahn
In the area of development cooperation the Treaty establishing the European Community spells out how the legislative measures are taken.
The EU Treaty of Lisbon modifies and modernises the current treaty level provisions.
In addition, we present some of the existing secondary legislation for readers interested in EU development cooperation law and policies.
***
Current treaty
Article 179 of the Treaty establishing the European Community (TEC) deals with how the development cooperation objectives are put into practice.
These measures include, but are not restricted to, multiannual programmes. The co-decision procedure applies, so the European Parliament participates on an equal basis as co-legislator.
The European Investment Bank (EIB) contributes to implementation by making funds available.
The special role of cooperation with the African, Caribbean and Pacific countries ACPs) within the framework of the ACP-EC Convention is emphasised treating it separately.
The current Article 179 TEC, as published in the latest consolidated version of the treaties, OJEU 29.12.2006 C 321 E/126:
Article 179 TEC
1. Without prejudice to the other provisions of this Treaty, the Council, acting in accordance with the procedure referred to in Article 251, shall adopt the measures necessary to further the objectives referred to in Article 177. Such measures may take the form of multiannual programmes.
2. The European Investment Bank shall contribute, under the terms laid down in its Statute, to the implementation of the measures referred to in paragraph 1.
3. The provisions of this Article shall not affect cooperation with the African, Caribbean and Pacific countries in the framework of the ACP-EC Convention.
***
Original Lisbon Treaty
Article 2, point 162 of the original Treaty of Lisbon (ToL) amended Article 179 and made it into Article 188e (OJEU 17.12.2007 C 306/94):
162) An Article 188 E shall be inserted, with the wording of Article 179; it shall be amended as follows:
(a) paragraph 1 shall be replaced by the following:
‘1. The European Parliament and the Council, acting in accordance with the ordinary legislative procedure, shall adopt the measures necessary for the implementation of development cooperation policy, which may relate to multiannual cooperation programmes with developing countries or programmes with a thematic approach.’;
(b) the following new paragraph 2 shall be inserted:
‘2. The Union may conclude with third countries and competent international organisations any agreement helping to achieve the objectives referred to in Article 10 A of the Treaty on European Union and in Article 188 D of this Treaty.
The first subparagraph shall be without prejudice to Member States' competence to negotiate in international bodies and to conclude agreements.’;
(c) the current paragraph 2 shall be renumbered ‘3’ and the current paragraph 3 shall be deleted.
***
Consolidated Lisbon Treaty
A few months after the signing ceremony the age of private, semi-private, semi-governmental, governmental and parliamentary consolidations came to an end. The Council had picked up the necessary courage to publish the treaties in a readable form, as amended by the Treaty of Lisbon, and on Europe Day 9 May 2008 the consolidated version was even published in the Official Journal of the European Union.
Had the Council’s initial refusal to publish a consolidation before the new treaty was in force prevailed, we would still be waiting for an ‘official’ consolidation in all official EU languages and a common reference for all EU citizens until the beginning of 2010 at the earliest and possibly eternally.
With joy and gratitude we present Article 188e of the Treaty on the Functioning of the European Union (TFEU ToL), renumbered and reassembled in the consolidated version as Article 209 TFEU, OJEU 9.5.2008 C 115/141:
Article 209 TFEU
(ex Article 179 TEC)
1. The European Parliament and the Council, acting in accordance with the ordinary legislative procedure, shall adopt the measures necessary for the implementation of development cooperation policy, which may relate to multiannual cooperation programmes with developing countries or programmes with a thematic approach.
2. The Union may conclude with third countries and competent international organisations any agreement helping to achieve the objectives referred to in Article 21 of the Treaty on European Union and in Article 208 of this Treaty.
The first subparagraph shall be without prejudice to Member States' competence to negotiate in international bodies and to conclude agreements.
3. The European Investment Bank shall contribute, under the terms laid down in its Statute, to the implementation of the measures referred to in paragraph 1.
***
Lisbon Treaty changes
Here as elsewhere in the Lisbon Treaty the terminology would be improved. The ordinary legislative procedure would take over from the unnamed procedure referred to in Article 251 (generally called co-decision). The formal abolishment of the pillar structure would leave us with just the European Union, instead of the distinction between the EU and the European Community (EC) hardly anyone makes nowadays. These horizontal amendments apply to Article 209 TFEU as well.
The terminology of the Constitutional Treaty would have been even better (‘European laws or framework laws’), but only the citizens of Spain and Luxembourg approved in referenda, whereas the French and the Dutch voters preferred the contents and wording of the Treaty of Nice in 2005.
In substance Article 209 TFEU is the same as Article III-317 of the Constitutional Treaty, although the Lisbon Treaty achieves this in a convoluted way by amending Article 179 TEC.
The first paragraph adds the important category of thematic programmes.
Deleting the third paragraph exception concerning African, Caribbean and Pacific (ACP) countries in the framework of the ACP-EC Convention may contribute to a more global view of development cooperation if the European Development Fund (EDF) is finally integrated into the general budget of the European Union.
***
ACP-EC Partnership Agreement: Cotonou Agreement
The ACP-EC Partnership Agreement was signed in 2000 in Cotonou and it entered into force in 2003. In 2005 the Cotonou Agreement was revised and the revision entered into force on 1 July 2008.
The text of the revised Cotonou Agreement is available here:
http://ec.europa.eu/development/icenter/repository/Cotonou_EN_2006_en.pdf
The Cotonou Agreement is not a development aid programme in a narrow sense, but based on three pillars:
· Development cooperation
· Economic and trade cooperation
· Political cooperation
***
10th European Development Fund (EDF)
The Tenth European Development Fund (EDF) is the main instrument for development cooperation with the ACP countries (as well as the associated overseas countries and territories, OCTs).
The EDF is based on an intergovernmental agreement between the EU member states and it still remains outside the general budget of the European Union.
A presentation of the 10th EDF, allocated 22.7 billion euros for the period 2008 to 2013, is available here:
http://ec.europa.eu/development/how/source-funding/10edf_en.cfm
The Tenth EDF is based on the revised Cotonou Agreement and the Internal Agreement between the Representatives of the Governments of the Member States, meeting within the Council, on the financing of Community aid under the multiannual financial framework for the period 2008 to 2013 in accordance with the ACP-EC Partnership Agreement and on the allocation of financial assistance for the Overseas Countries and Territories to which Part Four of the EC Treaty.
The Council has issued an implementing Regulation, officially Council Regulation (EC) No 617/2007 of 14 May 2007 on the implementation of the 10th European Development Fund under the ACP-EC Partnership Agreement, published OJEU 13.6.2007 L 152/1, available here:
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2007:152:0001:0013:EN:PDF
***
European Investment Bank (EIB)
The current treaty and the Lisbon Treaty refer to the contribution of the European Investment Bank (EIB) to the implementation of development cooperation programmes.
From the home page of the EIB you can access information about the bank’s activities and publications:
http://www.eib.org/
The Statute of the European Investment Bank is annexed as a Protocol to the current TEC as No 11. Although the Lisbon Treaty is not in force, the latest version (and consistent with the Lisbon Treaty numbering of provisions) is Protocol (No 5) on the Statute of the European Investment Bank, OJEU 9.5.2008 C 115/251.
The general treaty level provisions on the EIB are Articles 308 and 309 TFEU.
Ralf Grahn
Friday, 30 January 2009
EU Law: Development cooperation
Trade and aid are two pillars of the rich world’s actions to improve the lot of people living in the developing countries.
The European Union and its member state contribute almost half of annual development aid internationally.
We look at the current treaty and the Treaty of Lisbon to see what EU development cooperation is based on.
***
Current treaty
Article 177 of the Treaty establishing the European Community (TEC) heads Title XX Development cooperation.
European Community policy is categorised as complementary to the development cooperation policies of the member states.
The principal aims with regard to developing countries are:
· Sustainable economic an social development
· Integration into the world economy
· Campaigning against poverty
The Community policies aim to promote:
· Democracy
· The rule of law
· Human rights and fundamental freedoms
Commitments and objectives approved by the European Community (European Union) and the member states within the United Nations and other international organisations are given emphasis in the third paragraph.
Here is the text of Article 177 TEC currently in force, as reproduced in the latest consolidated version of the treaties, OJEU 29.12.2006 C 321 E/125–126:
TITLE XX
DEVELOPMENT COOPERATION
Article 177 TEC
1. Community policy in the sphere of development cooperation, which shall be complementary to the policies pursued by the Member States, shall foster:
— the sustainable economic and social development of the developing countries, and more particularly the most disadvantaged among them,
— the smooth and gradual integration of the developing countries into the world economy,
— the campaign against poverty in the developing countries.
2. Community policy in this area shall contribute to the general objective of developing and consolidating democracy and the rule of law, and to that of respecting human rights and fundamental freedoms.
3. The Community and the Member States shall comply with the commitments and take account of the objectives they have approved in the context of the United Nations and other competent international organisations.
***
Original Lisbon Treaty
The original Treaty of Lisbon (ToL) reorganised the provisions on external action (OJEU 17.12.2007 C 306). The new Part Five and the Titles and Chapters were structured in the following way in Article 2, point 154 (page 91):
EXTERNAL ACTION BY THE UNION
154) A new Part Five shall be inserted. Its heading shall be ‘EXTERNAL ACTION BY THE UNION’ and it shall contain the following Titles and Chapters:
Title I: General provisions on the Union's external action
Title II: Common commercial policy
Title III: Cooperation with third countries and humanitarian aid
Chapter 1: Development cooperation
Chapter 2: Economic, financial and technical cooperation with third countries
Chapter 3: Humanitarian aid
Title IV: Restrictive measures
Title V: International agreements
Title VI: The Union's relations with international organisations and third countries and Union delegations
Title VII: Solidarity clause.
**
Article 2, point 159 and 160 ToL inserted the new Title III, Chapter 1 on development cooperation and the new Article 188d amending Article 177 TEC (page 93):
159) A Title III ‘COOPERATION WITH THIRD COUNTRIES AND HUMANITARIAN AID’ shall be inserted.
160) A Chapter 1 ‘DEVELOPMENT COOPERATION’ shall be inserted, taking over the heading of Title XX of Part 3.
161) An Article 188 D shall be inserted, with the wording of Article 177; it shall be amended as follows:
(a) paragraphs 1 and 2 shall be replaced by the following:
‘1. Union policy in the field of development cooperation shall be conducted within the framework of the principles and objectives of the Union's external action. The Union's development cooperation policy and that of the Member States complement and reinforce each other.
Union development cooperation policy shall have as its primary objective the reduction and, in the long term, the eradication of poverty. The Union shall take account of the objectives of development cooperation in the policies that it implements which are likely to affect developing countries.’;
(b) paragraph 3 shall be renumbered ‘2’.
***
Consolidated Lisbon Treaty
The end result is presented in a more readable form in the consolidated version of the Lisbon Treaty, where Article 188d ToL has become Article 208 of the Treaty on the Functioning of the European Union (TFEU), as published OJEU 9.5.2008 C 115/141:
TITLE III
COOPERATION WITH THIRD COUNTRIES AND HUMANITARIAN AID
CHAPTER 1
DEVELOPMENT COOPERATION
Article 208 TFEU
(ex Article 177 TEC)
1. Union policy in the field of development cooperation shall be conducted within the framework of the principles and objectives of the Union's external action. The Union's development cooperation policy and that of the Member States complement and reinforce each other.
Union development cooperation policy shall have as its primary objective the reduction and, in the long term, the eradication of poverty. The Union shall take account of the objectives of development cooperation in the policies that it implements which are likely to affect developing countries.
2. The Union and the Member States shall comply with the commitments and take account of the objectives they have approved in the context of the United Nations and other competent international organisations.
***
Lisbon Treaty changes
There is a slight strengthening of the European Union’s development cooperation policy, in that it is not only complementary to the member states’ action. They are now meant to complement and reinforce each other, which speaks for improved internal coordination.
The EU policies are to be conducted according to the principles and objectives of the European Union’s external action. Even if the repetition is needless, it refers to Articles 21 and 22 of the amended Treaty on European Union (Title V, Chapter 1). The guiding principles of democracy, the rule of law as well as human rights and fundamental freedoms are all there, and more.
The specific objectives of development cooperation have been concentrated in line with the UN’s Millenium Development Goals (MDGs) to underline the reduction and long term eradication of poverty.
But especially Article 22 TEU retains and embellishes upon the other goals mentioned in the current Article 177 TEC, so none have gone missing.
In addition, the second subparagraph of paragraph 1 now contains a horizontal clause, which obliges the European Union to take account of its objectives of development cooperation in all policies likely to affect developing countries.
(Surely, this includes the common agricultural and fisheries policies?)
The first paragraph of Article 208 TFEU is the same as Article III-316(1) of the Constitutional Treaty. There is no substantial difference between Article 177(3), Article III-316(2) Constitution and Article 208(2) TFEU.
***
EU competence
Article 4(4) TFEU subjects development cooperation to a special kind of shared competence, dependent on good will between the European Union. This shared competence ‘light’ is described like this:
4. In the areas of development cooperation and humanitarian aid, the Union shall have competence to carry out activities and conduct a common policy; however, the exercise of that competence shall not result in Member States being prevented from exercising theirs.
***
Summary of legislation
The European Union together with the member states is the world’s largest donor of development aid, so the policy area is important both internally and for the needy of this world.
The Commission’s Scadplus web page Development is the portal to summaries on Community legislation concerning development cooperation:
http://europa.eu/scadplus/leg/en/s05030.htm
There are links to the General development framework, Sectoral development policies, African, Caribbean and Pacific states (ACPs), South(ern) Africa, Overseas countries and territories (OCTs) and the Least developed countries (LDCs).
***
Commission activities
The index page of the Commission’s Directorate-General Development is significantly titled Development and relations with African, Caribbean and Pacific States, bringing the special relations with the ACPs to the fore:
http://ec.europa.eu/development/index_en.cfm
The Commissioner in charge is Louis Michel.
The pages offer links to news, events, policies and documents on the European Union’s wide-ranging development cooperation activities.
***
European Development Fund (EDF)
Because of the close links with the ACP countries and the associated OCTs, there is cause to point out the European Development Fund (EDF), the main instrument for these policies:
http://europa.eu/scadplus/leg/en/lvb/r12102.htm
Ralf Grahn
The European Union and its member state contribute almost half of annual development aid internationally.
We look at the current treaty and the Treaty of Lisbon to see what EU development cooperation is based on.
***
Current treaty
Article 177 of the Treaty establishing the European Community (TEC) heads Title XX Development cooperation.
European Community policy is categorised as complementary to the development cooperation policies of the member states.
The principal aims with regard to developing countries are:
· Sustainable economic an social development
· Integration into the world economy
· Campaigning against poverty
The Community policies aim to promote:
· Democracy
· The rule of law
· Human rights and fundamental freedoms
Commitments and objectives approved by the European Community (European Union) and the member states within the United Nations and other international organisations are given emphasis in the third paragraph.
Here is the text of Article 177 TEC currently in force, as reproduced in the latest consolidated version of the treaties, OJEU 29.12.2006 C 321 E/125–126:
TITLE XX
DEVELOPMENT COOPERATION
Article 177 TEC
1. Community policy in the sphere of development cooperation, which shall be complementary to the policies pursued by the Member States, shall foster:
— the sustainable economic and social development of the developing countries, and more particularly the most disadvantaged among them,
— the smooth and gradual integration of the developing countries into the world economy,
— the campaign against poverty in the developing countries.
2. Community policy in this area shall contribute to the general objective of developing and consolidating democracy and the rule of law, and to that of respecting human rights and fundamental freedoms.
3. The Community and the Member States shall comply with the commitments and take account of the objectives they have approved in the context of the United Nations and other competent international organisations.
***
Original Lisbon Treaty
The original Treaty of Lisbon (ToL) reorganised the provisions on external action (OJEU 17.12.2007 C 306). The new Part Five and the Titles and Chapters were structured in the following way in Article 2, point 154 (page 91):
EXTERNAL ACTION BY THE UNION
154) A new Part Five shall be inserted. Its heading shall be ‘EXTERNAL ACTION BY THE UNION’ and it shall contain the following Titles and Chapters:
Title I: General provisions on the Union's external action
Title II: Common commercial policy
Title III: Cooperation with third countries and humanitarian aid
Chapter 1: Development cooperation
Chapter 2: Economic, financial and technical cooperation with third countries
Chapter 3: Humanitarian aid
Title IV: Restrictive measures
Title V: International agreements
Title VI: The Union's relations with international organisations and third countries and Union delegations
Title VII: Solidarity clause.
**
Article 2, point 159 and 160 ToL inserted the new Title III, Chapter 1 on development cooperation and the new Article 188d amending Article 177 TEC (page 93):
159) A Title III ‘COOPERATION WITH THIRD COUNTRIES AND HUMANITARIAN AID’ shall be inserted.
160) A Chapter 1 ‘DEVELOPMENT COOPERATION’ shall be inserted, taking over the heading of Title XX of Part 3.
161) An Article 188 D shall be inserted, with the wording of Article 177; it shall be amended as follows:
(a) paragraphs 1 and 2 shall be replaced by the following:
‘1. Union policy in the field of development cooperation shall be conducted within the framework of the principles and objectives of the Union's external action. The Union's development cooperation policy and that of the Member States complement and reinforce each other.
Union development cooperation policy shall have as its primary objective the reduction and, in the long term, the eradication of poverty. The Union shall take account of the objectives of development cooperation in the policies that it implements which are likely to affect developing countries.’;
(b) paragraph 3 shall be renumbered ‘2’.
***
Consolidated Lisbon Treaty
The end result is presented in a more readable form in the consolidated version of the Lisbon Treaty, where Article 188d ToL has become Article 208 of the Treaty on the Functioning of the European Union (TFEU), as published OJEU 9.5.2008 C 115/141:
TITLE III
COOPERATION WITH THIRD COUNTRIES AND HUMANITARIAN AID
CHAPTER 1
DEVELOPMENT COOPERATION
Article 208 TFEU
(ex Article 177 TEC)
1. Union policy in the field of development cooperation shall be conducted within the framework of the principles and objectives of the Union's external action. The Union's development cooperation policy and that of the Member States complement and reinforce each other.
Union development cooperation policy shall have as its primary objective the reduction and, in the long term, the eradication of poverty. The Union shall take account of the objectives of development cooperation in the policies that it implements which are likely to affect developing countries.
2. The Union and the Member States shall comply with the commitments and take account of the objectives they have approved in the context of the United Nations and other competent international organisations.
***
Lisbon Treaty changes
There is a slight strengthening of the European Union’s development cooperation policy, in that it is not only complementary to the member states’ action. They are now meant to complement and reinforce each other, which speaks for improved internal coordination.
The EU policies are to be conducted according to the principles and objectives of the European Union’s external action. Even if the repetition is needless, it refers to Articles 21 and 22 of the amended Treaty on European Union (Title V, Chapter 1). The guiding principles of democracy, the rule of law as well as human rights and fundamental freedoms are all there, and more.
The specific objectives of development cooperation have been concentrated in line with the UN’s Millenium Development Goals (MDGs) to underline the reduction and long term eradication of poverty.
But especially Article 22 TEU retains and embellishes upon the other goals mentioned in the current Article 177 TEC, so none have gone missing.
In addition, the second subparagraph of paragraph 1 now contains a horizontal clause, which obliges the European Union to take account of its objectives of development cooperation in all policies likely to affect developing countries.
(Surely, this includes the common agricultural and fisheries policies?)
The first paragraph of Article 208 TFEU is the same as Article III-316(1) of the Constitutional Treaty. There is no substantial difference between Article 177(3), Article III-316(2) Constitution and Article 208(2) TFEU.
***
EU competence
Article 4(4) TFEU subjects development cooperation to a special kind of shared competence, dependent on good will between the European Union. This shared competence ‘light’ is described like this:
4. In the areas of development cooperation and humanitarian aid, the Union shall have competence to carry out activities and conduct a common policy; however, the exercise of that competence shall not result in Member States being prevented from exercising theirs.
***
Summary of legislation
The European Union together with the member states is the world’s largest donor of development aid, so the policy area is important both internally and for the needy of this world.
The Commission’s Scadplus web page Development is the portal to summaries on Community legislation concerning development cooperation:
http://europa.eu/scadplus/leg/en/s05030.htm
There are links to the General development framework, Sectoral development policies, African, Caribbean and Pacific states (ACPs), South(ern) Africa, Overseas countries and territories (OCTs) and the Least developed countries (LDCs).
***
Commission activities
The index page of the Commission’s Directorate-General Development is significantly titled Development and relations with African, Caribbean and Pacific States, bringing the special relations with the ACPs to the fore:
http://ec.europa.eu/development/index_en.cfm
The Commissioner in charge is Louis Michel.
The pages offer links to news, events, policies and documents on the European Union’s wide-ranging development cooperation activities.
***
European Development Fund (EDF)
Because of the close links with the ACP countries and the associated OCTs, there is cause to point out the European Development Fund (EDF), the main instrument for these policies:
http://europa.eu/scadplus/leg/en/lvb/r12102.htm
Ralf Grahn
Thursday, 29 January 2009
Finland: Competition proposal published
A working group has prepared a reformed Act on Competition Restrictions for the Ministry of Employment and the Economy of Finland. The report is in Finnish, but there is a press release and abstract in Swedish and an abstract in English. Here is the available English text:
On 13 June 2007, the Ministry of Trade and Industry appointed a working group to identify the need to reform the Act on Competition Restrictions and to prepare proposals for the required amendments.
The Government Programme of Prime Minister Matti Vanhanen’s second Cabinet states that the Government will assess the need to amend the Act on Competition Restrictions and implement the necessary changes. According to the appointment letter of the working group, an effective competition policy requires the availability of functioning and up-to-date tools for addressing harmful restraints on competition.
The current Act on Competition Restrictions (480/1992) entered into force on 1 September 1992 and has, subsequently, seen many amendments. In the main, the regulations in force can be considered functional, but the high number of amendments has weakened the systematic structure of the Act. Reform needs also pertain to the content-related regulations, resulting from experiences gained from applying the Act, the development of Community legislation, and changes in the competitive operating environment.
The aim of the Competition Act is to ensure healthy and well-functioning competition, the key goal being to secure a well-functioning competition mechanism. Such an operating environment would serve companies and benefit customers and consumers alike. As concerns the objectives of the Act, it is essential that the Finnish Competition Authority is able to handle matters with sufficient speed and efficiency.
The working group has examined the needs related to developing regulations pertaining to the procedure followed in competition restriction issues. In this respect, the goal is to achieve a balance between efficiency and the legal protection of enterprises. More rapid processing, regulation of the publicising of documents, and development of the Competition Authority’s powers of investigation have emerged as key development targets.
Separate regulations concerning enterprises’ rights to defend themselves would also be introduced into the Act. Moreover, it is proposed that the so called leniency system concerning discharge from fines from infringements, and the mitigation of the fine, should be made more predictable than at present.
The competition infringement sanction system has been assessed from the viewpoints of an administrative infringement fine, the penal system and the application of a business prohibition. In the working group’s opinion, the competition infringement sanction system should continue to be based on an administrative infringement fine.
However, it is proposed that the regulations pertaining to the infringement fine be developed so that the pre-emptive nature and foreseeability of sanctions be implemented more effectively than at present. The working group does not propose the criminalisation of activities contrary to the Act on Competition Restrictions nor the establishment of a separate business prohibition system for matters related to competition restriction.
The regulations in force concerning merger control have proven to be well-functioning in the main. Correspondingly, a significant proportion of the working group’s proposals clarify and update the current regulations. However, the working group also proposes certain reforms of the Act, such as modifying the test used in the assessment of mergers and acquisitions, the elimination of the deadline set for compulsory notification, and the possibility to extend processing time limits.
The regulations in the Competition Act concerning the claiming of damages would remain based on the principles of the Act in force. Here, the aim is to eliminate defects related to the current provisions, clarify the regulations concerning compensation for damage, and enhance legal certainty.
Source: Ministry of Employment and the Economy Julkaisut: Kilpailulaki 2010 (29 January 2009)
http://www.tem.fi/?s=2086
***
When Minister Tarja Cronberg received the report, she emphasised the need for competition policy in the present economic situation. Cronberg welcomed the working group’s clear line against the profitability of cartels.
Source: Ministry of Employment and the Economy press release: Työryhmä esittää: Uusi laki tehostamaan kilpailuvalvontaa (29 January 2009)
http://www.valtioneuvosto.fi/ajankohtaista/tiedotteet/tiedote/fi.jsp?oid=252206
The press release in Swedish: Arbetsgruppens förslag: Effektivisering av konkurrensövervakningen genom en ny lag
http://www.valtioneuvosto.fi/ajankohtaista/tiedotteet/tiedote/fi.jsp?oid=252208
Ralf Grahn
On 13 June 2007, the Ministry of Trade and Industry appointed a working group to identify the need to reform the Act on Competition Restrictions and to prepare proposals for the required amendments.
The Government Programme of Prime Minister Matti Vanhanen’s second Cabinet states that the Government will assess the need to amend the Act on Competition Restrictions and implement the necessary changes. According to the appointment letter of the working group, an effective competition policy requires the availability of functioning and up-to-date tools for addressing harmful restraints on competition.
The current Act on Competition Restrictions (480/1992) entered into force on 1 September 1992 and has, subsequently, seen many amendments. In the main, the regulations in force can be considered functional, but the high number of amendments has weakened the systematic structure of the Act. Reform needs also pertain to the content-related regulations, resulting from experiences gained from applying the Act, the development of Community legislation, and changes in the competitive operating environment.
The aim of the Competition Act is to ensure healthy and well-functioning competition, the key goal being to secure a well-functioning competition mechanism. Such an operating environment would serve companies and benefit customers and consumers alike. As concerns the objectives of the Act, it is essential that the Finnish Competition Authority is able to handle matters with sufficient speed and efficiency.
The working group has examined the needs related to developing regulations pertaining to the procedure followed in competition restriction issues. In this respect, the goal is to achieve a balance between efficiency and the legal protection of enterprises. More rapid processing, regulation of the publicising of documents, and development of the Competition Authority’s powers of investigation have emerged as key development targets.
Separate regulations concerning enterprises’ rights to defend themselves would also be introduced into the Act. Moreover, it is proposed that the so called leniency system concerning discharge from fines from infringements, and the mitigation of the fine, should be made more predictable than at present.
The competition infringement sanction system has been assessed from the viewpoints of an administrative infringement fine, the penal system and the application of a business prohibition. In the working group’s opinion, the competition infringement sanction system should continue to be based on an administrative infringement fine.
However, it is proposed that the regulations pertaining to the infringement fine be developed so that the pre-emptive nature and foreseeability of sanctions be implemented more effectively than at present. The working group does not propose the criminalisation of activities contrary to the Act on Competition Restrictions nor the establishment of a separate business prohibition system for matters related to competition restriction.
The regulations in force concerning merger control have proven to be well-functioning in the main. Correspondingly, a significant proportion of the working group’s proposals clarify and update the current regulations. However, the working group also proposes certain reforms of the Act, such as modifying the test used in the assessment of mergers and acquisitions, the elimination of the deadline set for compulsory notification, and the possibility to extend processing time limits.
The regulations in the Competition Act concerning the claiming of damages would remain based on the principles of the Act in force. Here, the aim is to eliminate defects related to the current provisions, clarify the regulations concerning compensation for damage, and enhance legal certainty.
Source: Ministry of Employment and the Economy Julkaisut: Kilpailulaki 2010 (29 January 2009)
http://www.tem.fi/?s=2086
***
When Minister Tarja Cronberg received the report, she emphasised the need for competition policy in the present economic situation. Cronberg welcomed the working group’s clear line against the profitability of cartels.
Source: Ministry of Employment and the Economy press release: Työryhmä esittää: Uusi laki tehostamaan kilpailuvalvontaa (29 January 2009)
http://www.valtioneuvosto.fi/ajankohtaista/tiedotteet/tiedote/fi.jsp?oid=252206
The press release in Swedish: Arbetsgruppens förslag: Effektivisering av konkurrensövervakningen genom en ny lag
http://www.valtioneuvosto.fi/ajankohtaista/tiedotteet/tiedote/fi.jsp?oid=252208
Ralf Grahn
EU Law: Trade policy
A military worm, a diplomatic midget, but a trade giant. A ‘Global Europe’ of shopkeepers offers some consolation for the European Union in a hard world.
The customs union and the common commercial policy are among the most uniform policy areas of the European Union, and the Lisbon Treaty would modernise the scope of trade, at least formally.
Member states’ protective interests and the unanimity rule make the Lisbon Treaty a more qualified success than would appear at a first glance.
***
Current treaty
The uniform principles mentioned in paragraph 1 are important foundations of the common commercial policy and they turn the Commission into an important player on the scene of world trade relations.
But the caveats and exceptions are almost as important as these first principles.
When the Commission opens negotiations on, for instance a new WTO round (Doha), the Council issues the (tight) mandate for the negotiations. The Commission is then watched every step of the way by the so called 133 Committee, manned by the member states (paragraph 3).
(Outside the scope of legal analysis, it would be interesting to assess how much of the failure of the WTO Doha round is imputable to EU member states’ intransigence with regard to agricultural protectionism.)
The qualified majority voting (paragraph 4) is hemmed in by notable exceptions deriving from the fifth and sixth paragraphs, where unanimity makes progress unlikely.
Article 133 of the Treaty establishing the European Community (TEC) is the central provision on the common commercial policy, published in the latest consolidated version of the treaties OJEU 29.12.2006 C 321 E/104–105:
Article 133 TEC
1. The common commercial policy shall be based on uniform principles, particularly in regard to changes in tariff rates, the conclusion of tariff and trade agreements, the achievement of uniformity in measures of liberalisation, export policy and measures to protect trade such as those to be taken in the event of dumping or subsidies.
2. The Commission shall submit proposals to the Council for implementing the common commercial policy.
3. Where agreements with one or more States or international organisations need to be negotiated, the Commission shall make recommendations to the Council, which shall authorise the Commission to open the necessary negotiations. The Council and the Commission shall be responsible for ensuring that the agreements negotiated are compatible with internal Community policies and rules.
The Commission shall conduct these negotiations in consultation with a special committee appointed by the Council to assist the Commission in this task and within the framework of such directives as the Council may issue to it. The Commission shall report regularly to the special committee on the progress of negotiations.
The relevant provisions of Article 300 shall apply.
4. In exercising the powers conferred upon it by this Article, the Council shall act by a qualified majority.
5. Paragraphs 1 to 4 shall also apply to the negotiation and conclusion of agreements in the fields of trade in services and the commercial aspects of intellectual property, in so far as those agreements are not covered by the said paragraphs and without prejudice to paragraph 6.
By way of derogation from paragraph 4, the Council shall act unanimously when negotiating and concluding an agreement in one of the fields referred to in the first subparagraph, where that agreement includes provisions for which unanimity is required for the adoption of internal rules or where it relates to a field in which the Community has not yet exercised the powers conferred upon it by this Treaty by adopting internal rules.
The Council shall act unanimously with respect to the negotiation and conclusion of a horizontal agreement insofar as it also concerns the preceding subparagraph or the second subparagraph of paragraph 6.
This paragraph shall not affect the right of the Member States to maintain and conclude agreements with third countries or international organisations in so far as such agreements comply with Community law and other relevant international agreements.
6. An agreement may not be concluded by the Council if it includes provisions which would go beyond the Community's internal powers, in particular by leading to harmonisation of the laws or regulations of the Member States in an area for which this Treaty rules out such harmonisation.
In this regard, by way of derogation from the first subparagraph of paragraph 5, agreements relating to trade in cultural and audiovisual services, educational services, and social and human health services, shall fall within the shared competence of the Community and its Member States. Consequently, in addition to a Community decision taken in accordance with the relevant provisions of Article 300, the negotiation of such agreements shall require the common accord of the Member States. Agreements thus negotiated shall be concluded jointly by the Community and the Member States.
The negotiation and conclusion of international agreements in the field of transport shall continue to be governed by the provisions of Title V and Article 300.
7. Without prejudice to the first subparagraph of paragraph 6, the Council, acting unanimously on a proposal from the Commission and after consulting the European Parliament, may extend the application of paragraphs 1 to 4 to international negotiations and agreements on intellectual property in so far as they are not covered by paragraph 5.
***
Original Lisbon Treaty
Article 2, point 112 of the original Lisbon Treaty (ToL) rearranged the Title on the common commercial policy, renumbered two and repealed two Articles (OJEU 17.12.2007 C 306/80):
TITLES WHICH ARE TO BE MOVED
112) Title IX ‘COMMON COMMERCIAL POLICY’ shall become Title II in Part Five on the Union's external action and Articles 131 and 133 shall become Articles 188 B and 188 C respectively. Article 131 shall be amended as set out below in point 157 and Article 133 shall be replaced by Article 188 C.
Articles 132 and 134 shall be repealed.
**
Article 2, point 158 of the original Lisbon Treaty presented the wording of the new Article 188c of the Treaty of the Functioning of the European Union (OJEU 17.12.2007 C 306/92–93):
158) An Article 188 C shall be inserted, replacing Article 133:
‘Article 188 C
1. The common commercial policy shall be based on uniform principles, particularly with regard to changes in tariff rates, the conclusion of tariff and trade agreements relating to trade in goods and services, and the commercial aspects of intellectual property, foreign direct investment, the achievement of uniformity in measures of liberalisation, export policy and measures to protect trade such as those to be taken in the event of dumping or subsidies. The common commercial policy shall be conducted in the context of the principles and objectives of the Union's external action.
2. The European Parliament and the Council, acting by means of regulations in accordance with the ordinary legislative procedure, shall adopt the measures defining the framework for implementing the common commercial policy.
3. Where agreements with one or more third countries or international organisations need to be negotiated and concluded, Article 188 N shall apply, subject to the special provisions of this Article.
The Commission shall make recommendations to the Council, which shall authorise it to open the necessary negotiations. The Council and the Commission shall be responsible for ensuring that the agreements negotiated are compatible with internal Union policies and rules.
The Commission shall conduct these negotiations in consultation with a special committee appointed by the Council to assist the Commission in this task and within the framework of such directives as the Council may issue to it. The Commission shall report regularly to the special committee and to the European Parliament on the progress of negotiations.
4. For the negotiation and conclusion of the agreements referred to in paragraph 3, the Council shall act by a qualified majority.
For the negotiation and conclusion of agreements in the fields of trade in services and the commercial aspects of intellectual property, as well as foreign direct investment, the Council shall act unanimously where such agreements include provisions for which unanimity is required for the adoption of internal rules.
The Council shall also act unanimously for the negotiation and conclusion of agreements:
(a) in the field of trade in cultural and audiovisual services, where these agreements risk prejudicing the Union's cultural and linguistic diversity;
(b) in the field of trade in social, education and health services, where these agreements risk seriously disturbing the national organisation of such services and prejudicing the responsibility of Member States to deliver them.
5. The negotiation and conclusion of international agreements in the field of transport shall be subject to Title V of Part Three and to Article 188 N.
6. The exercise of the competences conferred by this Article in the field of the common commercial policy shall not affect the delimitation of competences between the Union and the Member States, and shall not lead to harmonisation of legislative or regulatory provisions of the Member States insofar as the Treaties exclude such harmonisation.’.
***
Consolidated Lisbon Treaty
Article 188c and the referrals were renumbered in the consolidated version of the Treaty of Lisbon. Even if the rest of the wording is the same as above, we present the latest version for ease of reference in the form it will be read by students and practitioners, if the Lisbon Treaty enters into force (OJEU 9.5.2008 C 115/140–141):
Article 207 TFEU
(ex Article 133 TEC)
1. The common commercial policy shall be based on uniform principles, particularly with regard to changes in tariff rates, the conclusion of tariff and trade agreements relating to trade in goods and services, and the commercial aspects of intellectual property, foreign direct investment, the achievement of uniformity in measures of liberalisation, export policy and measures to protect trade such as those to be taken in the event of dumping or subsidies. The common commercial policy shall be conducted in the context of the principles and objectives of the Union's external action.
2. The European Parliament and the Council, acting by means of regulations in accordance with the ordinary legislative procedure, shall adopt the measures defining the framework for implementing the common commercial policy.
3. Where agreements with one or more third countries or international organisations need to be negotiated and concluded, Article 218 shall apply, subject to the special provisions of this Article.
The Commission shall make recommendations to the Council, which shall authorise it to open the necessary negotiations. The Council and the Commission shall be responsible for ensuring that the agreements negotiated are compatible with internal Union policies and rules.
The Commission shall conduct these negotiations in consultation with a special committee appointed by the Council to assist the Commission in this task and within the framework of such directives as the Council may issue to it. The Commission shall report regularly to the special committee and to the European Parliament on the progress of negotiations.
4. For the negotiation and conclusion of the agreements referred to in paragraph 3, the Council shall act by a qualified majority.
For the negotiation and conclusion of agreements in the fields of trade in services and the commercial aspects of intellectual property, as well as foreign direct investment, the Council shall act unanimously where such agreements include provisions for which unanimity is required for the adoption of internal rules.
The Council shall also act unanimously for the negotiation and conclusion of agreements:
(a) in the field of trade in cultural and audiovisual services, where these agreements risk prejudicing the Union's cultural and linguistic diversity;
(b) in the field of trade in social, education and health services, where these agreements risk seriously disturbing the national organisation of such services and prejudicing the responsibility of Member States to deliver them.
5. The negotiation and conclusion of international agreements in the field of transport shall be subject to Title VI of Part Three and to Article 218.
6. The exercise of the competences conferred by this Article in the field of the common commercial policy shall not affect the delimitation of competences between the Union and the Member States, and shall not lead to harmonisation of legislative or regulatory provisions of the Member States in so far as the Treaties exclude such harmonisation.
***
Comment
The new monster Article 207 TFEU includes both the whole scope of foreign trade policy, the plethora of instruments and the procedures. Most of the contents are taken over from the current Article 133 TEC, but Article 207 TFEU is more readable.
If there are improvements, they derive from Article III-315 of the Constitutional Treaty, of which Article 207 TFEU is an almost exact copy.
The scope of trade policy is widened by mentioning trade agreements in relation to and services, and by including the commercial aspects of intellectual property, as well as foreign direct investment (paragraph 1). The unanimity rule in paragraph 4 does much to dampen expectations.
The ordinary legislative procedure strengthens the role of the European Parliament and the legitimacy of the trade policy framework (paragraph 2). The European Parliament (committee) is now given the formal right to be informed about international trade negotiations (paragraph 2).
***
Further reading
Here are some suggestions for interested readers.
UK House of Lords, European Union Committee: Current Developments in European Trade Policy (HL Paper 8, published 28 November2007)
UK House of Lords, European Union Committee: Developments in EU Trade Policy (HL Paper 200, published 5 December 2008)
Stephen Woolcock: The potential impact of the Lisbon Treaty on European Union External Trade Policy (European Policy Analysis, June Issue 8-2008; Sieps – Swedish Institute for European Policy Studies)
Stormy Mildner: Die Doha-Runde der WTO – Stolpersteine auf dem Weg zu einem erfolgreichen Verhandlungsabschluss (SWP-Studie, Januar 2009)
Ralf Grahn
The customs union and the common commercial policy are among the most uniform policy areas of the European Union, and the Lisbon Treaty would modernise the scope of trade, at least formally.
Member states’ protective interests and the unanimity rule make the Lisbon Treaty a more qualified success than would appear at a first glance.
***
Current treaty
The uniform principles mentioned in paragraph 1 are important foundations of the common commercial policy and they turn the Commission into an important player on the scene of world trade relations.
But the caveats and exceptions are almost as important as these first principles.
When the Commission opens negotiations on, for instance a new WTO round (Doha), the Council issues the (tight) mandate for the negotiations. The Commission is then watched every step of the way by the so called 133 Committee, manned by the member states (paragraph 3).
(Outside the scope of legal analysis, it would be interesting to assess how much of the failure of the WTO Doha round is imputable to EU member states’ intransigence with regard to agricultural protectionism.)
The qualified majority voting (paragraph 4) is hemmed in by notable exceptions deriving from the fifth and sixth paragraphs, where unanimity makes progress unlikely.
Article 133 of the Treaty establishing the European Community (TEC) is the central provision on the common commercial policy, published in the latest consolidated version of the treaties OJEU 29.12.2006 C 321 E/104–105:
Article 133 TEC
1. The common commercial policy shall be based on uniform principles, particularly in regard to changes in tariff rates, the conclusion of tariff and trade agreements, the achievement of uniformity in measures of liberalisation, export policy and measures to protect trade such as those to be taken in the event of dumping or subsidies.
2. The Commission shall submit proposals to the Council for implementing the common commercial policy.
3. Where agreements with one or more States or international organisations need to be negotiated, the Commission shall make recommendations to the Council, which shall authorise the Commission to open the necessary negotiations. The Council and the Commission shall be responsible for ensuring that the agreements negotiated are compatible with internal Community policies and rules.
The Commission shall conduct these negotiations in consultation with a special committee appointed by the Council to assist the Commission in this task and within the framework of such directives as the Council may issue to it. The Commission shall report regularly to the special committee on the progress of negotiations.
The relevant provisions of Article 300 shall apply.
4. In exercising the powers conferred upon it by this Article, the Council shall act by a qualified majority.
5. Paragraphs 1 to 4 shall also apply to the negotiation and conclusion of agreements in the fields of trade in services and the commercial aspects of intellectual property, in so far as those agreements are not covered by the said paragraphs and without prejudice to paragraph 6.
By way of derogation from paragraph 4, the Council shall act unanimously when negotiating and concluding an agreement in one of the fields referred to in the first subparagraph, where that agreement includes provisions for which unanimity is required for the adoption of internal rules or where it relates to a field in which the Community has not yet exercised the powers conferred upon it by this Treaty by adopting internal rules.
The Council shall act unanimously with respect to the negotiation and conclusion of a horizontal agreement insofar as it also concerns the preceding subparagraph or the second subparagraph of paragraph 6.
This paragraph shall not affect the right of the Member States to maintain and conclude agreements with third countries or international organisations in so far as such agreements comply with Community law and other relevant international agreements.
6. An agreement may not be concluded by the Council if it includes provisions which would go beyond the Community's internal powers, in particular by leading to harmonisation of the laws or regulations of the Member States in an area for which this Treaty rules out such harmonisation.
In this regard, by way of derogation from the first subparagraph of paragraph 5, agreements relating to trade in cultural and audiovisual services, educational services, and social and human health services, shall fall within the shared competence of the Community and its Member States. Consequently, in addition to a Community decision taken in accordance with the relevant provisions of Article 300, the negotiation of such agreements shall require the common accord of the Member States. Agreements thus negotiated shall be concluded jointly by the Community and the Member States.
The negotiation and conclusion of international agreements in the field of transport shall continue to be governed by the provisions of Title V and Article 300.
7. Without prejudice to the first subparagraph of paragraph 6, the Council, acting unanimously on a proposal from the Commission and after consulting the European Parliament, may extend the application of paragraphs 1 to 4 to international negotiations and agreements on intellectual property in so far as they are not covered by paragraph 5.
***
Original Lisbon Treaty
Article 2, point 112 of the original Lisbon Treaty (ToL) rearranged the Title on the common commercial policy, renumbered two and repealed two Articles (OJEU 17.12.2007 C 306/80):
TITLES WHICH ARE TO BE MOVED
112) Title IX ‘COMMON COMMERCIAL POLICY’ shall become Title II in Part Five on the Union's external action and Articles 131 and 133 shall become Articles 188 B and 188 C respectively. Article 131 shall be amended as set out below in point 157 and Article 133 shall be replaced by Article 188 C.
Articles 132 and 134 shall be repealed.
**
Article 2, point 158 of the original Lisbon Treaty presented the wording of the new Article 188c of the Treaty of the Functioning of the European Union (OJEU 17.12.2007 C 306/92–93):
158) An Article 188 C shall be inserted, replacing Article 133:
‘Article 188 C
1. The common commercial policy shall be based on uniform principles, particularly with regard to changes in tariff rates, the conclusion of tariff and trade agreements relating to trade in goods and services, and the commercial aspects of intellectual property, foreign direct investment, the achievement of uniformity in measures of liberalisation, export policy and measures to protect trade such as those to be taken in the event of dumping or subsidies. The common commercial policy shall be conducted in the context of the principles and objectives of the Union's external action.
2. The European Parliament and the Council, acting by means of regulations in accordance with the ordinary legislative procedure, shall adopt the measures defining the framework for implementing the common commercial policy.
3. Where agreements with one or more third countries or international organisations need to be negotiated and concluded, Article 188 N shall apply, subject to the special provisions of this Article.
The Commission shall make recommendations to the Council, which shall authorise it to open the necessary negotiations. The Council and the Commission shall be responsible for ensuring that the agreements negotiated are compatible with internal Union policies and rules.
The Commission shall conduct these negotiations in consultation with a special committee appointed by the Council to assist the Commission in this task and within the framework of such directives as the Council may issue to it. The Commission shall report regularly to the special committee and to the European Parliament on the progress of negotiations.
4. For the negotiation and conclusion of the agreements referred to in paragraph 3, the Council shall act by a qualified majority.
For the negotiation and conclusion of agreements in the fields of trade in services and the commercial aspects of intellectual property, as well as foreign direct investment, the Council shall act unanimously where such agreements include provisions for which unanimity is required for the adoption of internal rules.
The Council shall also act unanimously for the negotiation and conclusion of agreements:
(a) in the field of trade in cultural and audiovisual services, where these agreements risk prejudicing the Union's cultural and linguistic diversity;
(b) in the field of trade in social, education and health services, where these agreements risk seriously disturbing the national organisation of such services and prejudicing the responsibility of Member States to deliver them.
5. The negotiation and conclusion of international agreements in the field of transport shall be subject to Title V of Part Three and to Article 188 N.
6. The exercise of the competences conferred by this Article in the field of the common commercial policy shall not affect the delimitation of competences between the Union and the Member States, and shall not lead to harmonisation of legislative or regulatory provisions of the Member States insofar as the Treaties exclude such harmonisation.’.
***
Consolidated Lisbon Treaty
Article 188c and the referrals were renumbered in the consolidated version of the Treaty of Lisbon. Even if the rest of the wording is the same as above, we present the latest version for ease of reference in the form it will be read by students and practitioners, if the Lisbon Treaty enters into force (OJEU 9.5.2008 C 115/140–141):
Article 207 TFEU
(ex Article 133 TEC)
1. The common commercial policy shall be based on uniform principles, particularly with regard to changes in tariff rates, the conclusion of tariff and trade agreements relating to trade in goods and services, and the commercial aspects of intellectual property, foreign direct investment, the achievement of uniformity in measures of liberalisation, export policy and measures to protect trade such as those to be taken in the event of dumping or subsidies. The common commercial policy shall be conducted in the context of the principles and objectives of the Union's external action.
2. The European Parliament and the Council, acting by means of regulations in accordance with the ordinary legislative procedure, shall adopt the measures defining the framework for implementing the common commercial policy.
3. Where agreements with one or more third countries or international organisations need to be negotiated and concluded, Article 218 shall apply, subject to the special provisions of this Article.
The Commission shall make recommendations to the Council, which shall authorise it to open the necessary negotiations. The Council and the Commission shall be responsible for ensuring that the agreements negotiated are compatible with internal Union policies and rules.
The Commission shall conduct these negotiations in consultation with a special committee appointed by the Council to assist the Commission in this task and within the framework of such directives as the Council may issue to it. The Commission shall report regularly to the special committee and to the European Parliament on the progress of negotiations.
4. For the negotiation and conclusion of the agreements referred to in paragraph 3, the Council shall act by a qualified majority.
For the negotiation and conclusion of agreements in the fields of trade in services and the commercial aspects of intellectual property, as well as foreign direct investment, the Council shall act unanimously where such agreements include provisions for which unanimity is required for the adoption of internal rules.
The Council shall also act unanimously for the negotiation and conclusion of agreements:
(a) in the field of trade in cultural and audiovisual services, where these agreements risk prejudicing the Union's cultural and linguistic diversity;
(b) in the field of trade in social, education and health services, where these agreements risk seriously disturbing the national organisation of such services and prejudicing the responsibility of Member States to deliver them.
5. The negotiation and conclusion of international agreements in the field of transport shall be subject to Title VI of Part Three and to Article 218.
6. The exercise of the competences conferred by this Article in the field of the common commercial policy shall not affect the delimitation of competences between the Union and the Member States, and shall not lead to harmonisation of legislative or regulatory provisions of the Member States in so far as the Treaties exclude such harmonisation.
***
Comment
The new monster Article 207 TFEU includes both the whole scope of foreign trade policy, the plethora of instruments and the procedures. Most of the contents are taken over from the current Article 133 TEC, but Article 207 TFEU is more readable.
If there are improvements, they derive from Article III-315 of the Constitutional Treaty, of which Article 207 TFEU is an almost exact copy.
The scope of trade policy is widened by mentioning trade agreements in relation to and services, and by including the commercial aspects of intellectual property, as well as foreign direct investment (paragraph 1). The unanimity rule in paragraph 4 does much to dampen expectations.
The ordinary legislative procedure strengthens the role of the European Parliament and the legitimacy of the trade policy framework (paragraph 2). The European Parliament (committee) is now given the formal right to be informed about international trade negotiations (paragraph 2).
***
Further reading
Here are some suggestions for interested readers.
UK House of Lords, European Union Committee: Current Developments in European Trade Policy (HL Paper 8, published 28 November2007)
UK House of Lords, European Union Committee: Developments in EU Trade Policy (HL Paper 200, published 5 December 2008)
Stephen Woolcock: The potential impact of the Lisbon Treaty on European Union External Trade Policy (European Policy Analysis, June Issue 8-2008; Sieps – Swedish Institute for European Policy Studies)
Stormy Mildner: Die Doha-Runde der WTO – Stolpersteine auf dem Weg zu einem erfolgreichen Verhandlungsabschluss (SWP-Studie, Januar 2009)
Ralf Grahn
Wednesday, 28 January 2009
Tender notices 2008 in Finland
Last year 19,713 tender notices were published in Finland for a total value of 14 billion euros. Even if the notices for the largest public contracts, above the EU thresholds, are published on TED (Tenders Electronic Daily), national tenders are not unimportant on the Finnish procurement market.
These are contracts below the EU thresholds, but above the national ones laid down in the Act on public contracts. In 2008 the number of national notices was 13,988, for a total value of 6 billion euros.
Source: HILMA – Julkiset hankinnat: HILMAssa julkaistut hankintailmoitukset 1.1.2008 – 31.12.2008 (Statistics 12 January 2009)
www.hankintailmoitukset.fi
Ralf Grahn
These are contracts below the EU thresholds, but above the national ones laid down in the Act on public contracts. In 2008 the number of national notices was 13,988, for a total value of 6 billion euros.
Source: HILMA – Julkiset hankinnat: HILMAssa julkaistut hankintailmoitukset 1.1.2008 – 31.12.2008 (Statistics 12 January 2009)
www.hankintailmoitukset.fi
Ralf Grahn
EU Law: Common commercial policy
With about a fifth of world exports and imports, the European Union is an international trade heavyweight. The framework for external trade is managed through the common commercial policy.
***
Current treaty
Article 131 of the Treaty establishing the European Community (TEC) presents the objectives of the common commercial policy.
The customs union between the member states was based on the Treaty of Rome (EEC Treaty) and gradually became a reality.
Against the background of a common customs tariff, the member states of the European Community (European Union) strive for:
· Harmonius development of world trade
· Abolition of restrictions on international trade
· Lowering of customs barriers
The idea behind the second paragraph is still valid, but since the establishment of the customs union the provision is obsolete.
Article 131 TEC is found in the latest consolidated version of the treaties, OJEU 29.12.2006 C 321 E/103:
TITLE IX
COMMON COMMERCIAL POLICY
Article 131 TEC
By establishing a customs union between themselves Member States aim to contribute, in the common interest, to the harmonious development of world trade, the progressive abolition of restrictions on international trade and the lowering of customs barriers.
The common commercial policy shall take into account the favourable effect which the abolition of customs duties between Member States may have on the increase in the competitive strength of undertakings in those States.
***
Original Lisbon Treaty
Article 2, point 112 of the original Lisbon Treaty (ToL) rearranged the Title on the common commercial policy, renumbered two and repealed two Articles (OJEU 17.12.2007 C 306/80):
TITLES WHICH ARE TO BE MOVED
112) Title IX ‘COMMON COMMERCIAL POLICY’ shall become Title II in Part Five on the Union's external action and Articles 131 and 133 shall become Articles 188 B and 188 C respectively. Article 131 shall be amended as set out below in point 157 and Article 133 shall be replaced by Article 188 C.
Articles 132 and 134 shall be repealed.
***
Article 2, point 156 ToL amended the wording of Article 131 TEC, the renumbered Article 188b (page 92):
157) An Article 188 B shall be inserted, with the wording of Article 131; it shall be amended as follows:
(a) the first paragraph shall be replaced by the following:
‘By establishing a customs union in accordance with Articles 23 to 27, the Union shall contribute, in the common interest, to the harmonious development of world trade, the progressive abolition of restrictions on international trade and on foreign direct investment, and the lowering of customs and other barriers.’;
(b) the second paragraph shall be deleted.
***
Consolidated Lisbon Treaty
The readable, consolidated Treaty of Lisbon, contains the renumbered Article 206 of the Treaty on the Functioning of the European Union (TFEU), OJEU 9.5.2008 C 115/139:
TITLE II
COMMON COMMERCIAL POLICY
Article 206 TFEU
(ex Article 131 TEC)
By establishing a customs union in accordance with Articles 28 to 32, the Union shall contribute, in the common interest, to the harmonious development of world trade, the progressive abolition of restrictions on international trade and on foreign direct investment, and the lowering of customs and other barriers.
***
The novelties are the reference to the Articles 28 to 32 on the customs union, mentioning restrictions on foreign direct investment and the addition of other barriers.
The Lisbon Treaty wording is practically the same as Article III-314 of the Constitutional Treaty.
***
EU competence
When the TFEU presents the rough areas of EU competence, the customs union and its more or less logic corollary, the common commercial policy, appear among the areas of exclusive competence. The second paragraph on international agreements is significant in the field of international trade:
Article 3 TFEU
1. The Union shall have exclusive competence in the following areas:
(a) customs union;
(b) the establishing of the competition rules necessary for the functioning of the internal market;
(c) monetary policy for the Member States whose currency is the euro;
(d) the conservation of marine biological resources under the common fisheries policy;
(e) common commercial policy.
2. The Union shall also have exclusive competence for the conclusion of an international agreement when its conclusion is provided for in a legislative act of the Union or is necessary to enable the Union to exercise its internal competence, or in so far as its conclusion may affect common rules or alter their scope.
***
Summaries of external trade legislation
The Commission’s Scadplus web page External trade offers links to information about various aspects of international trade:
http://europa.eu/scadplus/leg/en/s05020.htm
***
Commission activities
Activities and news are found on the web pages of the Commission’s Directorate-General External Trade:
http://ec.europa.eu/trade/
Ralf Grahn
***
Current treaty
Article 131 of the Treaty establishing the European Community (TEC) presents the objectives of the common commercial policy.
The customs union between the member states was based on the Treaty of Rome (EEC Treaty) and gradually became a reality.
Against the background of a common customs tariff, the member states of the European Community (European Union) strive for:
· Harmonius development of world trade
· Abolition of restrictions on international trade
· Lowering of customs barriers
The idea behind the second paragraph is still valid, but since the establishment of the customs union the provision is obsolete.
Article 131 TEC is found in the latest consolidated version of the treaties, OJEU 29.12.2006 C 321 E/103:
TITLE IX
COMMON COMMERCIAL POLICY
Article 131 TEC
By establishing a customs union between themselves Member States aim to contribute, in the common interest, to the harmonious development of world trade, the progressive abolition of restrictions on international trade and the lowering of customs barriers.
The common commercial policy shall take into account the favourable effect which the abolition of customs duties between Member States may have on the increase in the competitive strength of undertakings in those States.
***
Original Lisbon Treaty
Article 2, point 112 of the original Lisbon Treaty (ToL) rearranged the Title on the common commercial policy, renumbered two and repealed two Articles (OJEU 17.12.2007 C 306/80):
TITLES WHICH ARE TO BE MOVED
112) Title IX ‘COMMON COMMERCIAL POLICY’ shall become Title II in Part Five on the Union's external action and Articles 131 and 133 shall become Articles 188 B and 188 C respectively. Article 131 shall be amended as set out below in point 157 and Article 133 shall be replaced by Article 188 C.
Articles 132 and 134 shall be repealed.
***
Article 2, point 156 ToL amended the wording of Article 131 TEC, the renumbered Article 188b (page 92):
157) An Article 188 B shall be inserted, with the wording of Article 131; it shall be amended as follows:
(a) the first paragraph shall be replaced by the following:
‘By establishing a customs union in accordance with Articles 23 to 27, the Union shall contribute, in the common interest, to the harmonious development of world trade, the progressive abolition of restrictions on international trade and on foreign direct investment, and the lowering of customs and other barriers.’;
(b) the second paragraph shall be deleted.
***
Consolidated Lisbon Treaty
The readable, consolidated Treaty of Lisbon, contains the renumbered Article 206 of the Treaty on the Functioning of the European Union (TFEU), OJEU 9.5.2008 C 115/139:
TITLE II
COMMON COMMERCIAL POLICY
Article 206 TFEU
(ex Article 131 TEC)
By establishing a customs union in accordance with Articles 28 to 32, the Union shall contribute, in the common interest, to the harmonious development of world trade, the progressive abolition of restrictions on international trade and on foreign direct investment, and the lowering of customs and other barriers.
***
The novelties are the reference to the Articles 28 to 32 on the customs union, mentioning restrictions on foreign direct investment and the addition of other barriers.
The Lisbon Treaty wording is practically the same as Article III-314 of the Constitutional Treaty.
***
EU competence
When the TFEU presents the rough areas of EU competence, the customs union and its more or less logic corollary, the common commercial policy, appear among the areas of exclusive competence. The second paragraph on international agreements is significant in the field of international trade:
Article 3 TFEU
1. The Union shall have exclusive competence in the following areas:
(a) customs union;
(b) the establishing of the competition rules necessary for the functioning of the internal market;
(c) monetary policy for the Member States whose currency is the euro;
(d) the conservation of marine biological resources under the common fisheries policy;
(e) common commercial policy.
2. The Union shall also have exclusive competence for the conclusion of an international agreement when its conclusion is provided for in a legislative act of the Union or is necessary to enable the Union to exercise its internal competence, or in so far as its conclusion may affect common rules or alter their scope.
***
Summaries of external trade legislation
The Commission’s Scadplus web page External trade offers links to information about various aspects of international trade:
http://europa.eu/scadplus/leg/en/s05020.htm
***
Commission activities
Activities and news are found on the web pages of the Commission’s Directorate-General External Trade:
http://ec.europa.eu/trade/
Ralf Grahn
Procurement Finland: National thresholds
The Finnish Act on Public Contracts (348/2007) transposed the EC (EU) Procurement Directive 2004/18/EC into national law. The official texts are in Finnish and Swedish, but an unofficial English translation is available at:
http://www.finlex.fi/en/laki/kaannokset/2007/en20070348.pdf
The Act on Public Contracts entered into force on 1 June 2007.
***
National thresholds
The Act applies to procurement procedures well below the European Community thresholds through national thresholds. National publication requirements apply to contracts above the following values:
National thresholds (Section 15 of the Act on public contracts), in euros
Supply and service contracts 15 000
Concessions 15 000
Annex B (Group 25) joint procurement for health care, social services and education
50 000
Public works contracts 100 000
Concessions 100 000
Design contests 15 000
Source: Ministry of Employment and the Economy (Finland)
Ralf Grahn
http://www.finlex.fi/en/laki/kaannokset/2007/en20070348.pdf
The Act on Public Contracts entered into force on 1 June 2007.
***
National thresholds
The Act applies to procurement procedures well below the European Community thresholds through national thresholds. National publication requirements apply to contracts above the following values:
National thresholds (Section 15 of the Act on public contracts), in euros
Supply and service contracts 15 000
Concessions 15 000
Annex B (Group 25) joint procurement for health care, social services and education
50 000
Public works contracts 100 000
Concessions 100 000
Design contests 15 000
Source: Ministry of Employment and the Economy (Finland)
Ralf Grahn
Tuesday, 27 January 2009
EU external action: General provisions
The Treaty of Lisbon brings the current external Community policies together in a more comprehensive manner, although the intergovernmental conference ‘modified’ the whole area for the worse compared with the Constitutional Treaty, by parking the common foreign and security policy and the common security and defence policy in the Treaty on European Union, despite the formal abolishment of the pillar structure.
In practice, Council tutelage of ‘Community pillar’ external action is going to increase through the double-hatted High Representative and the semi-permanent President of the European Council.
***
Current Treaties
In the current Treaty on European Union Title V deals with the common foreign and security policy, whereas the Treaty establishing the European Community has Title IX Common commercial policy, Title XX Development cooperation, Title XXI Economic, financial and technical cooperation with third countries, international agreements, restrictive measures, international relations and instruments among the general and final provisions (Part Six).
***
European Convention
The European Convention did not have temerity enough to abolish the intergovernmental character of the common foreign and security policy (CFSP), including the common security and defence policy (CSDP), but Title Five brought together both intergovernmental (second pillar) and the ‘Community pillar’ external action, in Articles III-193 to III-231 of the Draft Constitution.
***
Constitutional Treaty
The intergovernmental conference (IGC 2004) preserved the structure of the draft Constitution in Title V The Union’s external action, of the Constitutional Treaty, Articles III-292 to III-329.
***
Original Lisbon Treaty (ToL)
The original Treaty of Lisbon sets out the contents of the new Part Five on external action in Article 2, point 154 and point provides for a new Article 188a to do the splits between the treaties (OJEU 17.12.2007 C 306/91):
EXTERNAL ACTION BY THE UNION
154) A new Part Five shall be inserted. Its heading shall be ‘EXTERNAL ACTION BY THE UNION’ and it shall contain the following Titles and Chapters:
Title I: General provisions on the Union's external action
Title II: Common commercial policy
Title III: Cooperation with third countries and humanitarian aid
Chapter 1: Development cooperation
Chapter 2: Economic, financial and technical cooperation with third countries
Chapter 3: Humanitarian aid
Title IV: Restrictive measures
Title V: International agreements
Title VI: The Union's relations with international organisations and third countries and Union delegations
Title VII: Solidarity clause.
GENERAL PROVISIONS
155) The following new Title I and new Article 188 A shall be inserted:
‘TITLE I
GENERAL PROVISONS ON THE UNION'S EXTERNAL ACTION
Article 188 A
The Union's action on the international scene, pursuant to this Part, shall be guided by the principles, pursue the objectives and be conducted in accordance with the general provisions laid down in Chapter 1 of Title V of the Treaty on European Union.’.
***
IGC 2007 Mandate
The mandate for the intergovernmental conference (IGC 2007) stated the general goal of external action coherence, but each IGC working under the constraint of unanimous decision making offers new opportunities to tax the common good.
In comparison with the IGC 2004, i.e. the Constitutional Treaty, the IGC 2007 Mandate contained a number of so called modifications of which point 19(r) was one (page 9):
r) At the beginning of the Part on the Union's external action, an Article will be inserted stating that the Union's action on the international scene will be guided by the principles, will pursue the objectives and will be conducted in accordance with the general provisions on the Union's external action which are laid down in Chapter 1 of Title V of the TEU.
***
Consolidated Lisbon Treaty
When we compare with the current TEC, the commendable reform is that Part Five External action by the Union brings together the European Union’s (Community pillar) international action under one roof for added clarity.
The half-measure reform is exposed by the first provision. The two treaty structure was preserved, although modernised, but the CFSP and the CSDP remained stuck in the TEU.
Article 205 of the consolidated version of the Lisbon Treaty’s Treaty on the Functioning of the European Union (TFEU) refers to the principles, objectives and conduct of the Union’s action on the international scene laid down in the Treaty on European Union (TEU), where the intergovernmental common foreign and security policy (CFSF, including CSDP) still resides despite the formal abolishment of the pillar structure.
Article 205 TFEU is therefore needed as a bridging clause between the TFEU and the TEU, aiming at consistency between the ‘abolished’ pillars (OJEU 9.5.2008 C 115/139):
PART FIVE
EXTERNAL ACTION BY THE UNION
TITLE I
GENERAL PROVISIONS ON THE UNION'S EXTERNAL ACTION
Article 205 TFEU
The Union's action on the international scene, pursuant to this Part, shall be guided by the principles, pursue the objectives and be conducted in accordance with the general provisions laid down in Chapter 1 of Title V of the Treaty on European Union.
***
Principles, objectives and conduct
We have discussed and traced the drafting history of the general provisions of the Treaty on European Union in earlier blog posts, but for ease of reference we offer the text of Chapter 1 of Title V, Articles 21 to 22 TEU, as they are presented in the consolidated version of the Lisbon Treaty (OJEU 9.5.2008 C 115/28–30):
TITLE V
GENERAL PROVISIONS ON THE UNION'S EXTERNAL ACTION AND SPECIFIC
PROVISIONS ON THE COMMON FOREIGN AND SECURITY POLICY
CHAPTER 1
GENERAL PROVISIONS ON THE UNION'S EXTERNAL ACTION
Article 21 TEU
1. The Union's action on the international scene shall be guided by the principles which have inspired its own creation, development and enlargement, and which it seeks to advance in the wider world: democracy, the rule of law, the universality and indivisibility of human rights and fundamental freedoms, respect for human dignity, the principles of equality and solidarity, and respect for the principles of the United Nations Charter and international law.
The Union shall seek to develop relations and build partnerships with third countries, and international, regional or global organisations which share the principles referred to in the first subparagraph. It shall promote multilateral solutions to common problems, in particular in the framework of the United Nations.
2. The Union shall define and pursue common policies and actions, and shall work for a high degree of cooperation in all fields of international relations, in order to:
(a) safeguard its values, fundamental interests, security, independence and integrity;
(b) consolidate and support democracy, the rule of law, human rights and the principles of international law;
(c) preserve peace, prevent conflicts and strengthen international security, in accordance with the purposes and principles of the United Nations Charter, with the principles of the Helsinki Final Act and with the aims of the Charter of Paris, including those relating to external borders;
(d) foster the sustainable economic, social and environmental development of developing countries, with the primary aim of eradicating poverty;
(e) encourage the integration of all countries into the world economy, including through the progressive abolition of restrictions on international trade;
(f) help develop international measures to preserve and improve the quality of the environment and the sustainable management of global natural resources, in order to ensure sustainable development;
(g) assist populations, countries and regions confronting natural or man-made disasters; and
(h) promote an international system based on stronger multilateral cooperation and good global governance.
3. The Union shall respect the principles and pursue the objectives set out in paragraphs 1 and 2 in the development and implementation of the different areas of the Union's external action covered by this Title and by Part Five of the Treaty on the Functioning of the European Union, and of the external aspects of its other policies.
The Union shall ensure consistency between the different areas of its external action and between these and its other policies. The Council and the Commission, assisted by the High Representative of the Union for Foreign Affairs and Security Policy, shall ensure that consistency and shall cooperate to that effect.
Article 22 TEU
1. On the basis of the principles and objectives set out in Article 21, the European Council shall identify the strategic interests and objectives of the Union.
Decisions of the European Council on the strategic interests and objectives of the Union shall relate to the common foreign and security policy and to other areas of the external action of the Union. Such decisions may concern the relations of the Union with a specific country or region or may be thematic in approach. They shall define their duration, and the means to be made available by the Union and the Member States.
The European Council shall act unanimously on a recommendation from the Council, adopted by the latter under the arrangements laid down for each area. Decisions of the European Council shall be implemented in accordance with the procedures provided for in the Treaties.
2. The High Representative of the Union for Foreign Affairs and Security Policy, for the area of common foreign and security policy, and the Commission, for other areas of external action, may submit joint proposals to the Council.
***
Changing context
The principles are noble, but the circumstances are changing if the Lisbon Treaty enters into force.
We caught a glimpse of the High Representative above. He or she will be appointed by an electorate of 27 and double-hatted to bring consistency to the EU’s external action as a whole. The aim is praiseworthy, but the bidding will increasingly be done by the most influential member states.
The new intergovernmental appointee by 27 electors is the semi-permanent President of the European Council, who will most probably have ambitions of his own and re-interpret the culture of general interest in a sense amenable to the populous member states, if they happen to agree.
The Commission would be more apt to incorporate the guiding principles, but its role will diminish.
Ralf Grahn
In practice, Council tutelage of ‘Community pillar’ external action is going to increase through the double-hatted High Representative and the semi-permanent President of the European Council.
***
Current Treaties
In the current Treaty on European Union Title V deals with the common foreign and security policy, whereas the Treaty establishing the European Community has Title IX Common commercial policy, Title XX Development cooperation, Title XXI Economic, financial and technical cooperation with third countries, international agreements, restrictive measures, international relations and instruments among the general and final provisions (Part Six).
***
European Convention
The European Convention did not have temerity enough to abolish the intergovernmental character of the common foreign and security policy (CFSP), including the common security and defence policy (CSDP), but Title Five brought together both intergovernmental (second pillar) and the ‘Community pillar’ external action, in Articles III-193 to III-231 of the Draft Constitution.
***
Constitutional Treaty
The intergovernmental conference (IGC 2004) preserved the structure of the draft Constitution in Title V The Union’s external action, of the Constitutional Treaty, Articles III-292 to III-329.
***
Original Lisbon Treaty (ToL)
The original Treaty of Lisbon sets out the contents of the new Part Five on external action in Article 2, point 154 and point provides for a new Article 188a to do the splits between the treaties (OJEU 17.12.2007 C 306/91):
EXTERNAL ACTION BY THE UNION
154) A new Part Five shall be inserted. Its heading shall be ‘EXTERNAL ACTION BY THE UNION’ and it shall contain the following Titles and Chapters:
Title I: General provisions on the Union's external action
Title II: Common commercial policy
Title III: Cooperation with third countries and humanitarian aid
Chapter 1: Development cooperation
Chapter 2: Economic, financial and technical cooperation with third countries
Chapter 3: Humanitarian aid
Title IV: Restrictive measures
Title V: International agreements
Title VI: The Union's relations with international organisations and third countries and Union delegations
Title VII: Solidarity clause.
GENERAL PROVISIONS
155) The following new Title I and new Article 188 A shall be inserted:
‘TITLE I
GENERAL PROVISONS ON THE UNION'S EXTERNAL ACTION
Article 188 A
The Union's action on the international scene, pursuant to this Part, shall be guided by the principles, pursue the objectives and be conducted in accordance with the general provisions laid down in Chapter 1 of Title V of the Treaty on European Union.’.
***
IGC 2007 Mandate
The mandate for the intergovernmental conference (IGC 2007) stated the general goal of external action coherence, but each IGC working under the constraint of unanimous decision making offers new opportunities to tax the common good.
In comparison with the IGC 2004, i.e. the Constitutional Treaty, the IGC 2007 Mandate contained a number of so called modifications of which point 19(r) was one (page 9):
r) At the beginning of the Part on the Union's external action, an Article will be inserted stating that the Union's action on the international scene will be guided by the principles, will pursue the objectives and will be conducted in accordance with the general provisions on the Union's external action which are laid down in Chapter 1 of Title V of the TEU.
***
Consolidated Lisbon Treaty
When we compare with the current TEC, the commendable reform is that Part Five External action by the Union brings together the European Union’s (Community pillar) international action under one roof for added clarity.
The half-measure reform is exposed by the first provision. The two treaty structure was preserved, although modernised, but the CFSP and the CSDP remained stuck in the TEU.
Article 205 of the consolidated version of the Lisbon Treaty’s Treaty on the Functioning of the European Union (TFEU) refers to the principles, objectives and conduct of the Union’s action on the international scene laid down in the Treaty on European Union (TEU), where the intergovernmental common foreign and security policy (CFSF, including CSDP) still resides despite the formal abolishment of the pillar structure.
Article 205 TFEU is therefore needed as a bridging clause between the TFEU and the TEU, aiming at consistency between the ‘abolished’ pillars (OJEU 9.5.2008 C 115/139):
PART FIVE
EXTERNAL ACTION BY THE UNION
TITLE I
GENERAL PROVISIONS ON THE UNION'S EXTERNAL ACTION
Article 205 TFEU
The Union's action on the international scene, pursuant to this Part, shall be guided by the principles, pursue the objectives and be conducted in accordance with the general provisions laid down in Chapter 1 of Title V of the Treaty on European Union.
***
Principles, objectives and conduct
We have discussed and traced the drafting history of the general provisions of the Treaty on European Union in earlier blog posts, but for ease of reference we offer the text of Chapter 1 of Title V, Articles 21 to 22 TEU, as they are presented in the consolidated version of the Lisbon Treaty (OJEU 9.5.2008 C 115/28–30):
TITLE V
GENERAL PROVISIONS ON THE UNION'S EXTERNAL ACTION AND SPECIFIC
PROVISIONS ON THE COMMON FOREIGN AND SECURITY POLICY
CHAPTER 1
GENERAL PROVISIONS ON THE UNION'S EXTERNAL ACTION
Article 21 TEU
1. The Union's action on the international scene shall be guided by the principles which have inspired its own creation, development and enlargement, and which it seeks to advance in the wider world: democracy, the rule of law, the universality and indivisibility of human rights and fundamental freedoms, respect for human dignity, the principles of equality and solidarity, and respect for the principles of the United Nations Charter and international law.
The Union shall seek to develop relations and build partnerships with third countries, and international, regional or global organisations which share the principles referred to in the first subparagraph. It shall promote multilateral solutions to common problems, in particular in the framework of the United Nations.
2. The Union shall define and pursue common policies and actions, and shall work for a high degree of cooperation in all fields of international relations, in order to:
(a) safeguard its values, fundamental interests, security, independence and integrity;
(b) consolidate and support democracy, the rule of law, human rights and the principles of international law;
(c) preserve peace, prevent conflicts and strengthen international security, in accordance with the purposes and principles of the United Nations Charter, with the principles of the Helsinki Final Act and with the aims of the Charter of Paris, including those relating to external borders;
(d) foster the sustainable economic, social and environmental development of developing countries, with the primary aim of eradicating poverty;
(e) encourage the integration of all countries into the world economy, including through the progressive abolition of restrictions on international trade;
(f) help develop international measures to preserve and improve the quality of the environment and the sustainable management of global natural resources, in order to ensure sustainable development;
(g) assist populations, countries and regions confronting natural or man-made disasters; and
(h) promote an international system based on stronger multilateral cooperation and good global governance.
3. The Union shall respect the principles and pursue the objectives set out in paragraphs 1 and 2 in the development and implementation of the different areas of the Union's external action covered by this Title and by Part Five of the Treaty on the Functioning of the European Union, and of the external aspects of its other policies.
The Union shall ensure consistency between the different areas of its external action and between these and its other policies. The Council and the Commission, assisted by the High Representative of the Union for Foreign Affairs and Security Policy, shall ensure that consistency and shall cooperate to that effect.
Article 22 TEU
1. On the basis of the principles and objectives set out in Article 21, the European Council shall identify the strategic interests and objectives of the Union.
Decisions of the European Council on the strategic interests and objectives of the Union shall relate to the common foreign and security policy and to other areas of the external action of the Union. Such decisions may concern the relations of the Union with a specific country or region or may be thematic in approach. They shall define their duration, and the means to be made available by the Union and the Member States.
The European Council shall act unanimously on a recommendation from the Council, adopted by the latter under the arrangements laid down for each area. Decisions of the European Council shall be implemented in accordance with the procedures provided for in the Treaties.
2. The High Representative of the Union for Foreign Affairs and Security Policy, for the area of common foreign and security policy, and the Commission, for other areas of external action, may submit joint proposals to the Council.
***
Changing context
The principles are noble, but the circumstances are changing if the Lisbon Treaty enters into force.
We caught a glimpse of the High Representative above. He or she will be appointed by an electorate of 27 and double-hatted to bring consistency to the EU’s external action as a whole. The aim is praiseworthy, but the bidding will increasingly be done by the most influential member states.
The new intergovernmental appointee by 27 electors is the semi-permanent President of the European Council, who will most probably have ambitions of his own and re-interpret the culture of general interest in a sense amenable to the populous member states, if they happen to agree.
The Commission would be more apt to incorporate the guiding principles, but its role will diminish.
Ralf Grahn
EUISS: European Defence Markets
In Towards a European Defence Market (Chaillot Paper No 113, November 2008, 126 pages), published by the European Union Institute for Security Studies (EUISS), four researchers describe the current state of affairs and the prospects for progress.
The publication is available at www.iss.europa.eu and the individual contributions are:
Daniel Keohane: Introduction – Towards a European Defence Market
Erkki Aalto: Interpretations of Article 296
Christian Mölling: Options for an EU regime on intra-Community transfers of defence goods
Sophie de Vaucorbeil: The changing transatlantic defence market
***
Defence transfers
The publication of the EUISS report roughly coincided with the adoption of the new Defence Transfers Directive by the European Parliament.
Christian Mölling’s article, Options for an EU regime on intra-Community transfers of defence goods (page 51 to 88), is a researcher’s assessment of the coming Directive.
Mölling explores the dilemma of national governments caught between economic-industrial challenges and security concerns. He sets out to show the relevance of an intra-EU transfer regime for the European Defence Equipment Market (EDEM), to offer criteria for the viability and efficiency of a potential regime and to evaluate the main options for an intra-European transfer regime for defence goods.
Against the background of fragmented defence markets and national procurement policies, Mölling concludes that the current situation serves neither economic interests nor the security interests of the European defence sector.
The article evaluates the components necessary for a functioning intra-Community transfer system, and it concludes that it is time for the member states to start offering solutions.
Mölling’s analysis is well worth reading.
Ralf Grahn
The publication is available at www.iss.europa.eu and the individual contributions are:
Daniel Keohane: Introduction – Towards a European Defence Market
Erkki Aalto: Interpretations of Article 296
Christian Mölling: Options for an EU regime on intra-Community transfers of defence goods
Sophie de Vaucorbeil: The changing transatlantic defence market
***
Defence transfers
The publication of the EUISS report roughly coincided with the adoption of the new Defence Transfers Directive by the European Parliament.
Christian Mölling’s article, Options for an EU regime on intra-Community transfers of defence goods (page 51 to 88), is a researcher’s assessment of the coming Directive.
Mölling explores the dilemma of national governments caught between economic-industrial challenges and security concerns. He sets out to show the relevance of an intra-EU transfer regime for the European Defence Equipment Market (EDEM), to offer criteria for the viability and efficiency of a potential regime and to evaluate the main options for an intra-European transfer regime for defence goods.
Against the background of fragmented defence markets and national procurement policies, Mölling concludes that the current situation serves neither economic interests nor the security interests of the European defence sector.
The article evaluates the components necessary for a functioning intra-Community transfer system, and it concludes that it is time for the member states to start offering solutions.
Mölling’s analysis is well worth reading.
Ralf Grahn
Bloggingportal EU
The launch of Bloggingportal.eu means that you can find (already) 281 blogs related to the European Union in one spot:
http://www.bloggingportal.eu/reader
Alternatively, you can subscribe to the RSS feeds in your reader.
The home page offers fresh and interesting posts, selected by voluntary editors.
Posts is where you go if you want to check all the aggregated posts of the latest 24 hours.
Topics presents a choice of about thirty broad themes and more limited subheadings, if you want to approach the EU blogosphere thematically.
Blogs opens up the EU blog universe, in categories like Journalists, Individuals, MEPs / MPs / Political parties etc.
Contribute offers the opportunity to add a suitable article or to propose a new blog.
***
Bloggingportal.eu strives to be multilingual fraternity and sorority, so do not hesitate to propose your own or someone else’s blog in another language than English.
There were language buttons, which kept appearing and disappearing in my reader (IE7) and the language choices (# or +) seemed a bit obscure, but perhaps these questions will be sorted out when Bloggingportal.eu moves beyond the beta stage.
***
Press releases, official portals and news items are invaluable for anyone who follows European politics, economics or law, but blogs are where these issues are discussed and debated freely.
With its broad range of opinions and interests, Bloggingportal.eu is the source on European Union debate for every EU citizen.
***
Blogginportal.eu is an impressive venture, especially given that it has been created and is maintained on a voluntary basis.
If I were in the shoes of the City of Aachen, I would seriously consider Bloggingportal.eu for the next Karlspreis (Charlemagne Prize) for this most Worth(y) contribution in the service of European understanding and common endeavour.
And potential sponsors, take note.
Ralf Grahn
http://www.bloggingportal.eu/reader
Alternatively, you can subscribe to the RSS feeds in your reader.
The home page offers fresh and interesting posts, selected by voluntary editors.
Posts is where you go if you want to check all the aggregated posts of the latest 24 hours.
Topics presents a choice of about thirty broad themes and more limited subheadings, if you want to approach the EU blogosphere thematically.
Blogs opens up the EU blog universe, in categories like Journalists, Individuals, MEPs / MPs / Political parties etc.
Contribute offers the opportunity to add a suitable article or to propose a new blog.
***
Bloggingportal.eu strives to be multilingual fraternity and sorority, so do not hesitate to propose your own or someone else’s blog in another language than English.
There were language buttons, which kept appearing and disappearing in my reader (IE7) and the language choices (# or +) seemed a bit obscure, but perhaps these questions will be sorted out when Bloggingportal.eu moves beyond the beta stage.
***
Press releases, official portals and news items are invaluable for anyone who follows European politics, economics or law, but blogs are where these issues are discussed and debated freely.
With its broad range of opinions and interests, Bloggingportal.eu is the source on European Union debate for every EU citizen.
***
Blogginportal.eu is an impressive venture, especially given that it has been created and is maintained on a voluntary basis.
If I were in the shoes of the City of Aachen, I would seriously consider Bloggingportal.eu for the next Karlspreis (Charlemagne Prize) for this most Worth(y) contribution in the service of European understanding and common endeavour.
And potential sponsors, take note.
Ralf Grahn
Monday, 26 January 2009
Åland: Lisbon Treaty
If deliberation is part of democracy, the Åland Parliament belongs to a European regional master class. Thirteen months have passed since the signing of the Treaty of Lisbon, nine months since the President of Finland Tarja Halonen formally proposed approval of the amending treaty to the regional parliament.
The Finnish Parliament approved the Lisbon Treaty in June 2008, and the ratification instrument has been deposited in Rome. Even latecomer Sweden has managed to ratify the new EU treaties.
In other words, if the Lisbon Treaty enters into force, it will bind Finland and neighbouring Sweden, Estonia, Latvia, Lithuania and Denmark, but it is still unclear if it will apply to Åland in between (to the extent that questions are within the remit of the autonomy).
In the Åland Islands the matter remains at the committee stage. No committee report has been published and it is impossible to get an answer as to when this might happen or when the plenary might make a decision either for or against approval of the Lisbon Treaty.
Ten out of thirty local legislators are enough for a negative outcome, which would lead to a highly interesting situation.
***
Gibraltar seems to be in the same category. I have been unable to uncover information about if and when the local Parliament might deal with the Lisbon Treaty, but I would be grateful if someone has information to offer the readers of this blog.
In the member state league, the Czech Council Presidency, Polish President Lech Kaczynski and the Irish voters are still among the political stumbling blocks, whereas the German Constitutional Court has at least announced two days for hearings a fortnight from now.
***
The unanimous conclusion and ratification of treaties has proven to be highly rewarding for obstructionists. They have created a Europe in their image.
Ralf Grahn
The Finnish Parliament approved the Lisbon Treaty in June 2008, and the ratification instrument has been deposited in Rome. Even latecomer Sweden has managed to ratify the new EU treaties.
In other words, if the Lisbon Treaty enters into force, it will bind Finland and neighbouring Sweden, Estonia, Latvia, Lithuania and Denmark, but it is still unclear if it will apply to Åland in between (to the extent that questions are within the remit of the autonomy).
In the Åland Islands the matter remains at the committee stage. No committee report has been published and it is impossible to get an answer as to when this might happen or when the plenary might make a decision either for or against approval of the Lisbon Treaty.
Ten out of thirty local legislators are enough for a negative outcome, which would lead to a highly interesting situation.
***
Gibraltar seems to be in the same category. I have been unable to uncover information about if and when the local Parliament might deal with the Lisbon Treaty, but I would be grateful if someone has information to offer the readers of this blog.
In the member state league, the Czech Council Presidency, Polish President Lech Kaczynski and the Irish voters are still among the political stumbling blocks, whereas the German Constitutional Court has at least announced two days for hearings a fortnight from now.
***
The unanimous conclusion and ratification of treaties has proven to be highly rewarding for obstructionists. They have created a Europe in their image.
Ralf Grahn
Future EU policy: Finland
The Government of Finland hosts a seminar on 2 February 2008 about future Finnish EU policy.
The report being drafted is a policy paper addressed to the Parliament. At the conclusion of the debate on a government report, the report shall be referred to a Committee for preparation, unless the Parliament decides to revert to the agenda without such referral. After the Committee has considered the government report, it shall in its report propose a formula for the Parliament’s opinion on the government report; the Parliament shall decide the final content of the formula and revert to the agenda.
Here is the text of the Government’s press release:
Government Communications Unit
26.1.2009 12.19
Broad-based seminar to consider Finland’s future EU policy
Prime Minister Matti Vanhanen has convened a seminar to discuss the vision for Finland’s EU policy on Monday, 2 February. The aim of the seminar is to map out priorities for EU policy and support the preparation of the Government report on EU policy currently being drafted.
The seminar ‘Vision for Finland’s EU policy in the 2010s’ to be held at Finlandia Hall will be attended by some 300 participants representing NGOs, interest groups, parties, administration and the media.
Prime Minister Vanhanen will address the seminar with an opening speech and a conclusion of the discussions at the end of the day. All participants have been asked to determine three priorities for Finland’s EU policy in the 2010s. A summary of the results of the advance enquiry will be heard at the seminar.
Two themes have been chosen to provoke discussion. Presentations on the internal strength and efficiency of the Union will be held by Chairman of the Finnish Social Democratic Party Jutta Urpilainen, President of the Finnish Confederation of Professionals STTK Mikko Mäenpää and Minister for Foreign Affairs Aleksander Stubb. The theme ‘EU as a global actor’ will be addressed by President Martti Ahtisaari, Member of the European Commission Olli Rehn and Vice-Chair of the Reflection Group on EU’s future Jorma Ollila.
The entire seminar will be filmed. The webcast will be available after the seminar on the Government website at www.valtioneuvosto.fi.
Further information: Jukka Salovaara, State Under-Secretary for EU Affairs, Government Secretariat for EU Affairs, tel. +358 9 1602 2182 and Mikko Norros, Chief Communications Specialist, Government Communications Unit, tel. +358 9 1602 4008
***
Source: Government press release Press release 24/2009 (in English):
http://www.valtioneuvosto.fi/ajankohtaista/tiedotteet/tiedote/fi.jsp?oid=251975
The press release is also available in Finnish and Swedish.
Ralf Grahn
The report being drafted is a policy paper addressed to the Parliament. At the conclusion of the debate on a government report, the report shall be referred to a Committee for preparation, unless the Parliament decides to revert to the agenda without such referral. After the Committee has considered the government report, it shall in its report propose a formula for the Parliament’s opinion on the government report; the Parliament shall decide the final content of the formula and revert to the agenda.
Here is the text of the Government’s press release:
Government Communications Unit
26.1.2009 12.19
Broad-based seminar to consider Finland’s future EU policy
Prime Minister Matti Vanhanen has convened a seminar to discuss the vision for Finland’s EU policy on Monday, 2 February. The aim of the seminar is to map out priorities for EU policy and support the preparation of the Government report on EU policy currently being drafted.
The seminar ‘Vision for Finland’s EU policy in the 2010s’ to be held at Finlandia Hall will be attended by some 300 participants representing NGOs, interest groups, parties, administration and the media.
Prime Minister Vanhanen will address the seminar with an opening speech and a conclusion of the discussions at the end of the day. All participants have been asked to determine three priorities for Finland’s EU policy in the 2010s. A summary of the results of the advance enquiry will be heard at the seminar.
Two themes have been chosen to provoke discussion. Presentations on the internal strength and efficiency of the Union will be held by Chairman of the Finnish Social Democratic Party Jutta Urpilainen, President of the Finnish Confederation of Professionals STTK Mikko Mäenpää and Minister for Foreign Affairs Aleksander Stubb. The theme ‘EU as a global actor’ will be addressed by President Martti Ahtisaari, Member of the European Commission Olli Rehn and Vice-Chair of the Reflection Group on EU’s future Jorma Ollila.
The entire seminar will be filmed. The webcast will be available after the seminar on the Government website at www.valtioneuvosto.fi.
Further information: Jukka Salovaara, State Under-Secretary for EU Affairs, Government Secretariat for EU Affairs, tel. +358 9 1602 2182 and Mikko Norros, Chief Communications Specialist, Government Communications Unit, tel. +358 9 1602 4008
***
Source: Government press release Press release 24/2009 (in English):
http://www.valtioneuvosto.fi/ajankohtaista/tiedotteet/tiedote/fi.jsp?oid=251975
The press release is also available in Finnish and Swedish.
Ralf Grahn
European Union: Greenland
In 1979 Greenland became largely autonomous (hjemmestyre) and in 1982 a referendum showed that a majority of the population wanted to secede from the European Communities.
Denmark as the member state responsible proposed changing Greenland’s status. This led to amendments of the treaty, in force from 1 January 1985.
The Greenland Treaty, officially the Treaty amending, with regard to Greenland, the Treaties establishing the European Communities, published OJ 1.2.1985 L 29/1
The Official Journal from 1985 is not available in electronic form and the Eur-Lex web page with treaties does not offer the Greenland Treaty in a readable format, so here is the Greenland Treaty together with the Greenland Protocol as originally published, courtesy of the Greenland Representation to the European Union:
http://eu.nanoq.gl/Emner/EuGl/~/media/419EF30F356645048639049D197273D3.ashx
***
Current treaty
Greenland is the only territory to have voted for secession, but Greenland is not a member of the European Community (European Union). Denmark still is, so what happened was that the territorial scope of primary and secondary Community legislation was reduced.
This resulted in special arrangements with the European Community.
Greenland is mentioned among the non-European associated countries and territories (OCTs) in Annex II.
However, the applicability of the OCT provisions is subject to the so called Greenland Protocol, as laid down in Article 188 of the Treaty establishing the European Community (TEC):
Article 188 TEC
The provisions of Articles 182 to 187 shall apply to Greenland, subject to the specific provisions for Greenland set out in the Protocol on special arrangements for Greenland, annexed to this Treaty.
***
TFEU consolidated
The Lisbon Treaty does not change the substance with regard to Greenland. In the Treaty on the Functioning of the European Union (TFEU) the article on association would be 204:
(PART FOUR
ASSOCIATION OF THE OVERSEAS COUNTRIES AND TERRITORIES)
Article 204 TFEU
(ex Article 188 TEC)
The provisions of Articles 198 to 203 shall apply to Greenland, subject to the specific provisions for Greenland set out in the Protocol on special arrangements for Greenland, annexed to the Treaties.
***
Current partnership
The relations between Greenland and the European Union rested on the principles of the Greenland Protocol and agreements about fishing rights, but from the beginning of 2007 the relations have been broadened.
The perspectives and objectives are set out in Joint declaration by the European Community, on the one hand, and the Home Rule Government of Greenland and the Government of Denmark, on the other, on partnership between the European Community and Greenland, published OJEU 29.7.2006 L 208/32.
Fisheries Partnership Agreement
The Council Decision and the fisheries agreement form the traditional pillar of these relations, here in Corrigendum to Council Decision 2006/1006/EC of 21 December 2006 on the conclusion of the Agreement in the form of an Exchange of Letters relating to the provisional application of the Fisheries Partnership Agreement between the European Community, on the one hand, and the Government of Denmark and the Home Rule Government of Greenland, on the other, published OJEU 2.2.2007 L 27/15.
Council Regulation (EC) No 753/2007 of 28 June 2007 on the conclusion of the Fisheries Partnership Agreement between the European Community on the one hand, and the Government of Denmark and the Home Rule Government of Greenland, on the other hand, published OJEU 30.6.2007 L 172/1.
Other areas of cooperation
New areas of cooperation are included in Council Decision 2006/526/EC of 17 July 2006 on relations between the European Community on the one hand, and Greenland and the Kingdom of Denmark on the other, published OJEU 29.7.2006 L 208/28.
Commission Regulation (EC) No 439/2007 of 20 April 2007 implementing Council Decision 2006/526/EC on relations between the European Community on the one hand, and Greenland and the Kingdom of Denmark on the other, published OJEU 21.4.2007 L 104/20.
***
Greenland’s future
Greenland’s autonomy has been extended gradually. A joint Committee of Greenland and Denmark has produced a concrete proposal for even wider autonomy (selvstyre). On 25 November 2008 more than 75 per cent of the Greenland voters supported the plan.
For more information on current affairs and Greenland’s future, see Nanoq (Greenland Home Rule):
http://uk.nanoq.gl/
EU and Greenland
Greenland’s Representation to the EU offers helpful pages on EU and Greenland, OCTs and Greenland in General:
http://eu.nanoq.gl/
Ralf Grahn
Denmark as the member state responsible proposed changing Greenland’s status. This led to amendments of the treaty, in force from 1 January 1985.
The Greenland Treaty, officially the Treaty amending, with regard to Greenland, the Treaties establishing the European Communities, published OJ 1.2.1985 L 29/1
The Official Journal from 1985 is not available in electronic form and the Eur-Lex web page with treaties does not offer the Greenland Treaty in a readable format, so here is the Greenland Treaty together with the Greenland Protocol as originally published, courtesy of the Greenland Representation to the European Union:
http://eu.nanoq.gl/Emner/EuGl/~/media/419EF30F356645048639049D197273D3.ashx
***
Current treaty
Greenland is the only territory to have voted for secession, but Greenland is not a member of the European Community (European Union). Denmark still is, so what happened was that the territorial scope of primary and secondary Community legislation was reduced.
This resulted in special arrangements with the European Community.
Greenland is mentioned among the non-European associated countries and territories (OCTs) in Annex II.
However, the applicability of the OCT provisions is subject to the so called Greenland Protocol, as laid down in Article 188 of the Treaty establishing the European Community (TEC):
Article 188 TEC
The provisions of Articles 182 to 187 shall apply to Greenland, subject to the specific provisions for Greenland set out in the Protocol on special arrangements for Greenland, annexed to this Treaty.
***
TFEU consolidated
The Lisbon Treaty does not change the substance with regard to Greenland. In the Treaty on the Functioning of the European Union (TFEU) the article on association would be 204:
(PART FOUR
ASSOCIATION OF THE OVERSEAS COUNTRIES AND TERRITORIES)
Article 204 TFEU
(ex Article 188 TEC)
The provisions of Articles 198 to 203 shall apply to Greenland, subject to the specific provisions for Greenland set out in the Protocol on special arrangements for Greenland, annexed to the Treaties.
***
Current partnership
The relations between Greenland and the European Union rested on the principles of the Greenland Protocol and agreements about fishing rights, but from the beginning of 2007 the relations have been broadened.
The perspectives and objectives are set out in Joint declaration by the European Community, on the one hand, and the Home Rule Government of Greenland and the Government of Denmark, on the other, on partnership between the European Community and Greenland, published OJEU 29.7.2006 L 208/32.
Fisheries Partnership Agreement
The Council Decision and the fisheries agreement form the traditional pillar of these relations, here in Corrigendum to Council Decision 2006/1006/EC of 21 December 2006 on the conclusion of the Agreement in the form of an Exchange of Letters relating to the provisional application of the Fisheries Partnership Agreement between the European Community, on the one hand, and the Government of Denmark and the Home Rule Government of Greenland, on the other, published OJEU 2.2.2007 L 27/15.
Council Regulation (EC) No 753/2007 of 28 June 2007 on the conclusion of the Fisheries Partnership Agreement between the European Community on the one hand, and the Government of Denmark and the Home Rule Government of Greenland, on the other hand, published OJEU 30.6.2007 L 172/1.
Other areas of cooperation
New areas of cooperation are included in Council Decision 2006/526/EC of 17 July 2006 on relations between the European Community on the one hand, and Greenland and the Kingdom of Denmark on the other, published OJEU 29.7.2006 L 208/28.
Commission Regulation (EC) No 439/2007 of 20 April 2007 implementing Council Decision 2006/526/EC on relations between the European Community on the one hand, and Greenland and the Kingdom of Denmark on the other, published OJEU 21.4.2007 L 104/20.
***
Greenland’s future
Greenland’s autonomy has been extended gradually. A joint Committee of Greenland and Denmark has produced a concrete proposal for even wider autonomy (selvstyre). On 25 November 2008 more than 75 per cent of the Greenland voters supported the plan.
For more information on current affairs and Greenland’s future, see Nanoq (Greenland Home Rule):
http://uk.nanoq.gl/
EU and Greenland
Greenland’s Representation to the EU offers helpful pages on EU and Greenland, OCTs and Greenland in General:
http://eu.nanoq.gl/
Ralf Grahn
Sunday, 25 January 2009
EU Law: Overseas Association Decision
The detailed rules and procedures for the association of the non-European countries and territories are to be laid down by the Council unanimously, based on experiences and treaty principles. Article 187 of the Treaty establishing the European Community (TEC) is the legal base for these rules:
Article 187 TEC
The Council, acting unanimously, shall, on the basis of the experience acquired under the association of the countries and territories with the Community and of the principles set out in this Treaty, lay down provisions as regards the detailed rules and the procedure for the association of the countries and territories with the Community.
***
Original ToL
Article 2, point 153 of the original Treaty of Lisbon amends Article 187 TEC:
153) In Article 187, the words ‘acting unanimously’ shall be replaced by ‘acting unanimously on a proposal from the Commission’ and the following sentence shall be added at the end of the Article:
‘Where the provisions in question are adopted by the Council in accordance with a special legislative procedure, it shall act unanimously on a proposal from the Commission and after consulting the European Parliament.’.
***
In practice, the decisions have been taken on proposals by the Commission, but the Lisbon Treaty makes it mandatory. The addition of consulting the European Parliament on provisions in accordance with a special legislative procedure was in line with Article III-291 of the Constitutional Treaty.
***
TFEU consolidated
After the amendments Article 203 of the Treaty on the Functioning of the European Union (TFEU) looks like this, published OJEU 9.5.2008 C 115/139:
(PART FOUR
ASSOCIATION OF THE OVERSEAS COUNTRIES AND TERRITORIES)
Article 203 TFEU
(ex Article 187 TEC)
The Council, acting unanimously on a proposal from the Commission, shall, on the basis of the experience acquired under the association of the countries and territories with the Union and of the principles set out in the Treaties, lay down provisions as regards the detailed rules and the procedure for the association of the countries and territories with the Union. Where the provisions in question are adopted by the Council in accordance with a special legislative procedure, it shall act unanimously on a proposal from the Commission and after consulting the European Parliament.
***
Overseas Association Decision
The Overseas Association Decision, officially Council Decision 2001/822/EC of 27 November 2001 on the association of the overseas countries and territories with the European Community
(‘Overseas Association Decision’), published OJ 30.11.2001 L 314/1, has been amended. The consolidated version (of 26 April 2007) is available here:
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CONSLEG:2001D0822:20070426:EN:PDF
Article 187 TEC is the legal base for this decision ‘sui generis’. Articles 182 to 186 TEC (and treaty principles in general) form the framework for the detailed provisions of the Overseas Association Decision.
The Overseas Association Decision has been prolonged to be in force until 31 December 2013, which corresponds with the EU’s current financial perspective (long term budget) and the Tenth (intergovernmental) European Development Fund (EDF).
Article 1 of the Overseas Association Decision reiterates the purpose, objectives and principles of the association between the non-European (overseas) countries and territories (OCTs), which have special relations with Denmark, France, the Netherlands and the United Kingdom:
Article 1
Purpose, objectives and principles
1. The association of the OCTs with the Community, hereinafter referred to as the ‘OCT-EC Association’, shall have as its basis the purpose set out in Article 182 of the Treaty, namely to promote the economic and social development of the OCTs and to establish close economic relations between them and the Community as a whole.
It shall pursue the objectives laid down in Article 183 of the Treaty in accordance with the principles set out in Articles 184 to 188 of the Treaty by focusing on the reduction, prevention and, eventually, eradication of poverty and on sustainable development and gradual integration into the regional and world economies.
2. The association relates to the OCTs listed in Annex I A.
3. In accordance with Article 188 of the Treaty, this Decision shall apply to Greenland subject to the specific provisions set out in the Protocol on the special arrangements for Greenland annexed to the Treaty.
***
Main objectives
Earlier blog posts have looked at the individual treaty provisions referred to. The condensed view of the objectives is (paragraph 1):
1. Poverty reduction
2. Sustainable development and gradual integration into the regional and world economies.
***
Associated OCTs
The OCTs are listed in Annex II of the Treaty establishing the European Community (TEC). The arrangements for association are not applied to Bermuda in accordance with the wishes of the Government of Bermuda (Recital 22).
Therefore, Annex I A to the Overseas Association Decision lists the following OCTs (Article 1(2)):
ANNEX I A
LIST OF THE COUNTRIES AND TERRITORIES (OCTs) REFERRED TO IN ARTICLE 1
— Greenland,
— New Caledonia and Dependencies,
— French Polynesia,
— French Southern and Antarctic Territories,
— Wallis and Futuna Islands,
— Mayotte,
— St Pierre and Miquelon,
— Aruba,
— Netherlands Antilles:
· Bonaire,
· Curaçao,
· Saba,
· Saint Eustatius,
· Saint Martin (Sint Maarten),
— Anguilla,
— Cayman Islands,
— Falkland Islands,
— South Georgia and the South Sandwich Islands,
— Montserrat,
— Pitcairn,
— Saint Helena, Ascension Island, Tristan da Cunha,
— British Antarctic Territory,
— British Indian Ocean Territory,
— Turks and Caicos Islands,
— British Virgin Islands.
***
Greenland
Greenland is a special case. According to Article 188 TEC, Articles 182 to 187 TEC apply to Greenland, subject to the specific provisions for Greenland set out in the Protocol on special arrangements for Greenland, annexed to the treaty.
Article 1(4) of the Overseas Association Decision reiterates these principles.
***
Overseas Association Decision overview
The structure and the contents of the Overseas Association Decision at a glance by looking at the headlines:
PART ONE
GENERAL PROVISIONS OF THE ASSOCIATION OF THE OCTs WITH THE COMMUNITY
C h a p t e r 1 General provisions
Article 1 Purpose, objectives and principles
Article 2 Basic elements
Article 3 The least-developed OCTs
C h a p t e r 2 Actors of cooperation in the OCTs
Article 4 Principles
Article 5 The different actors involved
Article 6 Responsibilities of the non-governmental actors
C h a p t e r 3 Principles and Procedures of the OCT-EC Partnership
Article 7 Dialogue and Partnership
Article 8 ACP-EU Joint Parliamentary Assembly
Article 9 Management
PART TWO THE AREAS OF OCT-EC COOPERATION
Article 10 Areas of cooperation
Article 11 Productive sectors
Article 12 Trade development
Article 13 Trade in services
Article 14 Trade-related areas
Article 15 Social sectors
Article 16 Regional cooperation and integration
Article 17 Cultural and social cooperation
PART THREE INSTRUMENTS OF OCT-EC COOPERATION
TITLE I DEVELOPMENT FINANCE COOPERATION
C h a p t e r 1 General provisions
Article 18 Objectives
Article 19 Principles
Article 20 Single Programming Documents
Article 21 Scope of financing
Article 22 Eligibility for financing
Article 23 Programming and implementation
Article 24 The EDF-OCT Committee
C h a p t e r 2 Resources made available to the OCTs
Article 25 Financial assistance
C h a p t e r 3 Private Sector Investment Support
Article 26 Investment promotion
Article 27 Investment support and financing
C h a p t e r 4 Additional support in the event of fluctuations in export earnings
Article 28 Additional support
C h a p t e r 5 Support for other actors of cooperation
Article 29 Objectives and financing
C h a p t e r 6 Support for humanitarian and emergency aid
Article 30 Objectives and means
C h a p t e r 7 Implementation Procedures
Article 31 Technical assistance
Article 32 Financial control
C h a p t e r 8 Transition from previous European Development Funds (EDFs) to the 9th EDF
Article 33 Implementing the previous EDFs and the transitional phase
Article 33a
TITLE II ECONOMIC AND TRADE COOPERATION
Article 34 Objective
C h a p t e r 1 Arrangements for trade in goods
Article 35 Free access for originating products
Article 36 Transhipment of non-originating products in free circulation in the OCTs
Article 37 Committee procedure
Article 38 Quantitative restrictions and measures having equivalent effect
Article 39 Waste
Article 40 Measures adopted by the OCTs
Article 41 Surveillance clause
Article 42 Safeguard measures
Article 43 Committee procedure
C h a p t e r 2 Trade in services and rules of establishment
Article 44 General objective
Article 45 General principles of establishment and the provision of services
Article 46 Maritime transport
C h a p t e r 3 Trade-related areas
Article 47 Current payments and capital movements
Article 48 Competition policies
Article 49 Protection of intellectual property rights
Article 50 Standardisation and certification
Article 51 Trade and the environment
Article 52 Trade and labour standards
Article 53 Consumer policy and consumer health protection
Article 54 Prohibition of disguised protectionist measures
C h a p t e r 4 Monetary and tax matters
Article 55 Tax carve-out clause
Article 56 Tax and customs arrangements for Community-funded contracts
C h a p t e r 5 Vocational training, eligibility for Community programmes and other provisions
Article 57 Vocational training
Article 58 Programmes open to the OCTs
Article 59 Euro-Info Correspondence Centres (EICC)
Article 60 CDE and CTA
PART FOUR FINAL PROVISIONS
Article 61 Change of status
Article 62 Review
Article 63 Entry into force
Article 64 Publication
***
Implementing Commission Regulation
Implementing rules are set out in Commission Regulation (EC) No 2304/2002 of 20 December 2002 implementing Council Decision 2001/822/EC on the association of the overseas countries and territories with the European Community ('Overseas Association Decision'), published OJ 21.12.2002 L 348/82. The Implementing Regulation has been amended, so here is a link to the consolidated version (of 5 December 2007):
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CONSLEG:2002R2304:20071205:EN:PDF
The subject matter of the Implementing Regulation is:
Article 1
Subject matter
This Regulation lays down the procedures for the programming, implementation and control of the Community financial assistance to the overseas countries and territories (OCTs) managed by the Commission under the Tenth European Development Fund (EDF), in accordance with the provisions of the Overseas Association Decision and the Financial Regulation applicable to the 10th EDF.
***
Financing OCT association
Council Decision 2007/549/EC of 16 July 2007 modifying the Internal Agreement of 17 July 2006 between the Representatives of the Governments of the Member States, meeting within the Council, on the financing of Community aid under the multiannual financial framework for the period 2008-2013 in accordance with the ACP-EC Partnership Agreement and the allocation of the financial assistance for the Overseas Countries and Territories to which part Four of the EC Treaty applies (published OJEU 3.8.2007 L 202/35), took account of the EU accession of Bulgaria and Romania and modified the Internal Agreement. It contains the references necessary for the interested reader:
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2007:202:0035:0036:EN:PDF
Ralf Grahn
Article 187 TEC
The Council, acting unanimously, shall, on the basis of the experience acquired under the association of the countries and territories with the Community and of the principles set out in this Treaty, lay down provisions as regards the detailed rules and the procedure for the association of the countries and territories with the Community.
***
Original ToL
Article 2, point 153 of the original Treaty of Lisbon amends Article 187 TEC:
153) In Article 187, the words ‘acting unanimously’ shall be replaced by ‘acting unanimously on a proposal from the Commission’ and the following sentence shall be added at the end of the Article:
‘Where the provisions in question are adopted by the Council in accordance with a special legislative procedure, it shall act unanimously on a proposal from the Commission and after consulting the European Parliament.’.
***
In practice, the decisions have been taken on proposals by the Commission, but the Lisbon Treaty makes it mandatory. The addition of consulting the European Parliament on provisions in accordance with a special legislative procedure was in line with Article III-291 of the Constitutional Treaty.
***
TFEU consolidated
After the amendments Article 203 of the Treaty on the Functioning of the European Union (TFEU) looks like this, published OJEU 9.5.2008 C 115/139:
(PART FOUR
ASSOCIATION OF THE OVERSEAS COUNTRIES AND TERRITORIES)
Article 203 TFEU
(ex Article 187 TEC)
The Council, acting unanimously on a proposal from the Commission, shall, on the basis of the experience acquired under the association of the countries and territories with the Union and of the principles set out in the Treaties, lay down provisions as regards the detailed rules and the procedure for the association of the countries and territories with the Union. Where the provisions in question are adopted by the Council in accordance with a special legislative procedure, it shall act unanimously on a proposal from the Commission and after consulting the European Parliament.
***
Overseas Association Decision
The Overseas Association Decision, officially Council Decision 2001/822/EC of 27 November 2001 on the association of the overseas countries and territories with the European Community
(‘Overseas Association Decision’), published OJ 30.11.2001 L 314/1, has been amended. The consolidated version (of 26 April 2007) is available here:
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CONSLEG:2001D0822:20070426:EN:PDF
Article 187 TEC is the legal base for this decision ‘sui generis’. Articles 182 to 186 TEC (and treaty principles in general) form the framework for the detailed provisions of the Overseas Association Decision.
The Overseas Association Decision has been prolonged to be in force until 31 December 2013, which corresponds with the EU’s current financial perspective (long term budget) and the Tenth (intergovernmental) European Development Fund (EDF).
Article 1 of the Overseas Association Decision reiterates the purpose, objectives and principles of the association between the non-European (overseas) countries and territories (OCTs), which have special relations with Denmark, France, the Netherlands and the United Kingdom:
Article 1
Purpose, objectives and principles
1. The association of the OCTs with the Community, hereinafter referred to as the ‘OCT-EC Association’, shall have as its basis the purpose set out in Article 182 of the Treaty, namely to promote the economic and social development of the OCTs and to establish close economic relations between them and the Community as a whole.
It shall pursue the objectives laid down in Article 183 of the Treaty in accordance with the principles set out in Articles 184 to 188 of the Treaty by focusing on the reduction, prevention and, eventually, eradication of poverty and on sustainable development and gradual integration into the regional and world economies.
2. The association relates to the OCTs listed in Annex I A.
3. In accordance with Article 188 of the Treaty, this Decision shall apply to Greenland subject to the specific provisions set out in the Protocol on the special arrangements for Greenland annexed to the Treaty.
***
Main objectives
Earlier blog posts have looked at the individual treaty provisions referred to. The condensed view of the objectives is (paragraph 1):
1. Poverty reduction
2. Sustainable development and gradual integration into the regional and world economies.
***
Associated OCTs
The OCTs are listed in Annex II of the Treaty establishing the European Community (TEC). The arrangements for association are not applied to Bermuda in accordance with the wishes of the Government of Bermuda (Recital 22).
Therefore, Annex I A to the Overseas Association Decision lists the following OCTs (Article 1(2)):
ANNEX I A
LIST OF THE COUNTRIES AND TERRITORIES (OCTs) REFERRED TO IN ARTICLE 1
— Greenland,
— New Caledonia and Dependencies,
— French Polynesia,
— French Southern and Antarctic Territories,
— Wallis and Futuna Islands,
— Mayotte,
— St Pierre and Miquelon,
— Aruba,
— Netherlands Antilles:
· Bonaire,
· Curaçao,
· Saba,
· Saint Eustatius,
· Saint Martin (Sint Maarten),
— Anguilla,
— Cayman Islands,
— Falkland Islands,
— South Georgia and the South Sandwich Islands,
— Montserrat,
— Pitcairn,
— Saint Helena, Ascension Island, Tristan da Cunha,
— British Antarctic Territory,
— British Indian Ocean Territory,
— Turks and Caicos Islands,
— British Virgin Islands.
***
Greenland
Greenland is a special case. According to Article 188 TEC, Articles 182 to 187 TEC apply to Greenland, subject to the specific provisions for Greenland set out in the Protocol on special arrangements for Greenland, annexed to the treaty.
Article 1(4) of the Overseas Association Decision reiterates these principles.
***
Overseas Association Decision overview
The structure and the contents of the Overseas Association Decision at a glance by looking at the headlines:
PART ONE
GENERAL PROVISIONS OF THE ASSOCIATION OF THE OCTs WITH THE COMMUNITY
C h a p t e r 1 General provisions
Article 1 Purpose, objectives and principles
Article 2 Basic elements
Article 3 The least-developed OCTs
C h a p t e r 2 Actors of cooperation in the OCTs
Article 4 Principles
Article 5 The different actors involved
Article 6 Responsibilities of the non-governmental actors
C h a p t e r 3 Principles and Procedures of the OCT-EC Partnership
Article 7 Dialogue and Partnership
Article 8 ACP-EU Joint Parliamentary Assembly
Article 9 Management
PART TWO THE AREAS OF OCT-EC COOPERATION
Article 10 Areas of cooperation
Article 11 Productive sectors
Article 12 Trade development
Article 13 Trade in services
Article 14 Trade-related areas
Article 15 Social sectors
Article 16 Regional cooperation and integration
Article 17 Cultural and social cooperation
PART THREE INSTRUMENTS OF OCT-EC COOPERATION
TITLE I DEVELOPMENT FINANCE COOPERATION
C h a p t e r 1 General provisions
Article 18 Objectives
Article 19 Principles
Article 20 Single Programming Documents
Article 21 Scope of financing
Article 22 Eligibility for financing
Article 23 Programming and implementation
Article 24 The EDF-OCT Committee
C h a p t e r 2 Resources made available to the OCTs
Article 25 Financial assistance
C h a p t e r 3 Private Sector Investment Support
Article 26 Investment promotion
Article 27 Investment support and financing
C h a p t e r 4 Additional support in the event of fluctuations in export earnings
Article 28 Additional support
C h a p t e r 5 Support for other actors of cooperation
Article 29 Objectives and financing
C h a p t e r 6 Support for humanitarian and emergency aid
Article 30 Objectives and means
C h a p t e r 7 Implementation Procedures
Article 31 Technical assistance
Article 32 Financial control
C h a p t e r 8 Transition from previous European Development Funds (EDFs) to the 9th EDF
Article 33 Implementing the previous EDFs and the transitional phase
Article 33a
TITLE II ECONOMIC AND TRADE COOPERATION
Article 34 Objective
C h a p t e r 1 Arrangements for trade in goods
Article 35 Free access for originating products
Article 36 Transhipment of non-originating products in free circulation in the OCTs
Article 37 Committee procedure
Article 38 Quantitative restrictions and measures having equivalent effect
Article 39 Waste
Article 40 Measures adopted by the OCTs
Article 41 Surveillance clause
Article 42 Safeguard measures
Article 43 Committee procedure
C h a p t e r 2 Trade in services and rules of establishment
Article 44 General objective
Article 45 General principles of establishment and the provision of services
Article 46 Maritime transport
C h a p t e r 3 Trade-related areas
Article 47 Current payments and capital movements
Article 48 Competition policies
Article 49 Protection of intellectual property rights
Article 50 Standardisation and certification
Article 51 Trade and the environment
Article 52 Trade and labour standards
Article 53 Consumer policy and consumer health protection
Article 54 Prohibition of disguised protectionist measures
C h a p t e r 4 Monetary and tax matters
Article 55 Tax carve-out clause
Article 56 Tax and customs arrangements for Community-funded contracts
C h a p t e r 5 Vocational training, eligibility for Community programmes and other provisions
Article 57 Vocational training
Article 58 Programmes open to the OCTs
Article 59 Euro-Info Correspondence Centres (EICC)
Article 60 CDE and CTA
PART FOUR FINAL PROVISIONS
Article 61 Change of status
Article 62 Review
Article 63 Entry into force
Article 64 Publication
***
Implementing Commission Regulation
Implementing rules are set out in Commission Regulation (EC) No 2304/2002 of 20 December 2002 implementing Council Decision 2001/822/EC on the association of the overseas countries and territories with the European Community ('Overseas Association Decision'), published OJ 21.12.2002 L 348/82. The Implementing Regulation has been amended, so here is a link to the consolidated version (of 5 December 2007):
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CONSLEG:2002R2304:20071205:EN:PDF
The subject matter of the Implementing Regulation is:
Article 1
Subject matter
This Regulation lays down the procedures for the programming, implementation and control of the Community financial assistance to the overseas countries and territories (OCTs) managed by the Commission under the Tenth European Development Fund (EDF), in accordance with the provisions of the Overseas Association Decision and the Financial Regulation applicable to the 10th EDF.
***
Financing OCT association
Council Decision 2007/549/EC of 16 July 2007 modifying the Internal Agreement of 17 July 2006 between the Representatives of the Governments of the Member States, meeting within the Council, on the financing of Community aid under the multiannual financial framework for the period 2008-2013 in accordance with the ACP-EC Partnership Agreement and the allocation of the financial assistance for the Overseas Countries and Territories to which part Four of the EC Treaty applies (published OJEU 3.8.2007 L 202/35), took account of the EU accession of Bulgaria and Romania and modified the Internal Agreement. It contains the references necessary for the interested reader:
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2007:202:0035:0036:EN:PDF
Ralf Grahn
Saturday, 24 January 2009
EU freedom of movement: Overseas countries and territories
The Treaty establishing the European Community provides for the principle of free movement for workers (persons) between the associated overseas countries and territories (OCTs) and the EU member states, but to be governed by agreements requiring unanimous approval by the member states. Article 186 TEC:
Article 186 TEC
Subject to the provisions relating to public health, public security or public policy, freedom of movement within Member States for workers from the countries and territories, and within the countries and territories for workers from Member States, shall be governed by agreements to be concluded subsequently with the unanimous approval of Member States.
***
Original ToL
The original Treaty of Lisbon (ToL) contained the explicit but small amendment to the current TEC that agreements are to be replaced by legislative acts:
152) At the end of Article 186, the words ‘shall be governed by agreements to be concluded subsequently with the unanimous approval of Member States’ shall be replaced by ‘shall be regulated by acts adopted in accordance with Article 187’
***
TFEU consolidated
The unanimity requirement stands, although the procedure is described in other words, in Article 202 of the Treaty on the Functioning of the European Union (TFEU), in the consolidated Lisbon Treaty published OJEU 9.5.2008 C 115/138:
(PART FOUR
ASSOCIATION OF THE OVERSEAS COUNTRIES AND TERRITORIES)
Article 202 TFEU
(ex Article 186 TEC)
Subject to the provisions relating to public health, public security or public policy, freedom of movement within Member States for workers from the countries and territories, and within the countries and territories for workers from Member States, shall be regulated by acts adopted in accordance with Article 203.
***
Special territories generally
If you want an introduction to the geographical scope of the EU treaties and the various special territories in general, you could read the Wikipedia article Special Member State Territories and the European Union, which discusses the outermost regions, the overseas countries and territories (OCTs) we have looked at in the latest blog posts, as well as special cases (latest update 12 January 2009):
http://en.wikipedia.org/wiki/Special_member_state_territories_and_the_European_Union
***
OCTs and freedom of movement for workers
Article 17 TEC establishes EU citizenship for every person holding the nationality of a member state and Article 18 TEC, in principle, lays down the right to move and reside freely within the territory of the member states, subject to the treaty and secondary legislation. (More detail is provided by the so called Citizenship Directive 2004/38/EC for EU citizens and notably their family members, but excluding social security.)
This means that the free movement rights of OCT residents depend on their citizenship. If they are full citizens of the “mother country”, they enjoy the rights of EU citizens.
***
Green Paper
The Commission’s Green Paper on the overseas countries and territories, COM(2008) 383 final, gives the following description of the situation (page 6 and 7):
In addition, unlike with third countries, all OCT nationals are in principle European citizens in the sense of Article 17 of the EC Treaty, which states that every person holding the nationality of a Member State is a citizen of the Union. More precisely, all nationals of Greenland and the French and Dutch OCTs also have the nationality of the related Member State automatically. As from 21 May 2002, the citizens of all the British OCTs are also British citizens, but they can renounce it in favour of remaining British overseas territories citizens only and are not obliged to have a passport describing them as a British citizen. As European citizens, OCT nationals are in principle also entitled to the rights conferred by Union citizenship (as laid down in Articles 18 to 22 of the EC Treaty), such as the right to move and reside (but not work) freely within the territory of the Member States. Moreover, OCT nationals can be granted the right to vote for and participate in the election of the European Parliament, subject to the conditions defined by the related Member States in compliance with Community law. This is, for example, the case for nationals of the French OCTs.
***
Commission Staff Working Document
The Staff Working Document SEC(2008) 2067 with the Annexes, accompanying the Green Paper gave the following additional information (page 31):
It is important to recall that, though not third countries, the OCTs do not form part of the Community single market. Therefore, the related four freedoms (free movement of people, goods, services and capital) that apply within the Community do not cover the OCT-EC association, although this does not affect the rights conferred upon OCT inhabitants by citizenship of the Union within the meaning of the EC Treaty. Instead, the above-mentioned arrangements for trade in goods, establishment and the provision of services apply to trade and economic relations between the Community and the OCTs. The Overseas Association Decision also contains provisions on current payments and capital movements. Furthermore, the free movement of workers between the OCTs and the Member States is mentioned in the EC Treaty, but this issue is to be governed by agreements to be concluded subsequently with the unanimous approval of the Member States. However, given this very cumbersome procedure laid down in Article 186 of the EC Treaty, such agreements have never been adopted so far. In this respect, it should be noted that the Treaty of Lisbon of 13 December 2007 makes the regulation of the free movement of workers between the OCTs and the Member States subject to the common procedure of Article 187 of the EC Treaty for adopting the detailed rules and procedures for the OCT-EC association, which could facilitate regulation of this issue.
***
Because no agreements have been concluded between the EU member states, citizenship determines the right to move and reside freely.
Ralf Grahn
Article 186 TEC
Subject to the provisions relating to public health, public security or public policy, freedom of movement within Member States for workers from the countries and territories, and within the countries and territories for workers from Member States, shall be governed by agreements to be concluded subsequently with the unanimous approval of Member States.
***
Original ToL
The original Treaty of Lisbon (ToL) contained the explicit but small amendment to the current TEC that agreements are to be replaced by legislative acts:
152) At the end of Article 186, the words ‘shall be governed by agreements to be concluded subsequently with the unanimous approval of Member States’ shall be replaced by ‘shall be regulated by acts adopted in accordance with Article 187’
***
TFEU consolidated
The unanimity requirement stands, although the procedure is described in other words, in Article 202 of the Treaty on the Functioning of the European Union (TFEU), in the consolidated Lisbon Treaty published OJEU 9.5.2008 C 115/138:
(PART FOUR
ASSOCIATION OF THE OVERSEAS COUNTRIES AND TERRITORIES)
Article 202 TFEU
(ex Article 186 TEC)
Subject to the provisions relating to public health, public security or public policy, freedom of movement within Member States for workers from the countries and territories, and within the countries and territories for workers from Member States, shall be regulated by acts adopted in accordance with Article 203.
***
Special territories generally
If you want an introduction to the geographical scope of the EU treaties and the various special territories in general, you could read the Wikipedia article Special Member State Territories and the European Union, which discusses the outermost regions, the overseas countries and territories (OCTs) we have looked at in the latest blog posts, as well as special cases (latest update 12 January 2009):
http://en.wikipedia.org/wiki/Special_member_state_territories_and_the_European_Union
***
OCTs and freedom of movement for workers
Article 17 TEC establishes EU citizenship for every person holding the nationality of a member state and Article 18 TEC, in principle, lays down the right to move and reside freely within the territory of the member states, subject to the treaty and secondary legislation. (More detail is provided by the so called Citizenship Directive 2004/38/EC for EU citizens and notably their family members, but excluding social security.)
This means that the free movement rights of OCT residents depend on their citizenship. If they are full citizens of the “mother country”, they enjoy the rights of EU citizens.
***
Green Paper
The Commission’s Green Paper on the overseas countries and territories, COM(2008) 383 final, gives the following description of the situation (page 6 and 7):
In addition, unlike with third countries, all OCT nationals are in principle European citizens in the sense of Article 17 of the EC Treaty, which states that every person holding the nationality of a Member State is a citizen of the Union. More precisely, all nationals of Greenland and the French and Dutch OCTs also have the nationality of the related Member State automatically. As from 21 May 2002, the citizens of all the British OCTs are also British citizens, but they can renounce it in favour of remaining British overseas territories citizens only and are not obliged to have a passport describing them as a British citizen. As European citizens, OCT nationals are in principle also entitled to the rights conferred by Union citizenship (as laid down in Articles 18 to 22 of the EC Treaty), such as the right to move and reside (but not work) freely within the territory of the Member States. Moreover, OCT nationals can be granted the right to vote for and participate in the election of the European Parliament, subject to the conditions defined by the related Member States in compliance with Community law. This is, for example, the case for nationals of the French OCTs.
***
Commission Staff Working Document
The Staff Working Document SEC(2008) 2067 with the Annexes, accompanying the Green Paper gave the following additional information (page 31):
It is important to recall that, though not third countries, the OCTs do not form part of the Community single market. Therefore, the related four freedoms (free movement of people, goods, services and capital) that apply within the Community do not cover the OCT-EC association, although this does not affect the rights conferred upon OCT inhabitants by citizenship of the Union within the meaning of the EC Treaty. Instead, the above-mentioned arrangements for trade in goods, establishment and the provision of services apply to trade and economic relations between the Community and the OCTs. The Overseas Association Decision also contains provisions on current payments and capital movements. Furthermore, the free movement of workers between the OCTs and the Member States is mentioned in the EC Treaty, but this issue is to be governed by agreements to be concluded subsequently with the unanimous approval of the Member States. However, given this very cumbersome procedure laid down in Article 186 of the EC Treaty, such agreements have never been adopted so far. In this respect, it should be noted that the Treaty of Lisbon of 13 December 2007 makes the regulation of the free movement of workers between the OCTs and the Member States subject to the common procedure of Article 187 of the EC Treaty for adopting the detailed rules and procedures for the OCT-EC association, which could facilitate regulation of this issue.
***
Because no agreements have been concluded between the EU member states, citizenship determines the right to move and reside freely.
Ralf Grahn
EU trade distortions: Overseas countries and territories
Preferential treatment causes trade distortions, but the Treaty establishing the European Community (TEC) foresees remedies should the level of duties applied by an overseas associated country or territory (OCT) to goods from a third country cause deflections of trade (as they are politely called) to the detriment of an EU member state.
According to Article 185 TEC the member state in question can ask the Commission to propose a remedy:
Article 185 TEC
If the level of the duties applicable to goods from a third country on entry into a country or territory is liable, when the provisions of Article 184(1) have been applied, to cause deflections of trade to the detriment of any Member State, the latter may request the Commission to propose to the other Member States the measures needed to remedy the situation.
***
TFEU consolidated
No explicit amendment concerned Article 185 TEC, so here is the corresponding provision of the Lisbon Treaty, Article 201 of the Treaty on the Functioning of the European Union (TFEU), published OJEU 9.5.2008 C 115/138:
(PART FOUR
ASSOCIATION OF THE OVERSEAS COUNTRIES AND TERRITORIES)
Article 201 TFEU
(ex Article 185 TEC)
If the level of the duties applicable to goods from a third country on entry into a country or territory is liable, when the provisions of Article 200(1) have been applied, to cause deflections of trade to the detriment of any Member State, the latter may request the Commission to propose to the other Member States the measures needed to remedy the situation.
***
Practical value
The provision has little practical value, because these issues have been regulated through the rules of origin set out in the Overseas Association Decision 2001/822/EC, as amended and extended until 31 December 2013.
In addition to these, the reader might profit from the discussion on rules of origin in Annex IV of the Commission Staff Working Paper accompanying the Green Paper Future relations between the EU and the Overseas Countries and Territories, Brussels, 25.6.2008 SEC(2008) 2067 (page 33 to 34):
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=SEC:2008:2067:FIN:EN:PDF
Ralf Grahn
According to Article 185 TEC the member state in question can ask the Commission to propose a remedy:
Article 185 TEC
If the level of the duties applicable to goods from a third country on entry into a country or territory is liable, when the provisions of Article 184(1) have been applied, to cause deflections of trade to the detriment of any Member State, the latter may request the Commission to propose to the other Member States the measures needed to remedy the situation.
***
TFEU consolidated
No explicit amendment concerned Article 185 TEC, so here is the corresponding provision of the Lisbon Treaty, Article 201 of the Treaty on the Functioning of the European Union (TFEU), published OJEU 9.5.2008 C 115/138:
(PART FOUR
ASSOCIATION OF THE OVERSEAS COUNTRIES AND TERRITORIES)
Article 201 TFEU
(ex Article 185 TEC)
If the level of the duties applicable to goods from a third country on entry into a country or territory is liable, when the provisions of Article 200(1) have been applied, to cause deflections of trade to the detriment of any Member State, the latter may request the Commission to propose to the other Member States the measures needed to remedy the situation.
***
Practical value
The provision has little practical value, because these issues have been regulated through the rules of origin set out in the Overseas Association Decision 2001/822/EC, as amended and extended until 31 December 2013.
In addition to these, the reader might profit from the discussion on rules of origin in Annex IV of the Commission Staff Working Paper accompanying the Green Paper Future relations between the EU and the Overseas Countries and Territories, Brussels, 25.6.2008 SEC(2008) 2067 (page 33 to 34):
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=SEC:2008:2067:FIN:EN:PDF
Ralf Grahn
EU customs duties: Associated overseas countries and territories
The asymmetric relationship between the EU member states and the associated overseas countries and territories (OCTs) is illustrated by the provisions on customs duties.
Customs duties are prohibited with regard to goods imported and originating from an OCT into an EU member states (paragraph 1).
Customs duties are prohibited with regard to imports from an EU member state or another OCT into an OCT (paragraph 2), but with the sizable exception that non-discriminatory customs duties which meet thee needs of its development and industrialisation or produce revenue for its budget (fiscal nature) are allowed (paragraphs 3 and 5).
Article 25 TEC referred to comprises not only to customs duties on imports and exports, but also to charges having equivalent effect.
The current Treaty establishing the European Community (TEC) sets out the principles concerning customs duties with regard to the non-European associated countries and territories in Article 184:
Article 184 TEC
1. Customs duties on imports into the Member States of goods originating in the countries and territories shall be prohibited in conformity with the prohibition of customs duties between Member States in accordance with the provisions of this Treaty.
2. Customs duties on imports into each country or territory from Member States or from the other countries or territories shall be prohibited in accordance with the provisions of Article 25.
3. The countries and territories may, however, levy customs duties which meet the needs of their development and industrialisation or produce revenue for their budgets.
The duties referred to in the preceding subparagraph may not exceed the level of those imposed on imports of products from the Member State with which each country or territory has special relations.
4. Paragraph 2 shall not apply to countries and territories which, by reason of the particular international obligations by which they are bound, already apply a non-discriminatory customs tariff.
5. The introduction of or any change in customs duties imposed on goods imported into the countries and territories shall not, either in law or in fact, give rise to any direct or indirect discrimination between imports from the various Member States.
***
Consolidated Lisbon Treaty
Article 184 TEC underwent no specific amendments, so we move on to the consolidated version of the Treaty on the Functioning of the European Union (TFEU, where the corresponding provision is Article 200 (OJEU 9.5.2008 C 115/138):
(PART FOUR
ASSOCIATION OF THE OVERSEAS COUNTRIES AND TERRITORIES)
Article 200 TFEU
(ex Article 184 TEC)
1. Customs duties on imports into the Member States of goods originating in the countries and territories shall be prohibited in conformity with the prohibition of customs duties between Member States in accordance with the provisions of the Treaties.
2. Customs duties on imports into each country or territory from Member States or from the other countries or territories shall be prohibited in accordance with the provisions of Article 30.
3. The countries and territories may, however, levy customs duties which meet the needs of their development and industrialisation or produce revenue for their budgets.
The duties referred to in the preceding subparagraph may not exceed the level of those imposed on imports of products from the Member State with which each country or territory has special relations.
4. Paragraph 2 shall not apply to countries and territories which, by reason of the particular international obligations by which they are bound, already apply a non-discriminatory customs tariff.
5. The introduction of or any change in customs duties imposed on goods imported into the countries and territories shall not, either in law or in fact, give rise to any direct or indirect discrimination between imports from the various Member States.
***
OCT background and perspectives
The Commission’s Green Paper on future OCT relations. The Communication Future relations between the EU and the Overseas Countries and Territories, Brussels, 25.6.2008 COM(2008) 383 final, presents the existing relations between the European Union and the OCTs as well as questions about the future:
http://ec.europa.eu/development/icenter/repository/1_EN_ACT_part1_v8.pdf
***
Overview legal framework
Annex III The Overseas Association Decision of 27 November 2001 (page 28 to 31) of the Commission Staff Working Document accompanying the Green Paper Future relations between the EU and the Overseas Countries and Territories, Brussels, 25.6.2008 SEC(2008) 2067, presents a summary of legal framework ruling the relationship between the EU and the OCTs, both the development assistance aspect and the economic and trade relations:
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=SEC:2008:2067:FIN:EN:PDF
***
Trade relations overview
Annex IV Working document on the trade arrangements between the Community and the OCTs (page 32 to 38) of the Staff Working Document discusses regional integration, rules of origin, trade-related issues and transhipment.
***
Overseas Association Decision
The more exact arrangements are set out in the Overseas Association Decision 2001/822/EC, as amended and extended until 31 December 2013.
Ralf Grahn
Customs duties are prohibited with regard to goods imported and originating from an OCT into an EU member states (paragraph 1).
Customs duties are prohibited with regard to imports from an EU member state or another OCT into an OCT (paragraph 2), but with the sizable exception that non-discriminatory customs duties which meet thee needs of its development and industrialisation or produce revenue for its budget (fiscal nature) are allowed (paragraphs 3 and 5).
Article 25 TEC referred to comprises not only to customs duties on imports and exports, but also to charges having equivalent effect.
The current Treaty establishing the European Community (TEC) sets out the principles concerning customs duties with regard to the non-European associated countries and territories in Article 184:
Article 184 TEC
1. Customs duties on imports into the Member States of goods originating in the countries and territories shall be prohibited in conformity with the prohibition of customs duties between Member States in accordance with the provisions of this Treaty.
2. Customs duties on imports into each country or territory from Member States or from the other countries or territories shall be prohibited in accordance with the provisions of Article 25.
3. The countries and territories may, however, levy customs duties which meet the needs of their development and industrialisation or produce revenue for their budgets.
The duties referred to in the preceding subparagraph may not exceed the level of those imposed on imports of products from the Member State with which each country or territory has special relations.
4. Paragraph 2 shall not apply to countries and territories which, by reason of the particular international obligations by which they are bound, already apply a non-discriminatory customs tariff.
5. The introduction of or any change in customs duties imposed on goods imported into the countries and territories shall not, either in law or in fact, give rise to any direct or indirect discrimination between imports from the various Member States.
***
Consolidated Lisbon Treaty
Article 184 TEC underwent no specific amendments, so we move on to the consolidated version of the Treaty on the Functioning of the European Union (TFEU, where the corresponding provision is Article 200 (OJEU 9.5.2008 C 115/138):
(PART FOUR
ASSOCIATION OF THE OVERSEAS COUNTRIES AND TERRITORIES)
Article 200 TFEU
(ex Article 184 TEC)
1. Customs duties on imports into the Member States of goods originating in the countries and territories shall be prohibited in conformity with the prohibition of customs duties between Member States in accordance with the provisions of the Treaties.
2. Customs duties on imports into each country or territory from Member States or from the other countries or territories shall be prohibited in accordance with the provisions of Article 30.
3. The countries and territories may, however, levy customs duties which meet the needs of their development and industrialisation or produce revenue for their budgets.
The duties referred to in the preceding subparagraph may not exceed the level of those imposed on imports of products from the Member State with which each country or territory has special relations.
4. Paragraph 2 shall not apply to countries and territories which, by reason of the particular international obligations by which they are bound, already apply a non-discriminatory customs tariff.
5. The introduction of or any change in customs duties imposed on goods imported into the countries and territories shall not, either in law or in fact, give rise to any direct or indirect discrimination between imports from the various Member States.
***
OCT background and perspectives
The Commission’s Green Paper on future OCT relations. The Communication Future relations between the EU and the Overseas Countries and Territories, Brussels, 25.6.2008 COM(2008) 383 final, presents the existing relations between the European Union and the OCTs as well as questions about the future:
http://ec.europa.eu/development/icenter/repository/1_EN_ACT_part1_v8.pdf
***
Overview legal framework
Annex III The Overseas Association Decision of 27 November 2001 (page 28 to 31) of the Commission Staff Working Document accompanying the Green Paper Future relations between the EU and the Overseas Countries and Territories, Brussels, 25.6.2008 SEC(2008) 2067, presents a summary of legal framework ruling the relationship between the EU and the OCTs, both the development assistance aspect and the economic and trade relations:
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=SEC:2008:2067:FIN:EN:PDF
***
Trade relations overview
Annex IV Working document on the trade arrangements between the Community and the OCTs (page 32 to 38) of the Staff Working Document discusses regional integration, rules of origin, trade-related issues and transhipment.
***
Overseas Association Decision
The more exact arrangements are set out in the Overseas Association Decision 2001/822/EC, as amended and extended until 31 December 2013.
Ralf Grahn
Is there a European defence market?
Is there a European defence market, or are there 27 national defence markets?
The European Parliament adopted a new Defence Transfers Directive in December 2008 to harmonise the intra-Community licensing systems and a new Defence Procurement Directive in January 2009 to create a “third pillar” for public procurement alongside the general Procurement Directive 2004/18/EC and the special sectors Utilities Directive 2004/17/EC.
The intergovernmental European Defence Agency (EDA) was established by Council Joint Action
2004/551/CFSP of 12 July 2004 on the establishment of the European Defence Agency (published OJEU 17.7.2004 l 245/17) to:
· Develop defence capabilities in the field of crisis management
· Promote European armaments cooperation
· Strengthen the European defence industrial and technological base (DTIB)
· Work for the creation of an internationally competitive European defence equipment market (EDEM)
The Commission’s Defence package included a Communication on the European defence industry COM(2007) 764 final.
***
Depressing results
Despite some progress, the overall assessment is that NATO, the WEU and more recently the European Union have tried for decades to improve multinational armaments cooperation with depressingly little success.
In Towards a European Defence Market (Chaillot Paper No 113, November 2008, 126 pages), published by the European Union Institute for Security Studies (EUISS), four researchers describe the current state of affairs and the prospects for progress.
The publication is available at www.iss.europa.eu and the individual contributions are:
Daniel Keohane: Introduction – Towards a European Defence Market
Erkki Aalto: Interpretations of Article 296
Christian Mölling: Options for an EU regime on intra-Community transfers of defence goods
Sophie de Vaucorbeil: The changing transatlantic defence market
***
Article 296 TEC
In Interpretations of Article 296 (page 13 to 49), Erkki Aalto deals with the unclarity of the derogations offered by Article 296 of the Treaty establishing the European Community (TEC).
The Commission’s Interpretative Communication has tried to put in place some restraints on the member states’ blanket application of the derogations on essential security grounds offered by paragraphs one and two of Article 296, but even the interpretation leaves many crucial issues hanging in the air.
The provision has been left substantially unchanged since 1957 (and the Council Decision of 15 April 1958 listing the arms, munitions and war material is still officially unpublished!), but the world has changed dramatically since then.
Aalto hopes that the ECJ would use the pending customs cases brought against member states to clarify the scope of Article 296 TEC.
In my view, Aalto’s cautious interpretation is a valuable contribution to the discussion, although only his ‘internal market option’ even begins to answer the challenges posed by the rationale behind the European defence industrial and technological base (DTIB) and an internationally competitive European defence equipment market (EDEM).
***
In a wider perspective, Europe is going to continue as a ‘hobbled giant’ as long as it does not create effective EU level powers and democracy in foreign and security policy and defence.
Ralf Grahn
The European Parliament adopted a new Defence Transfers Directive in December 2008 to harmonise the intra-Community licensing systems and a new Defence Procurement Directive in January 2009 to create a “third pillar” for public procurement alongside the general Procurement Directive 2004/18/EC and the special sectors Utilities Directive 2004/17/EC.
The intergovernmental European Defence Agency (EDA) was established by Council Joint Action
2004/551/CFSP of 12 July 2004 on the establishment of the European Defence Agency (published OJEU 17.7.2004 l 245/17) to:
· Develop defence capabilities in the field of crisis management
· Promote European armaments cooperation
· Strengthen the European defence industrial and technological base (DTIB)
· Work for the creation of an internationally competitive European defence equipment market (EDEM)
The Commission’s Defence package included a Communication on the European defence industry COM(2007) 764 final.
***
Depressing results
Despite some progress, the overall assessment is that NATO, the WEU and more recently the European Union have tried for decades to improve multinational armaments cooperation with depressingly little success.
In Towards a European Defence Market (Chaillot Paper No 113, November 2008, 126 pages), published by the European Union Institute for Security Studies (EUISS), four researchers describe the current state of affairs and the prospects for progress.
The publication is available at www.iss.europa.eu and the individual contributions are:
Daniel Keohane: Introduction – Towards a European Defence Market
Erkki Aalto: Interpretations of Article 296
Christian Mölling: Options for an EU regime on intra-Community transfers of defence goods
Sophie de Vaucorbeil: The changing transatlantic defence market
***
Article 296 TEC
In Interpretations of Article 296 (page 13 to 49), Erkki Aalto deals with the unclarity of the derogations offered by Article 296 of the Treaty establishing the European Community (TEC).
The Commission’s Interpretative Communication has tried to put in place some restraints on the member states’ blanket application of the derogations on essential security grounds offered by paragraphs one and two of Article 296, but even the interpretation leaves many crucial issues hanging in the air.
The provision has been left substantially unchanged since 1957 (and the Council Decision of 15 April 1958 listing the arms, munitions and war material is still officially unpublished!), but the world has changed dramatically since then.
Aalto hopes that the ECJ would use the pending customs cases brought against member states to clarify the scope of Article 296 TEC.
In my view, Aalto’s cautious interpretation is a valuable contribution to the discussion, although only his ‘internal market option’ even begins to answer the challenges posed by the rationale behind the European defence industrial and technological base (DTIB) and an internationally competitive European defence equipment market (EDEM).
***
In a wider perspective, Europe is going to continue as a ‘hobbled giant’ as long as it does not create effective EU level powers and democracy in foreign and security policy and defence.
Ralf Grahn
Friday, 23 January 2009
EU overseas association framework
The associated non-European, overseas countries and territories (OCTs) are special. They do not form part of the European Community (European Union), but neither are they third countries from the EU’s point of view.
The relations between the European Community and the OCTs are both special and asymmetric.
Article 183 of the Treaty establishing the European Community lays down some basic principles concerning this special relationship. The framework covers the trade regime, investments for development, procurement (tenders) and the right of establishment.
Trade: The EU member states apply the same rules to their trade with the OCTs as to the other member states (paragraph 1). .
An OCT applies the same trade rules to other EU member states as it applies to its mother country (paragraph 2).
Development investments: The EU member states contribute to development investments in the overseas countries and territories (paragraph 3).
Tenders: As a counterweight to the financial obligations of EU member states, businesses from all member states or other OCTs can participate in procurement procedures concerning Community investments in OCTs on equal terms (paragraph 4).
Establishment: Non-discriminatory rights of establishment are to be set out (paragraph 5).
The wording of Article 183 of the Treaty establishing the European Community (TEC):
Article 183 TEC
Association shall have the following objectives.
1. Member States shall apply to their trade with the countries and territories the same treatment as they accord each other pursuant to this Treaty.
2. Each country or territory shall apply to its trade with Member States and with the other countries and territories the same treatment as that which it applies to the European State with which is has special relations.
3. The Member States shall contribute to the investments required for the progressive development of these countries and territories.
4. For investments financed by the Community, participation in tenders and supplies shall be open on equal terms to all natural and legal persons who are nationals of a Member State or of one of the countries and territories.
5. In relations between Member States and the countries and territories the right of establishment of nationals and companies or firms shall be regulated in accordance with the provisions and procedures laid down in the Chapter relating to the right of establishment and on a non‑discriminatory basis, subject to any special provisions laid down pursuant to Article 187.
***
Consolidated Lisbon Treaty
Article 183 TEC underwent no specific amendments, so without looking at the intervening steps we present the consolidated version of the Treaty on the Functioning of the European Union (TFEU, where the corresponding provision is Article 199 (OJEU 9.5.2008 C 115/137):
(PART FOUR
ASSOCIATION OF THE OVERSEAS COUNTRIES AND TERRITORIES)
Article 199 TFEU
(ex Article 183 TEC)
Association shall have the following objectives.
1. Member States shall apply to their trade with the countries and territories the same treatment as they accord each other pursuant to the Treaties.
2. Each country or territory shall apply to its trade with Member States and with the other countries and territories the same treatment as that which it applies to the European State with which is has special relations.
3. The Member States shall contribute to the investments required for the progressive development of these countries and territories.
4. For investments financed by the Union, participation in tenders and supplies shall be open on equal terms to all natural and legal persons who are nationals of a Member State or of one of the countries and territories.
5. In relations between Member States and the countries and territories the right of establishment of nationals and companies or firms shall be regulated in accordance with the provisions and procedures laid down in the Chapter relating to the right of establishment and on a non-discriminatory basis, subject to any special provisions laid down pursuant to Article 203.
***
Scadplus
The Commission’s Scadplus web pages contain summaries of Community legislation. The page Association of the OCTs with the European Community is available here (latest update 20 February 2008):
http://europa.eu/scadplus/leg/en/lvb/r12301.htm
The web page European Development Fund (EDF) presents the main instrument for aid to African, Caribbean and Pacific states (ACP countries) and OCTs (last updated 14 June 2007):
http://europa.eu/scadplus/leg/en/lvb/r12102.htm
***
Commission
The Commission’s Directorate-General Development offers additional information and links on the web page EU relations with its associated overseas territories:
http://ec.europa.eu/development/geographical/regionscountries/regionscountriesocts_en.cfm
***
Future overseas association relations
The Commission has issued a Green Paper on future OCT relations. The Communication Future relations between the EU and the Overseas Countries and Territories, Brussels, 25.6.2008 COM(2008) 383 final, is available here:
http://ec.europa.eu/development/icenter/repository/1_EN_ACT_part1_v8.pdf
With the Green Paper the Commission launched a discussion on the future relations between the EU and the OCTs, in the longer term. The grounds, objectives and nature of the solidarity between the EU and the OCTs are discussed. More specific issues regarding the trade regime applicable to the OCTs and the OCTs’ specific characteristics are dealt with in a Commission staff working paper.
In addition to the questions about the future, the Green Paper presents the situation of the European Community, the member states and OCT nationals, especially if you read the Annexes contained in
The Commission Staff Working Document accompanying the Green Paöer Future relations between the EU and the Overseas Countries and Territories, Brussels, 25.6.2008 SEC(2008) 2067:
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=SEC:2008:2067:FIN:EN:PDF
In other words, if you regard one of the following OCTs as more than an exotic holiday destination, you might want to read the Commission papers:
Greenland, New Caledonia and Dependencies, French Polynesia, French Southern and Antarctic Territories, Wallis and Futuna Islands, Mayotte, Saint Pierre and Miquelon, Aruba, Netherlands Antilles (Bonaire, Curaçao, Saba, Sint Eustatius, Sint Maarten), Anguilla, Cayman Islands, Falkland Islands, South Georgia and the South Sandwich Islands, Montserrat, Pitcairn, Saint Helena and Dependencies, British Antarctic Territory, British Indian Ocean Territory, Turks and Caicos Islands, British Virgin Islands, [Bermuda].
Ralf Grahn
The relations between the European Community and the OCTs are both special and asymmetric.
Article 183 of the Treaty establishing the European Community lays down some basic principles concerning this special relationship. The framework covers the trade regime, investments for development, procurement (tenders) and the right of establishment.
Trade: The EU member states apply the same rules to their trade with the OCTs as to the other member states (paragraph 1). .
An OCT applies the same trade rules to other EU member states as it applies to its mother country (paragraph 2).
Development investments: The EU member states contribute to development investments in the overseas countries and territories (paragraph 3).
Tenders: As a counterweight to the financial obligations of EU member states, businesses from all member states or other OCTs can participate in procurement procedures concerning Community investments in OCTs on equal terms (paragraph 4).
Establishment: Non-discriminatory rights of establishment are to be set out (paragraph 5).
The wording of Article 183 of the Treaty establishing the European Community (TEC):
Article 183 TEC
Association shall have the following objectives.
1. Member States shall apply to their trade with the countries and territories the same treatment as they accord each other pursuant to this Treaty.
2. Each country or territory shall apply to its trade with Member States and with the other countries and territories the same treatment as that which it applies to the European State with which is has special relations.
3. The Member States shall contribute to the investments required for the progressive development of these countries and territories.
4. For investments financed by the Community, participation in tenders and supplies shall be open on equal terms to all natural and legal persons who are nationals of a Member State or of one of the countries and territories.
5. In relations between Member States and the countries and territories the right of establishment of nationals and companies or firms shall be regulated in accordance with the provisions and procedures laid down in the Chapter relating to the right of establishment and on a non‑discriminatory basis, subject to any special provisions laid down pursuant to Article 187.
***
Consolidated Lisbon Treaty
Article 183 TEC underwent no specific amendments, so without looking at the intervening steps we present the consolidated version of the Treaty on the Functioning of the European Union (TFEU, where the corresponding provision is Article 199 (OJEU 9.5.2008 C 115/137):
(PART FOUR
ASSOCIATION OF THE OVERSEAS COUNTRIES AND TERRITORIES)
Article 199 TFEU
(ex Article 183 TEC)
Association shall have the following objectives.
1. Member States shall apply to their trade with the countries and territories the same treatment as they accord each other pursuant to the Treaties.
2. Each country or territory shall apply to its trade with Member States and with the other countries and territories the same treatment as that which it applies to the European State with which is has special relations.
3. The Member States shall contribute to the investments required for the progressive development of these countries and territories.
4. For investments financed by the Union, participation in tenders and supplies shall be open on equal terms to all natural and legal persons who are nationals of a Member State or of one of the countries and territories.
5. In relations between Member States and the countries and territories the right of establishment of nationals and companies or firms shall be regulated in accordance with the provisions and procedures laid down in the Chapter relating to the right of establishment and on a non-discriminatory basis, subject to any special provisions laid down pursuant to Article 203.
***
Scadplus
The Commission’s Scadplus web pages contain summaries of Community legislation. The page Association of the OCTs with the European Community is available here (latest update 20 February 2008):
http://europa.eu/scadplus/leg/en/lvb/r12301.htm
The web page European Development Fund (EDF) presents the main instrument for aid to African, Caribbean and Pacific states (ACP countries) and OCTs (last updated 14 June 2007):
http://europa.eu/scadplus/leg/en/lvb/r12102.htm
***
Commission
The Commission’s Directorate-General Development offers additional information and links on the web page EU relations with its associated overseas territories:
http://ec.europa.eu/development/geographical/regionscountries/regionscountriesocts_en.cfm
***
Future overseas association relations
The Commission has issued a Green Paper on future OCT relations. The Communication Future relations between the EU and the Overseas Countries and Territories, Brussels, 25.6.2008 COM(2008) 383 final, is available here:
http://ec.europa.eu/development/icenter/repository/1_EN_ACT_part1_v8.pdf
With the Green Paper the Commission launched a discussion on the future relations between the EU and the OCTs, in the longer term. The grounds, objectives and nature of the solidarity between the EU and the OCTs are discussed. More specific issues regarding the trade regime applicable to the OCTs and the OCTs’ specific characteristics are dealt with in a Commission staff working paper.
In addition to the questions about the future, the Green Paper presents the situation of the European Community, the member states and OCT nationals, especially if you read the Annexes contained in
The Commission Staff Working Document accompanying the Green Paöer Future relations between the EU and the Overseas Countries and Territories, Brussels, 25.6.2008 SEC(2008) 2067:
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=SEC:2008:2067:FIN:EN:PDF
In other words, if you regard one of the following OCTs as more than an exotic holiday destination, you might want to read the Commission papers:
Greenland, New Caledonia and Dependencies, French Polynesia, French Southern and Antarctic Territories, Wallis and Futuna Islands, Mayotte, Saint Pierre and Miquelon, Aruba, Netherlands Antilles (Bonaire, Curaçao, Saba, Sint Eustatius, Sint Maarten), Anguilla, Cayman Islands, Falkland Islands, South Georgia and the South Sandwich Islands, Montserrat, Pitcairn, Saint Helena and Dependencies, British Antarctic Territory, British Indian Ocean Territory, Turks and Caicos Islands, British Virgin Islands, [Bermuda].
Ralf Grahn
Arms trade framework: Germany
On this blog we have reported on the new European Community (European Union) Defence Procurement Directive and Defence Transfers Directive, adopted by the European Parliament in January 2009 and December 2008 respectively.
We now suggest some further reading for those who are interested in the wider context of arms trade issues and export licenses in an international or EU context.
On 17 December 2008 the German Federal Government published its latest annual report on arms exports, Rüstungsexportbericht 2007, officially Bericht der Bundesregierung über ihre Exportpolitik für konventionelle Rüstungsgüter im Jahre 2007.
The report (157 pages including annexes) is available on the web pages of the Bundesministerium für Wirtschaft und Technologie (BMWi):
http://www.bmwi.de/BMWi/Redaktion/PDF/Publikationen/ruestungsexportbericht-2007,property=pdf,bereich=bmwi,sprache=de,rwb=true.pdf
For our purposes, we want to draw attention to the presentation of the international arms trade framework (page 10 to 20). The brief and clear presentation includes arms reduction, weapons embargoes, the European Union common foreign and security policy, the proposed Defence Transfers Directive, the Farnborough Agreement, the Wassenaar Arrangement, the United Nations, small arms, a proposed Arms Trade Treaty and Outreach Activities.
Governments in other EU member states may be interested in the description of the German arms export license system.
Ralf Grahn
We now suggest some further reading for those who are interested in the wider context of arms trade issues and export licenses in an international or EU context.
On 17 December 2008 the German Federal Government published its latest annual report on arms exports, Rüstungsexportbericht 2007, officially Bericht der Bundesregierung über ihre Exportpolitik für konventionelle Rüstungsgüter im Jahre 2007.
The report (157 pages including annexes) is available on the web pages of the Bundesministerium für Wirtschaft und Technologie (BMWi):
http://www.bmwi.de/BMWi/Redaktion/PDF/Publikationen/ruestungsexportbericht-2007,property=pdf,bereich=bmwi,sprache=de,rwb=true.pdf
For our purposes, we want to draw attention to the presentation of the international arms trade framework (page 10 to 20). The brief and clear presentation includes arms reduction, weapons embargoes, the European Union common foreign and security policy, the proposed Defence Transfers Directive, the Farnborough Agreement, the Wassenaar Arrangement, the United Nations, small arms, a proposed Arms Trade Treaty and Outreach Activities.
Governments in other EU member states may be interested in the description of the German arms export license system.
Ralf Grahn
Thursday, 22 January 2009
EU Law: Associated overseas countries and territories
The Treaty establishing the European Community sets out a special regime – association – for overseas countries and territories with a special relationship to one of the member states Denmark, France, the Netherlands or the United Kingdom.
These non-European countries and territories are not independent states. European Community (European Union) law does not apply directly to them.
***
Current TEC
The Preamble of the Treaty establishing the European Community (TEC) evokes the intention to confirm the solidarity which binds Europe and the overseas countries and the desire to ensure the development of their prosperity, in accordance with the principles of the Charter of the United Nations.
Among the activities of the European Community Article 3(1)(s) TEC mentions the association of the overseas countries and territories in order to increase trade and promote jointly economic and social development.
Article 182 TEC sets out the geographical scope of the associated overseas countries and territories, OCTs in Eurojargon.
First of all, such relations exist only with Denmark, France, the Netherlands and the United Kingdom.
Further, these non-European countries and territories are listed in TEC Annex II (below).
The purpose and the aims of association can be described as benevolent. They are laid down in the second and the third paragraph:
PART FOUR
ASSOCIATION OF THE OVERSEAS COUNTRIES AND TERRITORIES
Article 182 TEC
The Member States agree to associate with the Community the non-European countries and territories which have special relations with Denmark, France, the Netherlands and the United Kingdom. These countries and territories (hereinafter called the ‘countries and territories’) are listed in Annex II to this Treaty.
The purpose of association shall be to promote the economic and social development of the countries and territories and to establish close economic relations between them and the Community as a whole.
In accordance with the principles set out in the preamble to this Treaty, association shall serve primarily to further the interests and prosperity of the inhabitants of these countries and territories in order to lead them to the economic, social and cultural development to which they aspire.
***
Original Lisbon Treaty (ToL)
Article 2, point 151 of the original Treaty of Lisbon (ToL) made a cosmetic change to Article 182 TEC (OJEU 17.12.2007 C 306/90):
ASSOCIATION OF THE OVERSEAS COUNTRIES AND TERRITORIES
151) At the end of Article 182, first paragraph, the words ‘to this Treaty’ shall be deleted.
***
Renumbering the Treaty of Lisbon (ToL)
The Table of equivalences of the original Treaty of Lisbon tells us that Article 182 TEC became Article 182 TFEU (ToL) and was then renumbered Article 198 TFEU in the consolidated version of the Lisbon Treaty (OJEU 17.12.2007 C 306/219).
***
Consolidated Lisbon Treaty
Article 198 TFEU
In addition to the specific but cosmetic amendment, the usual horizontal amendment replaced Community by Union. Article 198 TFEU appears like this in the consolidated version of the Treaty of Lisbon (OJEU 9.5.2008 C 115/137):
PART FOUR
ASSOCIATION OF THE OVERSEAS COUNTRIES AND TERRITORIES
Article 198 TFEU
(ex Article 182 TEC)
The Member States agree to associate with the Union the non-European countries and territories which have special relations with Denmark, France, the Netherlands and the United Kingdom. These countries and territories (hereinafter called the ‘countries and territories’) are listed in Annex II.
The purpose of association shall be to promote the economic and social development of the countries and territories and to establish close economic relations between them and the Union as a whole.
In accordance with the principles set out in the preamble to this Treaty, association shall serve primarily to further the interests and prosperity of the inhabitants of these countries and territories in order to lead them to the economic, social and cultural development to which they aspire.
***
Annex II
The latest official version of the list of associated overseas countries and territories is annexed to the consolidated Treaty of Lisbon (OJEU 9.5.2008 C 115/334):
ANNEX II
OVERSEAS COUNTRIES AND TERRITORIES TO WHICH THE PROVISIONS OF PART FOUR OF THE TREATY ON THE FUNCTIONING OF THE EUROPEAN UNION APPLY
— Greenland,
— New Caledonia and Dependencies,
— French Polynesia,
— French Southern and Antarctic Territories,
— Wallis and Futuna Islands,
— Mayotte,
— Saint Pierre and Miquelon,
— Aruba,
— Netherlands Antilles:
· Bonaire,
· Curaçao,
· Saba,
· Sint Eustatius,
· Sint Maarten,
— Anguilla,
— Cayman Islands,
— Falkland Islands,
— South Georgia and the South Sandwich Islands,
— Montserrat,
— Pitcairn,
— Saint Helena and Dependencies,
— British Antarctic Territory,
— British Indian Ocean Territory,
— Turks and Caicos Islands,
— British Virgin Islands,
— Bermuda.
Ralf Grahn
These non-European countries and territories are not independent states. European Community (European Union) law does not apply directly to them.
***
Current TEC
The Preamble of the Treaty establishing the European Community (TEC) evokes the intention to confirm the solidarity which binds Europe and the overseas countries and the desire to ensure the development of their prosperity, in accordance with the principles of the Charter of the United Nations.
Among the activities of the European Community Article 3(1)(s) TEC mentions the association of the overseas countries and territories in order to increase trade and promote jointly economic and social development.
Article 182 TEC sets out the geographical scope of the associated overseas countries and territories, OCTs in Eurojargon.
First of all, such relations exist only with Denmark, France, the Netherlands and the United Kingdom.
Further, these non-European countries and territories are listed in TEC Annex II (below).
The purpose and the aims of association can be described as benevolent. They are laid down in the second and the third paragraph:
PART FOUR
ASSOCIATION OF THE OVERSEAS COUNTRIES AND TERRITORIES
Article 182 TEC
The Member States agree to associate with the Community the non-European countries and territories which have special relations with Denmark, France, the Netherlands and the United Kingdom. These countries and territories (hereinafter called the ‘countries and territories’) are listed in Annex II to this Treaty.
The purpose of association shall be to promote the economic and social development of the countries and territories and to establish close economic relations between them and the Community as a whole.
In accordance with the principles set out in the preamble to this Treaty, association shall serve primarily to further the interests and prosperity of the inhabitants of these countries and territories in order to lead them to the economic, social and cultural development to which they aspire.
***
Original Lisbon Treaty (ToL)
Article 2, point 151 of the original Treaty of Lisbon (ToL) made a cosmetic change to Article 182 TEC (OJEU 17.12.2007 C 306/90):
ASSOCIATION OF THE OVERSEAS COUNTRIES AND TERRITORIES
151) At the end of Article 182, first paragraph, the words ‘to this Treaty’ shall be deleted.
***
Renumbering the Treaty of Lisbon (ToL)
The Table of equivalences of the original Treaty of Lisbon tells us that Article 182 TEC became Article 182 TFEU (ToL) and was then renumbered Article 198 TFEU in the consolidated version of the Lisbon Treaty (OJEU 17.12.2007 C 306/219).
***
Consolidated Lisbon Treaty
Article 198 TFEU
In addition to the specific but cosmetic amendment, the usual horizontal amendment replaced Community by Union. Article 198 TFEU appears like this in the consolidated version of the Treaty of Lisbon (OJEU 9.5.2008 C 115/137):
PART FOUR
ASSOCIATION OF THE OVERSEAS COUNTRIES AND TERRITORIES
Article 198 TFEU
(ex Article 182 TEC)
The Member States agree to associate with the Union the non-European countries and territories which have special relations with Denmark, France, the Netherlands and the United Kingdom. These countries and territories (hereinafter called the ‘countries and territories’) are listed in Annex II.
The purpose of association shall be to promote the economic and social development of the countries and territories and to establish close economic relations between them and the Union as a whole.
In accordance with the principles set out in the preamble to this Treaty, association shall serve primarily to further the interests and prosperity of the inhabitants of these countries and territories in order to lead them to the economic, social and cultural development to which they aspire.
***
Annex II
The latest official version of the list of associated overseas countries and territories is annexed to the consolidated Treaty of Lisbon (OJEU 9.5.2008 C 115/334):
ANNEX II
OVERSEAS COUNTRIES AND TERRITORIES TO WHICH THE PROVISIONS OF PART FOUR OF THE TREATY ON THE FUNCTIONING OF THE EUROPEAN UNION APPLY
— Greenland,
— New Caledonia and Dependencies,
— French Polynesia,
— French Southern and Antarctic Territories,
— Wallis and Futuna Islands,
— Mayotte,
— Saint Pierre and Miquelon,
— Aruba,
— Netherlands Antilles:
· Bonaire,
· Curaçao,
· Saba,
· Sint Eustatius,
· Sint Maarten,
— Anguilla,
— Cayman Islands,
— Falkland Islands,
— South Georgia and the South Sandwich Islands,
— Montserrat,
— Pitcairn,
— Saint Helena and Dependencies,
— British Antarctic Territory,
— British Indian Ocean Territory,
— Turks and Caicos Islands,
— British Virgin Islands,
— Bermuda.
Ralf Grahn
EU temporary state aid: Officially published
The European Commission’s Communication ‘Temporary Community framework for State aid measures to support access to finance in the current financial and economic crisis’ has now been published in the Official Journal of the European Union 22.1.2009 C 16/1:
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2009:016:0001:0009:EN:PDF
The nine pages of the Communication form a richly documented crash course in EC (EU) state aid law, both previously existing principles and new temporary measures to counter the economic recession.
The Commission applies the Communication from 17 December 2008, the date on which it agreed in principle its content, but not beyond 31 December 2010.
Ralf Grahn
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2009:016:0001:0009:EN:PDF
The nine pages of the Communication form a richly documented crash course in EC (EU) state aid law, both previously existing principles and new temporary measures to counter the economic recession.
The Commission applies the Communication from 17 December 2008, the date on which it agreed in principle its content, but not beyond 31 December 2010.
Ralf Grahn
Wednesday, 21 January 2009
EU administrative cooperation: Competence and EIPA
The Treaty of Lisbon would create a legal base for administrative cooperation aiming at effective implementation of EU law. The building of the capabilities of national public administrations would take place on a voluntary basis, as we saw in the previous blog post on Article 197 of the Treaty on the Functioning of the European Union (TFEU).
In this post we add a presentation of the new competence in the context of EU powers in general and a brief presentation of the European Institute of Public Administration (EIPA).
There are various Commission activities and projects, but after sifting through a lot of information we ask if there is a comprehensive Commission view.
***
Competence
The Lisbon Treaty would create a legal base for administrative cooperation aiming at better implementation of EU law. In this regard the Lisbon Treaty adopts the solutions of the Constitutional Treaty and the European Convention, as shown in the previous blog post.
In the general classification of EU competence in different policy areas, the Lisbon Treaty sorts administrative cooperation among the seven policy areas of supporting, coordinating or supplementing action, in Article 6(g) TFEU:
Article 6 TFEU
The Union shall have competence to carry out actions to support, coordinate or supplement the actions of the Member States. The areas of such action shall, at European level, be:
(a) protection and improvement of human health;
(b) industry;
(c) culture;
(d) tourism;
(e) education, vocational training, youth and sport;
(f) civil protection;
(g) administrative cooperation.
***
EIPA
The European Institute of Public Administration (EIPA) presents itself as the leading centre of European learning and development for the public sector. The EIPA headquarters are in Maastricht, with antennae in Luxembourg, Barcelona and Warsaw and a presence in Brussels.
The EIPA’s Board of Governors is composed of representatives from the EU Member States – in principle the person responsible for public administration and the public service – as well as representatives of third countries that have signed a cooperation agreement with EIPA as associated members.
We are informed that the European Commission supports EIPA through the European Union budget.
For more information about EIPA’s training, research and publications you can go to:
http://www.eipa.eu/en/home/
***
Comprehensive view?
Almost everything the European Community (European Union) does is political and administrative cooperation in a broad sense. But in a narrower sense, such as the capacity building administrative cooperation the Treaty of Lisbon would introduce, the Europa portal offers only fragmented information about developing customs, tax, internal market cooperation or eGovernment and eProcurement. The different Directorate-Generals also monitor the implementation of Community law in their respective fields.
But if we leave the specific projects aside, it is easier to find comprehensive EU information about the union’s role in public sector development in pre-accession countries and developing countries than with regard to the European Union itself.
Outside the European Commission there is a plethora of research, teaching and publishing in fields like administrative sciences, public administration and public governance, as well as practical development of human resources in various administrations.
Is there a holistic Commission view waiting to be communicated or created?
Ralf Grahn
In this post we add a presentation of the new competence in the context of EU powers in general and a brief presentation of the European Institute of Public Administration (EIPA).
There are various Commission activities and projects, but after sifting through a lot of information we ask if there is a comprehensive Commission view.
***
Competence
The Lisbon Treaty would create a legal base for administrative cooperation aiming at better implementation of EU law. In this regard the Lisbon Treaty adopts the solutions of the Constitutional Treaty and the European Convention, as shown in the previous blog post.
In the general classification of EU competence in different policy areas, the Lisbon Treaty sorts administrative cooperation among the seven policy areas of supporting, coordinating or supplementing action, in Article 6(g) TFEU:
Article 6 TFEU
The Union shall have competence to carry out actions to support, coordinate or supplement the actions of the Member States. The areas of such action shall, at European level, be:
(a) protection and improvement of human health;
(b) industry;
(c) culture;
(d) tourism;
(e) education, vocational training, youth and sport;
(f) civil protection;
(g) administrative cooperation.
***
EIPA
The European Institute of Public Administration (EIPA) presents itself as the leading centre of European learning and development for the public sector. The EIPA headquarters are in Maastricht, with antennae in Luxembourg, Barcelona and Warsaw and a presence in Brussels.
The EIPA’s Board of Governors is composed of representatives from the EU Member States – in principle the person responsible for public administration and the public service – as well as representatives of third countries that have signed a cooperation agreement with EIPA as associated members.
We are informed that the European Commission supports EIPA through the European Union budget.
For more information about EIPA’s training, research and publications you can go to:
http://www.eipa.eu/en/home/
***
Comprehensive view?
Almost everything the European Community (European Union) does is political and administrative cooperation in a broad sense. But in a narrower sense, such as the capacity building administrative cooperation the Treaty of Lisbon would introduce, the Europa portal offers only fragmented information about developing customs, tax, internal market cooperation or eGovernment and eProcurement. The different Directorate-Generals also monitor the implementation of Community law in their respective fields.
But if we leave the specific projects aside, it is easier to find comprehensive EU information about the union’s role in public sector development in pre-accession countries and developing countries than with regard to the European Union itself.
Outside the European Commission there is a plethora of research, teaching and publishing in fields like administrative sciences, public administration and public governance, as well as practical development of human resources in various administrations.
Is there a holistic Commission view waiting to be communicated or created?
Ralf Grahn
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.
***
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.
***
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.
***
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.
***
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.’.
***
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).
***
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.
***
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
The Lisbon Treaty would create a legal base for administrative cooperation with the support of the European Union.
***
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.
***
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.
***
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.
***
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.’.
***
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).
***
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.
***
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
EU Defence Procurement Directive text
The Defence Procurement Directive text P6_TA(2009)0016 approved by the European Parliament 14 January 2009 is available on the EP web site in the official languages of the European Union.
The English version of what officially is going to be known as the Directive of the European Parliament and of the Council on the coordination of procedures for the award of certain public works contracts, public supply contracts and public service contracts in the fields of defence and security, is available here:
http://www.europarl.europa.eu/sides/getDoc.do?type=TA&reference=P6-TA-2009-0016&language=EN&ring=A6-2008-0415
The EP amendments have been agreed with the Council, so the contents should be the final ones. While we wait for formal adoption by the Council and publication in the Official Journal of the European Union, with date, number and OJEU number, this is the best text publicly available.
Ralf Grahn
The English version of what officially is going to be known as the Directive of the European Parliament and of the Council on the coordination of procedures for the award of certain public works contracts, public supply contracts and public service contracts in the fields of defence and security, is available here:
http://www.europarl.europa.eu/sides/getDoc.do?type=TA&reference=P6-TA-2009-0016&language=EN&ring=A6-2008-0415
The EP amendments have been agreed with the Council, so the contents should be the final ones. While we wait for formal adoption by the Council and publication in the Official Journal of the European Union, with date, number and OJEU number, this is the best text publicly available.
Ralf Grahn
Tuesday, 20 January 2009
EU solidarity and civil protection
The previous blog post evoked the words of the Schuman declaration: 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.
Civil protection is an area where the Lisbon Treaty brings European reality one step closer to the words of the French foreign minister Robert Schuman on 9 May 1950.
In the preceding post, we looked at the drafting history of Title XXIII Civil protection and Article 196 of the Treaty on the Functioning of the European Union (TFEU).
We now take a look at the Title Solidarity clause and its Article 222 TFEU, as an example of the growing readiness of EU governments and citizens to assist each other in a spirit of solidarity.
As I said, the EU treaties and institutions are the bricks, but solidarity is the mortar of European integration.
***
Solidarity clause
The Lisbon Treaty would amalgamate the Solidarity clause and the implementing clause of the Constitutional Treaty (and the draft Constitution) in Article 222 TFEU:
TITLE VII
SOLIDARITY CLAUSE
Article 222 TFEU
1. The Union and its Member States shall act jointly in a spirit of solidarity if a Member State is the object of a terrorist attack or the victim of a natural or man-made disaster. The Union shall mobilise all the instruments at its disposal, including the military resources made available by the Member States, to:
(a) — prevent the terrorist threat in the territory of the Member States;
— protect democratic institutions and the civilian population from any terrorist attack;
— assist a Member State in its territory, at the request of its political authorities, in the event of a terrorist attack;
(b) assist a Member State in its territory, at the request of its political authorities, in the event of a natural or man-made disaster.
2. Should a Member State be the object of a terrorist attack or the victim of a natural or man-made disaster, the other Member States shall assist it at the request of its political authorities. To that end, the Member States shall coordinate between themselves in the Council.
3. The arrangements for the implementation by the Union of the solidarity clause shall be defined by a decision adopted by the Council acting on a joint proposal by the Commission and the High Representative of the Union for Foreign Affairs and Security Policy. The Council shall act in accordance with Article 31(1) of the Treaty on European Union where this decision has defence implications. The European Parliament shall be informed.
For the purposes of this paragraph and without prejudice to Article 240, the Council shall be assisted by the Political and Security Committee with the support of the structures developed in the context of the common security and defence policy and by the Committee referred to in Article 71; the two committees shall, if necessary, submit joint opinions.
4. The European Council shall regularly assess the threats facing the Union in order to enable the Union and its Member States to take effective action.
***
Declaration 37
The European de facto solidarity is an evolving project. At this stage the member states have accepted the principles of solidarity and mutual assistance, but they still feel the need to emphasise that they decide on how they are going to comply with their obligation.
Article 222 TFEU is thus tempered by joint Declaration 37 annexed to the Final Act of the IGC 2007:
37. Declaration on Article 222 of the Treaty on the Functioning of the European Union
Without prejudice to the measures adopted by the Union to comply with its solidarity obligation towards a Member State which is the object of a terrorist attack or the victim of natural or man-made disaster, none of the provisions of Article 222 is intended to affect the right of another Member State to choose the most appropriate means to comply with its own solidarity obligation towards that Member State.
***
Competence
Let us return to civil protection (Article 196 TFEU).
In the general classification of EU competence in different policy areas, civil protection appears among the seven policy areas of supporting, coordinating or supplementing action, in Article 6(f) TFEU:
Article 6 TFEU
The Union shall have competence to carry out actions to support, coordinate or supplement the actions of the Member States. The areas of such action shall, at European level, be:
(a) protection and improvement of human health;
(b) industry;
(c) culture;
(d) tourism;
(e) education, vocational training, youth and sport;
(f) civil protection;
(g) administrative cooperation.
***
Civil protection summary
The Commission’s Scadplus pages offer summaries of legislation in different areas of EU policy. The web page Civil protection offers links to relevant civil protection issues:
http://europa.eu/scadplus/leg/en/s15007.htm
***
Commission activities
In the European Commission, the Directorate-General Environment and Commissioner Stavros Dimas are responsible for civil protection. The Environment home page is available here:
http://ec.europa.eu/environment/index_en.htm
European Civil Protection is a more precise location for current activities in this field:
http://ec.europa.eu/environment/civil/index.htm
***
Civil Protection Financial Instrument 2007–2013
The centrepiece of continuous EU level action is contained in the Council Decision No 2007/162/EC, Euratom of 5 March 2007 establishing a Civil Protection Financial Instrument, a text with EEA relevance, published OJEU 10.3.2007 L 71/9:
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2007:071:0009:0017:EN:PDF
The legal base is still Article 308 TEC, the flexibility clause, since the Constitutional Treaty had not entered into force and the IGC 2007 leading to the Lisbon Treaty was only being prepared by the German Council Presidency.
Article 1 presents the subject matter of the Civil Protection Financial Instrument from 2007 to 2013 and Article 2 offers a more exact picture of the scope, including related EC legal acts:
Article 1
Subject matter
1. This Decision establishes a Civil Protection Financial Instrument (the Instrument) to support and complement the efforts of the Member States for the protection, primarily of people but also of the environment and property, including cultural heritage, in the event of natural and man-made disasters, acts of terrorism and technological, radiological or environmental accidents and to facilitate reinforced cooperation between the Member States in the field of civil protection.
The Instrument shall cover the period from 1 January 2007 to 31 December 2013.
2. This Decision lays down the rules for the provision of financial assistance for:
(a) actions in the field of the Community mechanism to facilitate reinforced cooperation in civil protection assistance interventions (the Mechanism);
(b) measures to prevent or reduce the effects of an emergency; and
(c) actions designed to enhance the Community's state of preparedness for responses to emergencies, including actions enhancing EU citizens' awareness.
3. This Decision makes special provisions to fund certain transport resources in the event of a major emergency, to facilitate a rapid and effective response thereto.
4. This Decision shall take into account the special needs of isolated, outermost and other regions or islands of the Community in the case of an emergency.
Article 2
Scope
1. This Decision shall apply to preventive and preparedness measures for all kinds of emergencies inside the Community and in countries participating on the basis of Article 7.
2. This Decision shall apply to actions to assist with the response to the immediate consequences of a major emergency regardless of its nature, including the response to accidental marine pollution emergencies through the Mechanism, inside or outside the Community, where a request is made for assistance in accordance with the Mechanism.
3. This Decision shall not apply to the following:
(a) actions falling under Regulation (EC) No 1717/2006;
(b) actions and measures falling under Community legislation concerning Community action programmes in the field of health;
(c) actions and measures falling under Decision No 1926/2006/EC;
(d) actions falling under Decision 2007/124/EC, Euratom;
(e) actions falling under Regulation (EC) No 1257/96, without prejudice to Article 4(2)(c) of this Decision;
(f) actions falling under Regulation (EC) No 1406/2002.
***
Mechanism for civil protection assistance interventions
Even under the current decision-making constraints, the EU member states have realised the importance of being able to respond quickly and resourcefully to disasters affecting EU citizens.
The EC’s previous Mechanism for civil protection assistance intervention (2001/792/EC, Euratom) was beefed up and recast in 2007.
Council Decision 2007/779/EC, Euratom of 8 November 2007 establishing a Community Civil Protection Mechanism (recast), text with EEA relevance, published OJEU 1.12.2007 L 314/9, is available here:
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2007:314:0009:0019:EN:PDF
The aim of the Community Mechanism is to facilitate reinforced cooperation between the Community and the Member States in civil protection assistance intervention in the event of major emergencies, or the imminent threat thereof.
The Mechanism covers primarily people but also the environment and property, including cultural heritage, in the event of natural and man-made disasters, acts of terrorism and, technological, radiological or environmental accidents, including accidental marine pollution, occurring inside or outside the Community.
The Mechanism takes account of the special needs of the isolated, outermost and other regions or islands of the Community.
The Mechanism consists of a series of elements and actions including:
1. the identification of intervention teams and other intervention support available in Member States for assistance intervention in the event of emergencies;
2. the setting-up and implementation of a training programme for intervention teams and other intervention support, and for experts for the teams responsible for assessment and/or coordination;
3. workshops, seminars and pilot projects on major aspects of interventions;
4. the establishment and dispatch of assessment and/or coordination teams;
5. the establishment and management of a Monitoring and Information Centre (MIC), which is accessible and able to react immediately 24 hours a day and serving the Member States and the Commission for the purposes of the Mechanism;
6. the establishment and management of a Common Emergency Communication and Information System (CECIS) to enable communication and sharing of information between the MIC and the contact points of the Member States;
7. contributing to the development of detection and early warning systems for disasters which may affect the territory of the Member States, in order to enable a rapid response by the Member States and the Community, as well as to their establishment through studies and assessments on the need for and feasibility of those systems and through actions to promote their interlinkage and their linkage to the MIC and the CECIS:
8. supporting Member States in obtaining access to equipment and transport resources by:
(a) providing and sharing information on equipment and transport resources that can be made available by the Member States, with a view to facilitating the pooling of such equipment or transport resources;
(b) assisting Member States to identify, and facilitating their access to, transport resources that may be available from other sources, including the commercial market;
(c) assisting Member States to identify equipment that may be available from other sources including the commercial market;
9. complementing the transport provided by Member States by providing additional transport resources necessary for ensuring a rapid response to major emergencies;
10. supporting consular assistance to EU citizens in major emergencies in third countries regarding civil protection activities if requested by the consular authorities of the Member States;
11. other supporting and complementary action necessary in the framework of the Mechanism as mentioned in Article 4 of Council Decision 2007/162/EC, Euratom of 5 March 2007 establishing a Civil Protection Financial Instrument (Article 1).
***
Effective civil protection is a core element of solidarity between EU nations and citizens. The Lisbon Treaty would improve the prospects.
Ralf Grahn
Civil protection is an area where the Lisbon Treaty brings European reality one step closer to the words of the French foreign minister Robert Schuman on 9 May 1950.
In the preceding post, we looked at the drafting history of Title XXIII Civil protection and Article 196 of the Treaty on the Functioning of the European Union (TFEU).
We now take a look at the Title Solidarity clause and its Article 222 TFEU, as an example of the growing readiness of EU governments and citizens to assist each other in a spirit of solidarity.
As I said, the EU treaties and institutions are the bricks, but solidarity is the mortar of European integration.
***
Solidarity clause
The Lisbon Treaty would amalgamate the Solidarity clause and the implementing clause of the Constitutional Treaty (and the draft Constitution) in Article 222 TFEU:
TITLE VII
SOLIDARITY CLAUSE
Article 222 TFEU
1. The Union and its Member States shall act jointly in a spirit of solidarity if a Member State is the object of a terrorist attack or the victim of a natural or man-made disaster. The Union shall mobilise all the instruments at its disposal, including the military resources made available by the Member States, to:
(a) — prevent the terrorist threat in the territory of the Member States;
— protect democratic institutions and the civilian population from any terrorist attack;
— assist a Member State in its territory, at the request of its political authorities, in the event of a terrorist attack;
(b) assist a Member State in its territory, at the request of its political authorities, in the event of a natural or man-made disaster.
2. Should a Member State be the object of a terrorist attack or the victim of a natural or man-made disaster, the other Member States shall assist it at the request of its political authorities. To that end, the Member States shall coordinate between themselves in the Council.
3. The arrangements for the implementation by the Union of the solidarity clause shall be defined by a decision adopted by the Council acting on a joint proposal by the Commission and the High Representative of the Union for Foreign Affairs and Security Policy. The Council shall act in accordance with Article 31(1) of the Treaty on European Union where this decision has defence implications. The European Parliament shall be informed.
For the purposes of this paragraph and without prejudice to Article 240, the Council shall be assisted by the Political and Security Committee with the support of the structures developed in the context of the common security and defence policy and by the Committee referred to in Article 71; the two committees shall, if necessary, submit joint opinions.
4. The European Council shall regularly assess the threats facing the Union in order to enable the Union and its Member States to take effective action.
***
Declaration 37
The European de facto solidarity is an evolving project. At this stage the member states have accepted the principles of solidarity and mutual assistance, but they still feel the need to emphasise that they decide on how they are going to comply with their obligation.
Article 222 TFEU is thus tempered by joint Declaration 37 annexed to the Final Act of the IGC 2007:
37. Declaration on Article 222 of the Treaty on the Functioning of the European Union
Without prejudice to the measures adopted by the Union to comply with its solidarity obligation towards a Member State which is the object of a terrorist attack or the victim of natural or man-made disaster, none of the provisions of Article 222 is intended to affect the right of another Member State to choose the most appropriate means to comply with its own solidarity obligation towards that Member State.
***
Competence
Let us return to civil protection (Article 196 TFEU).
In the general classification of EU competence in different policy areas, civil protection appears among the seven policy areas of supporting, coordinating or supplementing action, in Article 6(f) TFEU:
Article 6 TFEU
The Union shall have competence to carry out actions to support, coordinate or supplement the actions of the Member States. The areas of such action shall, at European level, be:
(a) protection and improvement of human health;
(b) industry;
(c) culture;
(d) tourism;
(e) education, vocational training, youth and sport;
(f) civil protection;
(g) administrative cooperation.
***
Civil protection summary
The Commission’s Scadplus pages offer summaries of legislation in different areas of EU policy. The web page Civil protection offers links to relevant civil protection issues:
http://europa.eu/scadplus/leg/en/s15007.htm
***
Commission activities
In the European Commission, the Directorate-General Environment and Commissioner Stavros Dimas are responsible for civil protection. The Environment home page is available here:
http://ec.europa.eu/environment/index_en.htm
European Civil Protection is a more precise location for current activities in this field:
http://ec.europa.eu/environment/civil/index.htm
***
Civil Protection Financial Instrument 2007–2013
The centrepiece of continuous EU level action is contained in the Council Decision No 2007/162/EC, Euratom of 5 March 2007 establishing a Civil Protection Financial Instrument, a text with EEA relevance, published OJEU 10.3.2007 L 71/9:
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2007:071:0009:0017:EN:PDF
The legal base is still Article 308 TEC, the flexibility clause, since the Constitutional Treaty had not entered into force and the IGC 2007 leading to the Lisbon Treaty was only being prepared by the German Council Presidency.
Article 1 presents the subject matter of the Civil Protection Financial Instrument from 2007 to 2013 and Article 2 offers a more exact picture of the scope, including related EC legal acts:
Article 1
Subject matter
1. This Decision establishes a Civil Protection Financial Instrument (the Instrument) to support and complement the efforts of the Member States for the protection, primarily of people but also of the environment and property, including cultural heritage, in the event of natural and man-made disasters, acts of terrorism and technological, radiological or environmental accidents and to facilitate reinforced cooperation between the Member States in the field of civil protection.
The Instrument shall cover the period from 1 January 2007 to 31 December 2013.
2. This Decision lays down the rules for the provision of financial assistance for:
(a) actions in the field of the Community mechanism to facilitate reinforced cooperation in civil protection assistance interventions (the Mechanism);
(b) measures to prevent or reduce the effects of an emergency; and
(c) actions designed to enhance the Community's state of preparedness for responses to emergencies, including actions enhancing EU citizens' awareness.
3. This Decision makes special provisions to fund certain transport resources in the event of a major emergency, to facilitate a rapid and effective response thereto.
4. This Decision shall take into account the special needs of isolated, outermost and other regions or islands of the Community in the case of an emergency.
Article 2
Scope
1. This Decision shall apply to preventive and preparedness measures for all kinds of emergencies inside the Community and in countries participating on the basis of Article 7.
2. This Decision shall apply to actions to assist with the response to the immediate consequences of a major emergency regardless of its nature, including the response to accidental marine pollution emergencies through the Mechanism, inside or outside the Community, where a request is made for assistance in accordance with the Mechanism.
3. This Decision shall not apply to the following:
(a) actions falling under Regulation (EC) No 1717/2006;
(b) actions and measures falling under Community legislation concerning Community action programmes in the field of health;
(c) actions and measures falling under Decision No 1926/2006/EC;
(d) actions falling under Decision 2007/124/EC, Euratom;
(e) actions falling under Regulation (EC) No 1257/96, without prejudice to Article 4(2)(c) of this Decision;
(f) actions falling under Regulation (EC) No 1406/2002.
***
Mechanism for civil protection assistance interventions
Even under the current decision-making constraints, the EU member states have realised the importance of being able to respond quickly and resourcefully to disasters affecting EU citizens.
The EC’s previous Mechanism for civil protection assistance intervention (2001/792/EC, Euratom) was beefed up and recast in 2007.
Council Decision 2007/779/EC, Euratom of 8 November 2007 establishing a Community Civil Protection Mechanism (recast), text with EEA relevance, published OJEU 1.12.2007 L 314/9, is available here:
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2007:314:0009:0019:EN:PDF
The aim of the Community Mechanism is to facilitate reinforced cooperation between the Community and the Member States in civil protection assistance intervention in the event of major emergencies, or the imminent threat thereof.
The Mechanism covers primarily people but also the environment and property, including cultural heritage, in the event of natural and man-made disasters, acts of terrorism and, technological, radiological or environmental accidents, including accidental marine pollution, occurring inside or outside the Community.
The Mechanism takes account of the special needs of the isolated, outermost and other regions or islands of the Community.
The Mechanism consists of a series of elements and actions including:
1. the identification of intervention teams and other intervention support available in Member States for assistance intervention in the event of emergencies;
2. the setting-up and implementation of a training programme for intervention teams and other intervention support, and for experts for the teams responsible for assessment and/or coordination;
3. workshops, seminars and pilot projects on major aspects of interventions;
4. the establishment and dispatch of assessment and/or coordination teams;
5. the establishment and management of a Monitoring and Information Centre (MIC), which is accessible and able to react immediately 24 hours a day and serving the Member States and the Commission for the purposes of the Mechanism;
6. the establishment and management of a Common Emergency Communication and Information System (CECIS) to enable communication and sharing of information between the MIC and the contact points of the Member States;
7. contributing to the development of detection and early warning systems for disasters which may affect the territory of the Member States, in order to enable a rapid response by the Member States and the Community, as well as to their establishment through studies and assessments on the need for and feasibility of those systems and through actions to promote their interlinkage and their linkage to the MIC and the CECIS:
8. supporting Member States in obtaining access to equipment and transport resources by:
(a) providing and sharing information on equipment and transport resources that can be made available by the Member States, with a view to facilitating the pooling of such equipment or transport resources;
(b) assisting Member States to identify, and facilitating their access to, transport resources that may be available from other sources, including the commercial market;
(c) assisting Member States to identify equipment that may be available from other sources including the commercial market;
9. complementing the transport provided by Member States by providing additional transport resources necessary for ensuring a rapid response to major emergencies;
10. supporting consular assistance to EU citizens in major emergencies in third countries regarding civil protection activities if requested by the consular authorities of the Member States;
11. other supporting and complementary action necessary in the framework of the Mechanism as mentioned in Article 4 of Council Decision 2007/162/EC, Euratom of 5 March 2007 establishing a Civil Protection Financial Instrument (Article 1).
***
Effective civil protection is a core element of solidarity between EU nations and citizens. The Lisbon Treaty would improve the prospects.
Ralf Grahn
EU Law: Civil protection
The EU treaties and institutions are the bricks, but solidarity is the mortar of European integration.
Cooperation between member states and European Union action to protect EU citizens against natural or man-made disasters is one of the improvements of the Treaty of Lisbon.
On 9 May 1950 French foreign minister Robert Schuman said: 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.
Civil protection is an area where the Lisbon Treaty brings European reality one step closer to the words of the Schuman declaration.
***
TEC
There is no Title on civil protetion 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, with a view to the operation of the common market and requiring unanimous decision by the Council. The European Parliament is only consulted.
Still, civil protection is not completely forgotten. 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.
***
Draft Constitution
In Article III-184 of the draft Constitution the European Convention proposed a new legal base to improve protection against natural or man-made disasters within the European Union:
SECTION 5
Civil protection
Article III-184 Draft Constitution
1. The Union shall encourage cooperation between Member States in order to improve the effectiveness of systems for preventing and protecting against natural or man-made disasters within the Union.
Union action shall aim to:
(a) support and complement Member States' action at national, regional and local level in risk prevention, in preparing their civil-protection personnel and in responding to natural or man-made disasters;
(b) promote swift, effective operational cooperation between national civil-protection services;
(c) promote consistency in international civil-protection work.
2. The measures necessary to help achieve the objectives referred to in paragraph 1 shall be enacted in European laws or framework laws, excluding any harmonisation of the laws and regulations of the Member States.
-----
In conjunction with this, you could read the new Solidarity clause Article I-42, primarily aimed at terrorist attacks, and Article III-231 Implementation of the solidarity clause, proposed by the European Convention.
***
Constitutional Treaty
The IGC 2004 took over the proposal by the European Convention. Article III-281 of the Constitution on civil protection:
SECTION 6
CIVIL PROTECTION
Article III_284 Constitution
1. The Union shall encourage cooperation between Member States in order to improve the effectiveness of systems for preventing and protecting against natural or man-made disasters.
Union action shall aim to:
(a) support and complement Member States' action at national, regional and local level in risk prevention, in preparing their civil_protection personnel and in responding to natural or man_made disasters within the Union;
(b) promote swift, effective operational cooperation within the Union between national civil_protection services;
(c) promote consistency in international civil protection work.
2. European laws or framework laws shall establish the measures necessary to help achieve the objectives referred to in paragraph 1, excluding any harmonisation of the laws and regulations of the Member States.
-----
You could read Article I-43 Solidarity clause and Article III-329 Implementation of the solidarity clause of the Constitutional Treaty.
***
Original Lisbon Treaty (ToL)
Article 2, point 149 inserted a new Title XXII Civil protection and a new Article 176c (OJEU 17.12.2007 C 306/89–90):
CIVIL PROTECTION
149) The following new Title XXII and new Article 176 C shall be inserted:
‘TITLE XXII
CIVIL PROTECTION
Article 176 C
1. The Union shall encourage cooperation between Member States in order to improve the effectiveness of systems for preventing and protecting against natural or man-made disasters.
Union action shall aim to:
(a) support and complement Member States' action at national, regional and local level in risk prevention, in preparing their civil-protection personnel and in responding to natural or man-made disasters within the Union;
(b) promote swift, effective operational cooperation within the Union between national civilprotection services;
(c) promote consistency in international civil-protection work.
2. The European Parliament and the Council, acting in accordance with the ordinary legislative procedure, shall establish the measures necessary to help achieve the objectives referred to in paragraph 1, excluding any harmonisation of the laws and regulations of the Member States.’.
***
Renumbering the Treaty of Lisbon (ToL)
The Table of equivalences of the original Treaty of Lisbon tells us that the new Title XXII Civil protection in the TFEU (ToL) was renumbered Title XXIII Civil protection in the consolidated version of the Lisbon Treaty.
Article 176c TFEU (ToL) was renumbered Article 196 TFEU in the consolidated version of the Lisbon Treaty (OJEU 17.12.2007 C 306/218).
***
Lisbon Treaty consolidated
Article 196 TFEU
Article 196 TFEU appears like this in the consolidated version of the Treaty of Lisbon (OJEU 9.5.2008 C 115/135–136):
TITLE XXIII
CIVIL PROTECTION
Article 196 TFEU
1. The Union shall encourage cooperation between Member States in order to improve the effectiveness of systems for preventing and protecting against natural or man-made disasters.
Union action shall aim to:
(a) support and complement Member States' action at national, regional and local level in risk prevention, in preparing their civil-protection personnel and in responding to natural or man-made disasters within the Union;
(b) promote swift, effective operational cooperation within the Union between national civil-protection services;
(c) promote consistency in international civil-protection work.
2. The European Parliament and the Council, acting in accordance with the ordinary legislative procedure shall establish the measures necessary to help achieve the objectives referred to in paragraph 1, excluding any harmonisation of the laws and regulations of the Member States.
***
Lisbon Treaty changes
The Lisbon Treaty would give EU measures against natural and man-made disasters a new legal base. The ordinary legislative procedure would apply, enabling a qualified Council majority to get things done. The European Parliament would participate as an equal co-legislator.
Ralf Grahn
Cooperation between member states and European Union action to protect EU citizens against natural or man-made disasters is one of the improvements of the Treaty of Lisbon.
On 9 May 1950 French foreign minister Robert Schuman said: 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.
Civil protection is an area where the Lisbon Treaty brings European reality one step closer to the words of the Schuman declaration.
***
TEC
There is no Title on civil protetion 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, with a view to the operation of the common market and requiring unanimous decision by the Council. The European Parliament is only consulted.
Still, civil protection is not completely forgotten. 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.
***
Draft Constitution
In Article III-184 of the draft Constitution the European Convention proposed a new legal base to improve protection against natural or man-made disasters within the European Union:
SECTION 5
Civil protection
Article III-184 Draft Constitution
1. The Union shall encourage cooperation between Member States in order to improve the effectiveness of systems for preventing and protecting against natural or man-made disasters within the Union.
Union action shall aim to:
(a) support and complement Member States' action at national, regional and local level in risk prevention, in preparing their civil-protection personnel and in responding to natural or man-made disasters;
(b) promote swift, effective operational cooperation between national civil-protection services;
(c) promote consistency in international civil-protection work.
2. The measures necessary to help achieve the objectives referred to in paragraph 1 shall be enacted in European laws or framework laws, excluding any harmonisation of the laws and regulations of the Member States.
-----
In conjunction with this, you could read the new Solidarity clause Article I-42, primarily aimed at terrorist attacks, and Article III-231 Implementation of the solidarity clause, proposed by the European Convention.
***
Constitutional Treaty
The IGC 2004 took over the proposal by the European Convention. Article III-281 of the Constitution on civil protection:
SECTION 6
CIVIL PROTECTION
Article III_284 Constitution
1. The Union shall encourage cooperation between Member States in order to improve the effectiveness of systems for preventing and protecting against natural or man-made disasters.
Union action shall aim to:
(a) support and complement Member States' action at national, regional and local level in risk prevention, in preparing their civil_protection personnel and in responding to natural or man_made disasters within the Union;
(b) promote swift, effective operational cooperation within the Union between national civil_protection services;
(c) promote consistency in international civil protection work.
2. European laws or framework laws shall establish the measures necessary to help achieve the objectives referred to in paragraph 1, excluding any harmonisation of the laws and regulations of the Member States.
-----
You could read Article I-43 Solidarity clause and Article III-329 Implementation of the solidarity clause of the Constitutional Treaty.
***
Original Lisbon Treaty (ToL)
Article 2, point 149 inserted a new Title XXII Civil protection and a new Article 176c (OJEU 17.12.2007 C 306/89–90):
CIVIL PROTECTION
149) The following new Title XXII and new Article 176 C shall be inserted:
‘TITLE XXII
CIVIL PROTECTION
Article 176 C
1. The Union shall encourage cooperation between Member States in order to improve the effectiveness of systems for preventing and protecting against natural or man-made disasters.
Union action shall aim to:
(a) support and complement Member States' action at national, regional and local level in risk prevention, in preparing their civil-protection personnel and in responding to natural or man-made disasters within the Union;
(b) promote swift, effective operational cooperation within the Union between national civilprotection services;
(c) promote consistency in international civil-protection work.
2. The European Parliament and the Council, acting in accordance with the ordinary legislative procedure, shall establish the measures necessary to help achieve the objectives referred to in paragraph 1, excluding any harmonisation of the laws and regulations of the Member States.’.
***
Renumbering the Treaty of Lisbon (ToL)
The Table of equivalences of the original Treaty of Lisbon tells us that the new Title XXII Civil protection in the TFEU (ToL) was renumbered Title XXIII Civil protection in the consolidated version of the Lisbon Treaty.
Article 176c TFEU (ToL) was renumbered Article 196 TFEU in the consolidated version of the Lisbon Treaty (OJEU 17.12.2007 C 306/218).
***
Lisbon Treaty consolidated
Article 196 TFEU
Article 196 TFEU appears like this in the consolidated version of the Treaty of Lisbon (OJEU 9.5.2008 C 115/135–136):
TITLE XXIII
CIVIL PROTECTION
Article 196 TFEU
1. The Union shall encourage cooperation between Member States in order to improve the effectiveness of systems for preventing and protecting against natural or man-made disasters.
Union action shall aim to:
(a) support and complement Member States' action at national, regional and local level in risk prevention, in preparing their civil-protection personnel and in responding to natural or man-made disasters within the Union;
(b) promote swift, effective operational cooperation within the Union between national civil-protection services;
(c) promote consistency in international civil-protection work.
2. The European Parliament and the Council, acting in accordance with the ordinary legislative procedure shall establish the measures necessary to help achieve the objectives referred to in paragraph 1, excluding any harmonisation of the laws and regulations of the Member States.
***
Lisbon Treaty changes
The Lisbon Treaty would give EU measures against natural and man-made disasters a new legal base. The ordinary legislative procedure would apply, enabling a qualified Council majority to get things done. The European Parliament would participate as an equal co-legislator.
Ralf Grahn
EU defence transfer licenses
The Defence Transfers Directive, officially Directive 2009/.../EC of the European Parliament and of the Council on simplifying terms and conditions of transfers of defence-related products within the Community, creates a common license framework for the member states of the European Union.
In principle, the transfer of defence-related products requires prior authorisation, even between the EU member states.
The member states can exempt certain transfers from the licensing requirement, for instance when the recipient is a government or its armed forces, the EU, NATO and another intergovernmental organisation (Article 4).
When authorisation is needed, the Defence Transfers Directive offers the member states two options aimed at reducing the bureaucracy of individual transfer licenses: general and global transfer licenses.
The following presentation is only a rough sketch. For detail, you have to read the Directive.
***
General transfer licences
Member States shall publish general transfer licences directly granting authorisation to suppliers, established on their respective territories, who fulfil the terms and conditions attached to the licence, to perform transfers of defence-related products to be specified in the licence to a category or categories of recipients located in another member state.
The main aim of the general transfer license is to cover procurement by the armed forces of an EU member state or a contracting authority buying exclusively for the armed forces, but there are other grounds too (Article 5).
***
Global transfer licenses
Global transfer licences are granted for three years, and they can be renewed. The global transfer license covers an individual supplier of products to recipients in one or more EU member states.
The licensing member state determines in each global transfer licence the defence-related products or categories of products covered by the global transfer licence, as well as the authorised recipients or category of recipients (Article 6).
***
Individual transfer licences
If neither a general nor a global transfer license applies, the last resort is an individual transfer license (if any).
The member state grants an individual transfer licence to an individual supplier authorising one transfer of a specified quantity of specified defence-related products to be transmitted in one or several shipments to one recipient in one or more of the following cases:
a) where the request for a licence is limited to one transfer;
b) where it is necessary for the protection of its essential security interests, or for the protection of public policy;
c) where it is necessary for compliance with international obligations and commitments of Member States;
d) where a Member State has serious reasons to believe that the supplier will not be able to comply with all the terms and conditions necessary to grant it a global licence (Article 7).
***
The text of the Defence Transfers Directive, adopted by the European Parliament, is available here:
http://www.europarl.europa.eu/sides/getDoc.do;jsessionid=FE68FF66A91E1C708351395837549126.node1?pubRef=-//EP//TEXT+TA+P6-TA-2008-0603+0+DOC+XML+V0//EN#BKMD-29
Ralf Grahn
In principle, the transfer of defence-related products requires prior authorisation, even between the EU member states.
The member states can exempt certain transfers from the licensing requirement, for instance when the recipient is a government or its armed forces, the EU, NATO and another intergovernmental organisation (Article 4).
When authorisation is needed, the Defence Transfers Directive offers the member states two options aimed at reducing the bureaucracy of individual transfer licenses: general and global transfer licenses.
The following presentation is only a rough sketch. For detail, you have to read the Directive.
***
General transfer licences
Member States shall publish general transfer licences directly granting authorisation to suppliers, established on their respective territories, who fulfil the terms and conditions attached to the licence, to perform transfers of defence-related products to be specified in the licence to a category or categories of recipients located in another member state.
The main aim of the general transfer license is to cover procurement by the armed forces of an EU member state or a contracting authority buying exclusively for the armed forces, but there are other grounds too (Article 5).
***
Global transfer licenses
Global transfer licences are granted for three years, and they can be renewed. The global transfer license covers an individual supplier of products to recipients in one or more EU member states.
The licensing member state determines in each global transfer licence the defence-related products or categories of products covered by the global transfer licence, as well as the authorised recipients or category of recipients (Article 6).
***
Individual transfer licences
If neither a general nor a global transfer license applies, the last resort is an individual transfer license (if any).
The member state grants an individual transfer licence to an individual supplier authorising one transfer of a specified quantity of specified defence-related products to be transmitted in one or several shipments to one recipient in one or more of the following cases:
a) where the request for a licence is limited to one transfer;
b) where it is necessary for the protection of its essential security interests, or for the protection of public policy;
c) where it is necessary for compliance with international obligations and commitments of Member States;
d) where a Member State has serious reasons to believe that the supplier will not be able to comply with all the terms and conditions necessary to grant it a global licence (Article 7).
***
The text of the Defence Transfers Directive, adopted by the European Parliament, is available here:
http://www.europarl.europa.eu/sides/getDoc.do;jsessionid=FE68FF66A91E1C708351395837549126.node1?pubRef=-//EP//TEXT+TA+P6-TA-2008-0603+0+DOC+XML+V0//EN#BKMD-29
Ralf Grahn
Monday, 19 January 2009
EU Law: Tourism
Should the same internal market rules (and others) apply to all businesses, or should certain sectors be singled out for special treatment in the European Union?
Tourism is now mentioned in the treaty, but without a legal base for specific action. The Lisbon Treaty would allow complementary action with regard to the tourism sector.
***
TEC
There is no Title on tourism 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.
Still, tourism is not completely forgotten. Article 3(1)(u) TEC lists ‘measures in the spheres of energy, civil protection and tourism’ among the activities of the European Community.
***
Constitutional Treaty
This is one of the rare instances, where the intergovernmental conference (IGC 2004) made a positive contribution to the Constitutional Treaty.
The IGC 2004 added a Section and an Article on tourism to the proposal by the European Convention. Article III-281 of the Constitution:
SECTION 4
TOURISM
Article III_281 Constitution
1. The Union shall complement the action of the Member States in the tourism sector, in particular by promoting the competitiveness of Union undertakings in that sector.
To that end, Union action shall be aimed at:
(a) encouraging the creation of a favourable environment for the development of undertakings in this sector;
(b) promoting cooperation between the Member States, particularly by the exchange of good practice;
2. European laws or framework laws shall establish specific measures to complement actions within the Member States to achieve the objectives referred to in this Article, excluding any harmonisation of the laws and regulations of the Member States.
***
Original Lisbon Treaty (ToL)
Article 2, point 148 inserted a new Title XXI Tourism and a new Article 176b (OJEU 17.12.2007 C 306/89):
TOURISM
148) Title XXI shall be replaced by the following new Title and new Article 176 B:
‘TITLE XXI
TOURISM
Article 176 B
1. The Union shall complement the action of the Member States in the tourism sector, in particular by promoting the competitiveness of Union undertakings in that sector.
To that end, Union action shall be aimed at:
(a) encouraging the creation of a favourable environment for the development of undertakings in this sector;
(b) promoting cooperation between the Member States, particularly by the exchange of good practice.
2. The European Parliament and the Council, acting in accordance with the ordinary legislative procedure, shall establish specific measures to complement actions within the Member States to achieve the objectives referred to in this Article, excluding any harmonisation of the laws and regulations of the Member States.’.
***
Renumbering the Treaty of Lisbon (ToL)
The Table of equivalences of the original Treaty of Lisbon tells us that the new Title XXI Tourism in the TFEU (ToL) was renumbered Title XXII Tourism in the consolidated version of the Lisbon Treaty.
Article 176b TFEU (ToL) was renumbered Article 195 TFEU in the consolidated version of the Lisbon Treaty (OJEU 17.12.2007 C 306/218).
***
Lisbon Treaty consolidated
Article 195 TFEU
The Lisbon Treaty adjusted the terminology of the Constitutional Treaty. Article 195 TFEU appears like this in the consolidated version of the Treaty of Lisbon (OJEU 9.5.2008 C 115/134):
TITLE XXII
TOURISM
Article 195 TFEU
1. The Union shall complement the action of the Member States in the tourism sector, in particular by promoting the competitiveness of Union undertakings in that sector.
To that end, Union action shall be aimed at:
(a) encouraging the creation of a favourable environment for the development of undertakings in this sector;
(b) promoting cooperation between the Member States, particularly by the exchange of good practice.
2. The European Parliament and the Council, acting in accordance with the ordinary legislative procedure, shall establish specific measures to complement actions within the Member States to achieve the objectives referred to in this Article, excluding any harmonisation of the laws and regulations of the Member States.
***
Competence
In the general classification of EU competence in different policy areas, tourism appears among the supporting, coordinating or supplementing actions in Article 6(d) TFEU.
With a legal base for tourism, complementing actions can be based squarely on the needs of the sector, instead of having to fit other grounds for action.
***
Tourism summary
The Commission’s Scadplus pages offer summaries of legislation in different areas of EU policy, but actions with effects on tourism have been undertaken in other areas. Therefore the web page Towards a stronger partnership for European Tourism is more general than these pages in general (last update 23 May 2006):
http://europa.eu/scadplus/leg/en/lvb/n26107.htm
***
Commission activities
The Commission’s Directorate-General Enterprise and Industry offers an introductory page on tourism, with further links:
http://ec.europa.eu/enterprise/tourism/index_en.htm
The Commission reminds us that the tourism sector is dominated by small and medium-sized enterprises (SMEs) and that it accounts for 4% of the Community’s GDP, with about 2 million enterprises employing about 4% of the total labour force (representing approximately 8 million jobs). When the links to other sectors are taken into account, the contribution of tourism to GDP is estimated to be around 11% and it provides employment to more than 12% of the labour force (24 million jobs).
More detailed facts about tourism are presented in the Eurostat Tourism Statistics Pocketbook (2008):
http://epp.eurostat.ec.europa.eu/portal/page?_pageid=1073,46587259&_dad=portal&_schema=PORTAL&p_product_code=KS-DS-08-001
Tourism: the European Community’s involvement in tourism is a web page offering a historic overview of EC activities (latest update 6 October 2008):
http://ec.europa.eu/enterprise/tourism/further_reading/index_en.htm
Commission Communications on tourism are available here:
http://ec.europa.eu/enterprise/tourism/documentation/communications/index_en.htm
The practically minded would opt for the latest one. The October 2007 Agenda for a sustainable and competitive European Tourism, as well as links to conclusions the same autumn by the Council and the European Council. There are also detailed reactions to the European Tourism Policy from the European Parliament, available here:
http://ec.europa.eu/enterprise/tourism/documentation/communications/commission_communication_2007/index_en.htm
The Communication (Brussels, 19.10.2007 COM(2007) 621 final) applies the aims of sustainable development to the tourism sector.
Ralf Grahn
Tourism is now mentioned in the treaty, but without a legal base for specific action. The Lisbon Treaty would allow complementary action with regard to the tourism sector.
***
TEC
There is no Title on tourism 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.
Still, tourism is not completely forgotten. Article 3(1)(u) TEC lists ‘measures in the spheres of energy, civil protection and tourism’ among the activities of the European Community.
***
Constitutional Treaty
This is one of the rare instances, where the intergovernmental conference (IGC 2004) made a positive contribution to the Constitutional Treaty.
The IGC 2004 added a Section and an Article on tourism to the proposal by the European Convention. Article III-281 of the Constitution:
SECTION 4
TOURISM
Article III_281 Constitution
1. The Union shall complement the action of the Member States in the tourism sector, in particular by promoting the competitiveness of Union undertakings in that sector.
To that end, Union action shall be aimed at:
(a) encouraging the creation of a favourable environment for the development of undertakings in this sector;
(b) promoting cooperation between the Member States, particularly by the exchange of good practice;
2. European laws or framework laws shall establish specific measures to complement actions within the Member States to achieve the objectives referred to in this Article, excluding any harmonisation of the laws and regulations of the Member States.
***
Original Lisbon Treaty (ToL)
Article 2, point 148 inserted a new Title XXI Tourism and a new Article 176b (OJEU 17.12.2007 C 306/89):
TOURISM
148) Title XXI shall be replaced by the following new Title and new Article 176 B:
‘TITLE XXI
TOURISM
Article 176 B
1. The Union shall complement the action of the Member States in the tourism sector, in particular by promoting the competitiveness of Union undertakings in that sector.
To that end, Union action shall be aimed at:
(a) encouraging the creation of a favourable environment for the development of undertakings in this sector;
(b) promoting cooperation between the Member States, particularly by the exchange of good practice.
2. The European Parliament and the Council, acting in accordance with the ordinary legislative procedure, shall establish specific measures to complement actions within the Member States to achieve the objectives referred to in this Article, excluding any harmonisation of the laws and regulations of the Member States.’.
***
Renumbering the Treaty of Lisbon (ToL)
The Table of equivalences of the original Treaty of Lisbon tells us that the new Title XXI Tourism in the TFEU (ToL) was renumbered Title XXII Tourism in the consolidated version of the Lisbon Treaty.
Article 176b TFEU (ToL) was renumbered Article 195 TFEU in the consolidated version of the Lisbon Treaty (OJEU 17.12.2007 C 306/218).
***
Lisbon Treaty consolidated
Article 195 TFEU
The Lisbon Treaty adjusted the terminology of the Constitutional Treaty. Article 195 TFEU appears like this in the consolidated version of the Treaty of Lisbon (OJEU 9.5.2008 C 115/134):
TITLE XXII
TOURISM
Article 195 TFEU
1. The Union shall complement the action of the Member States in the tourism sector, in particular by promoting the competitiveness of Union undertakings in that sector.
To that end, Union action shall be aimed at:
(a) encouraging the creation of a favourable environment for the development of undertakings in this sector;
(b) promoting cooperation between the Member States, particularly by the exchange of good practice.
2. The European Parliament and the Council, acting in accordance with the ordinary legislative procedure, shall establish specific measures to complement actions within the Member States to achieve the objectives referred to in this Article, excluding any harmonisation of the laws and regulations of the Member States.
***
Competence
In the general classification of EU competence in different policy areas, tourism appears among the supporting, coordinating or supplementing actions in Article 6(d) TFEU.
With a legal base for tourism, complementing actions can be based squarely on the needs of the sector, instead of having to fit other grounds for action.
***
Tourism summary
The Commission’s Scadplus pages offer summaries of legislation in different areas of EU policy, but actions with effects on tourism have been undertaken in other areas. Therefore the web page Towards a stronger partnership for European Tourism is more general than these pages in general (last update 23 May 2006):
http://europa.eu/scadplus/leg/en/lvb/n26107.htm
***
Commission activities
The Commission’s Directorate-General Enterprise and Industry offers an introductory page on tourism, with further links:
http://ec.europa.eu/enterprise/tourism/index_en.htm
The Commission reminds us that the tourism sector is dominated by small and medium-sized enterprises (SMEs) and that it accounts for 4% of the Community’s GDP, with about 2 million enterprises employing about 4% of the total labour force (representing approximately 8 million jobs). When the links to other sectors are taken into account, the contribution of tourism to GDP is estimated to be around 11% and it provides employment to more than 12% of the labour force (24 million jobs).
More detailed facts about tourism are presented in the Eurostat Tourism Statistics Pocketbook (2008):
http://epp.eurostat.ec.europa.eu/portal/page?_pageid=1073,46587259&_dad=portal&_schema=PORTAL&p_product_code=KS-DS-08-001
Tourism: the European Community’s involvement in tourism is a web page offering a historic overview of EC activities (latest update 6 October 2008):
http://ec.europa.eu/enterprise/tourism/further_reading/index_en.htm
Commission Communications on tourism are available here:
http://ec.europa.eu/enterprise/tourism/documentation/communications/index_en.htm
The practically minded would opt for the latest one. The October 2007 Agenda for a sustainable and competitive European Tourism, as well as links to conclusions the same autumn by the Council and the European Council. There are also detailed reactions to the European Tourism Policy from the European Parliament, available here:
http://ec.europa.eu/enterprise/tourism/documentation/communications/commission_communication_2007/index_en.htm
The Communication (Brussels, 19.10.2007 COM(2007) 621 final) applies the aims of sustainable development to the tourism sector.
Ralf Grahn
EU Defence Transfers Directive scope
The aim of new European Community (European Union) Defence Transfers Directive is to cut red tape, reducing waste and delays, when defence-related products are bought and sold within the European Union.
***
The Defence Transfers Directive was adopted by the European Parliament on 16 December 2008. The new Directive is still waiting for first reading (formal adoption) by the Council, but since the amendments have been agreed between the European Parliament and the Council, the EP text should be the same as the one to be published in the Official Journal of the European Union.
The Defence Transfers Directive, officially Directive 2009/.../EC of the European Parliament and of the Council on simplifying terms and conditions of transfers of defence-related products within the Community, is available here:
http://www.europarl.europa.eu/sides/getDoc.do;jsessionid=FE68FF66A91E1C708351395837549126.node1?pubRef=-//EP//TEXT+TA+P6-TA-2008-0603+0+DOC+XML+V0//EN#BKMD-29
***
Related blog posts
We have discussed matters relating to defence and security procurement, national security interests and treaty principles in earlier blog posts, which may be of interest to our readers:
· EU Procurement Directive: Secret contracts and security measures
· EU defence industry and market: Is there a future?
· EU Law: Defence equipment transfers
· EU Law: New Defence Procurement Directive
· EU Law: Defence Transfers Directive
***
Subject matter
Aim
The aim of the new Defence Transfers Directive is to make intra-Community transfers of defence-related products more compatible with the internal market, by simplifying rules and procedures.
Recitals 1 to 4 of the Directive explain the background:
(1) The Treaty provides for the establishment of an internal market, including the abolition between Member States of obstacles to freedom of movement for goods and services, and the institution of a system ensuring that competition in the common market is not distorted.
(2) The Treaty provisions establishing the internal market apply to all goods and services provided against remuneration including defence-related products but do not preclude Member States under certain conditions from taking other measures in individual cases where they consider it necessary to protect essential interests of their security.
(3) The laws, regulations and administrative measures in Member States concerning the transfer of defence-related products within the Community contain disparities, which may impede the free movement of defence-related products and may distort competition within the internal market, hampering innovation, industrial cooperation and the competitiveness of the defence industry in the European Union.
(4) The objectives pursued generally by the laws and regulations of Member States include the preservation of human rights, peace, security and stability through systems of strict control and restriction of exportation and proliferation of defence-related products to third countries as well as to other Member States.
***
Transfer and export policies
The member states of the European Union still decide on their transfer and export policies with regard to defence-related products.
Recitals 6 and 7 explain that the Defence Transfers Directive does not limit the transfer policies or export policies of member states:
(6) Those laws and regulations of Member States therefore need to be harmonised in such a way as to simplify the intra-community transfer of defence-related products in order to ensure the proper functioning of the internal market. This Directive only deals with rules and procedures as far as defence-related products are concerned, and does not consequently affect transfer policies of Member States.
(7) Harmonisation of those laws and regulations of Member States should not prejudice international obligations and commitments of Member States or their discretion as regards policy on the export of defence-related products.
***
Treaty derogations on security grounds
The member states can still evoke their (essential) security interests according to Articles 30 and 296(1)(b) and 296(1)(a) of the Treaty establishing the European Community (TEC), although the provisions and ECJ case law limit the scope of such derogations. In other words, exceptions have to be justified.
The derogations in Article 30 TEC include prohibitions or restrictions on imports, exports or goods in transit on grounds of public policy and public security.
Article 296(1)(b) TEC concerns the protection of essential security interests of a member state in connection with the production or trade in arms, munitions and war material (as defined by the Council on 15 April 1958).
Article 296(1)(a) allows a member state to withhold information, if the disclosure would be contrary to its essential security interests.
Recital 5 of the Defence Transfers Directive acknowledges that there are legitimate exceptions to the free movement of goods and services, on a case by case basis. The treaty derogations still apply, if the conditions are met:
(5) Such restrictions on the movement of defence-related products within the Community cannot be abolished generally through direct application of the principles of free movement of goods and services provided by the Treaty as those restrictions may be justified on a case by case basis in accordance with Articles 30 or 296 of the Treaty, which continue to be applicable by Member States provided their conditions are met.
***
First and second pillar
The Defence Transfers Directive is based on the first pillar (Community pillar), with its internal market rules. The sale of defence-related products within the European Community (European Union) is harmonised to some extent, but matters relating to the common foreign and security policy (CFSP), including the common security and defence policy (CSDP), belong to the intergovernmental second pillar of the European Union.
The fourth paragraph states that the minimum rules of the Directive are no obstacle to further intergovernmental cooperation in this field.
This is in line with the presentation given by Recital 28:
(28) Member States should remain entitled to pursue and further develop their intergovernmental cooperation, whilst respecting the provisions of this Directive.
***
Adopted text
Here is the text of Article 1 of the Defence Transfers Directive, as adopted by the European Parliament:
Article 1
Subject matter
1. The aim of this Directive is to simplify rules and procedures applicable to the intra-Community transfer of defence-related products in order to ensure proper functioning of the internal market.
2. This Directive does not affect the discretion of Member States as regards policy on the export of defence-related products.
3. The application of this Directive shall be subject to Articles 30 and 296 of the Treaty.
4. This Directive does not affect the possibility for Member States to pursue and further develop intergovernmental co-operations, whilst respecting its provisions.
***
Scope
The Defence Transfers Directive applies to intra-Community transfers of defence-related products. These have been listed in the Annex to the Directive.
Recitals 9 and 37 of the Directive express the desire to update the Annex list to be made identical in scope with the Common Military List of the European Union (CML):
(9) This Directive should cover all the defence-related products which correspond to those listed in the Common Military List of the European Union including components and technologies.
(37) The list in the Annex of defence-related products should be updated in strict conformity with the Common Military List of the European Union (CML).
-----
(Footnote 4 referred to the CML as published in 2007, but there is a later update, published OJEU 18.4.2008 C 98/1.)
***
Adopted text
Here is the adopted text of Article 2:
Article 2
Scope
This Directive applies to defence-related products as listed in the Annex.
***
Definitions
Some of the terms of the Defence Transfer Directive are defined in Article 3, but I let the adopted text speak for itself:
Article 3
Definitions
For the purposes of this Directive , the following definitions shall apply:
1) "defence-related product" means any product listed in the Annex;
2) "transfer" means any transmission or movement of a defence-related product from a supplier to a recipient in another Member State;
3) "supplier" means the legal or natural person established within the Community who is legally responsible for a transfer;
4) "recipient" means the legal or natural person established within the Community who is legally responsible for a receipt of a transfer in another Member State;
5) "transfer licence" means an authorisation by a national authority of a Member State for suppliers to transfer defence-related products to a recipient in another Member State;
6) "export licence" means an authorisation to supply defence-related products to a legal or natural person in any third country;
7) "passage through" means the transport of defence-related products through one or more Member States other than the Member State of dispatch and the Member State of destination.
Ralf Grahn
***
The Defence Transfers Directive was adopted by the European Parliament on 16 December 2008. The new Directive is still waiting for first reading (formal adoption) by the Council, but since the amendments have been agreed between the European Parliament and the Council, the EP text should be the same as the one to be published in the Official Journal of the European Union.
The Defence Transfers Directive, officially Directive 2009/.../EC of the European Parliament and of the Council on simplifying terms and conditions of transfers of defence-related products within the Community, is available here:
http://www.europarl.europa.eu/sides/getDoc.do;jsessionid=FE68FF66A91E1C708351395837549126.node1?pubRef=-//EP//TEXT+TA+P6-TA-2008-0603+0+DOC+XML+V0//EN#BKMD-29
***
Related blog posts
We have discussed matters relating to defence and security procurement, national security interests and treaty principles in earlier blog posts, which may be of interest to our readers:
· EU Procurement Directive: Secret contracts and security measures
· EU defence industry and market: Is there a future?
· EU Law: Defence equipment transfers
· EU Law: New Defence Procurement Directive
· EU Law: Defence Transfers Directive
***
Subject matter
Aim
The aim of the new Defence Transfers Directive is to make intra-Community transfers of defence-related products more compatible with the internal market, by simplifying rules and procedures.
Recitals 1 to 4 of the Directive explain the background:
(1) The Treaty provides for the establishment of an internal market, including the abolition between Member States of obstacles to freedom of movement for goods and services, and the institution of a system ensuring that competition in the common market is not distorted.
(2) The Treaty provisions establishing the internal market apply to all goods and services provided against remuneration including defence-related products but do not preclude Member States under certain conditions from taking other measures in individual cases where they consider it necessary to protect essential interests of their security.
(3) The laws, regulations and administrative measures in Member States concerning the transfer of defence-related products within the Community contain disparities, which may impede the free movement of defence-related products and may distort competition within the internal market, hampering innovation, industrial cooperation and the competitiveness of the defence industry in the European Union.
(4) The objectives pursued generally by the laws and regulations of Member States include the preservation of human rights, peace, security and stability through systems of strict control and restriction of exportation and proliferation of defence-related products to third countries as well as to other Member States.
***
Transfer and export policies
The member states of the European Union still decide on their transfer and export policies with regard to defence-related products.
Recitals 6 and 7 explain that the Defence Transfers Directive does not limit the transfer policies or export policies of member states:
(6) Those laws and regulations of Member States therefore need to be harmonised in such a way as to simplify the intra-community transfer of defence-related products in order to ensure the proper functioning of the internal market. This Directive only deals with rules and procedures as far as defence-related products are concerned, and does not consequently affect transfer policies of Member States.
(7) Harmonisation of those laws and regulations of Member States should not prejudice international obligations and commitments of Member States or their discretion as regards policy on the export of defence-related products.
***
Treaty derogations on security grounds
The member states can still evoke their (essential) security interests according to Articles 30 and 296(1)(b) and 296(1)(a) of the Treaty establishing the European Community (TEC), although the provisions and ECJ case law limit the scope of such derogations. In other words, exceptions have to be justified.
The derogations in Article 30 TEC include prohibitions or restrictions on imports, exports or goods in transit on grounds of public policy and public security.
Article 296(1)(b) TEC concerns the protection of essential security interests of a member state in connection with the production or trade in arms, munitions and war material (as defined by the Council on 15 April 1958).
Article 296(1)(a) allows a member state to withhold information, if the disclosure would be contrary to its essential security interests.
Recital 5 of the Defence Transfers Directive acknowledges that there are legitimate exceptions to the free movement of goods and services, on a case by case basis. The treaty derogations still apply, if the conditions are met:
(5) Such restrictions on the movement of defence-related products within the Community cannot be abolished generally through direct application of the principles of free movement of goods and services provided by the Treaty as those restrictions may be justified on a case by case basis in accordance with Articles 30 or 296 of the Treaty, which continue to be applicable by Member States provided their conditions are met.
***
First and second pillar
The Defence Transfers Directive is based on the first pillar (Community pillar), with its internal market rules. The sale of defence-related products within the European Community (European Union) is harmonised to some extent, but matters relating to the common foreign and security policy (CFSP), including the common security and defence policy (CSDP), belong to the intergovernmental second pillar of the European Union.
The fourth paragraph states that the minimum rules of the Directive are no obstacle to further intergovernmental cooperation in this field.
This is in line with the presentation given by Recital 28:
(28) Member States should remain entitled to pursue and further develop their intergovernmental cooperation, whilst respecting the provisions of this Directive.
***
Adopted text
Here is the text of Article 1 of the Defence Transfers Directive, as adopted by the European Parliament:
Article 1
Subject matter
1. The aim of this Directive is to simplify rules and procedures applicable to the intra-Community transfer of defence-related products in order to ensure proper functioning of the internal market.
2. This Directive does not affect the discretion of Member States as regards policy on the export of defence-related products.
3. The application of this Directive shall be subject to Articles 30 and 296 of the Treaty.
4. This Directive does not affect the possibility for Member States to pursue and further develop intergovernmental co-operations, whilst respecting its provisions.
***
Scope
The Defence Transfers Directive applies to intra-Community transfers of defence-related products. These have been listed in the Annex to the Directive.
Recitals 9 and 37 of the Directive express the desire to update the Annex list to be made identical in scope with the Common Military List of the European Union (CML):
(9) This Directive should cover all the defence-related products which correspond to those listed in the Common Military List of the European Union including components and technologies.
(37) The list in the Annex of defence-related products should be updated in strict conformity with the Common Military List of the European Union (CML).
-----
(Footnote 4 referred to the CML as published in 2007, but there is a later update, published OJEU 18.4.2008 C 98/1.)
***
Adopted text
Here is the adopted text of Article 2:
Article 2
Scope
This Directive applies to defence-related products as listed in the Annex.
***
Definitions
Some of the terms of the Defence Transfer Directive are defined in Article 3, but I let the adopted text speak for itself:
Article 3
Definitions
For the purposes of this Directive , the following definitions shall apply:
1) "defence-related product" means any product listed in the Annex;
2) "transfer" means any transmission or movement of a defence-related product from a supplier to a recipient in another Member State;
3) "supplier" means the legal or natural person established within the Community who is legally responsible for a transfer;
4) "recipient" means the legal or natural person established within the Community who is legally responsible for a receipt of a transfer in another Member State;
5) "transfer licence" means an authorisation by a national authority of a Member State for suppliers to transfer defence-related products to a recipient in another Member State;
6) "export licence" means an authorisation to supply defence-related products to a legal or natural person in any third country;
7) "passage through" means the transport of defence-related products through one or more Member States other than the Member State of dispatch and the Member State of destination.
Ralf Grahn
Sunday, 18 January 2009
Energy priorities: European Commission
The gas crisis exposed the vulnerability of the European Union to outside disturbances and lack of interconnection in the energy area.
What is the EC Commission doing to tackle the problems?
***
The Commission’s Legislative and Work Programme 2009, Acting now for a better Europe (Brussels, 5.11.2008 COM(2008) 712 final), deals with Climate Change and Sustainable Europe as the second priority area, after Growth and Jobs.
Climate change is ambitions are presented first, but the programme then continues with more specific energy issues. The objectives are crammed into the following paragraph:
The other key target of the package is to make European energy secure, sustainable and competitive. The hike in energy prices seen in 2008 has again underlined the vulnerability of Europe in terms of energy, and the pressing need to promote energy security. The Commission's Strategic Energy Review will set out an overall strategy for improving energy security, which should be a major focus for 2009. This will include driving ahead with concrete steps on energy efficiency; realising a common objective of interconnection and effective stock management, particularly so that the newer Member States are linked up to the European grid; and a coordinated approach on improving and diversifying supply from outside the Union. It also underlines the importance of securing adoption of proposals on the internal market for gas and electricity, with new arrangements in place to ensure increased competitiveness and appropriate prices, and that national regulators can work together.
Acting now for a better Europe is available here:
http://ec.europa.eu/atwork/programmes/docs/clwp2009_en.pdf
***
EU Strategic Energy Review
The ‘beef’ of the Legislative and Work Programme 2009 was refer the interested reader to the Commission’s (Second) Strategic Energy Review.
Commission web page Second Strategic Energy Review – Securing our Energy Future is available here:
http://ec.europa.eu/energy/strategies/2008/2008_11_ser2_en.htm
The press release Securing your energy future: Commission presents energy security, solidarity and efficiency proposals (IP/08/1696 Brussels, 13 November 2008) offers an overview of the energy package:
http://europa.eu/rapid/pressReleasesAction.do?reference=IP/08/1696&format=HTML&aged=0&language=en&guiLanguage=en
An unofficial version of the coming official proposal is the Communication Second Startegic Energy Review, An EU energy security and solidarity action plan, available here:
http://ec.europa.eu/energy/strategies/2008/doc/2008_11_ser2/strategic_energy_review_communication.pdf
The 21 page Communication presents a more comprehensive picture of the proposals.
The draft Communication is accompanied by two Commission Staff Working Papers, SEC(2008) 2794 and SEC(2008) 2795, with further detail.
Ralf Grahn
P.S. The Work Programme of the Czech EU Council Presidency, quoted in the previous blog post, is available at:
http://www.eu2009.cz/en/czech-presidency/programme-and-priorities/programme-and-priorities-479/
What is the EC Commission doing to tackle the problems?
***
The Commission’s Legislative and Work Programme 2009, Acting now for a better Europe (Brussels, 5.11.2008 COM(2008) 712 final), deals with Climate Change and Sustainable Europe as the second priority area, after Growth and Jobs.
Climate change is ambitions are presented first, but the programme then continues with more specific energy issues. The objectives are crammed into the following paragraph:
The other key target of the package is to make European energy secure, sustainable and competitive. The hike in energy prices seen in 2008 has again underlined the vulnerability of Europe in terms of energy, and the pressing need to promote energy security. The Commission's Strategic Energy Review will set out an overall strategy for improving energy security, which should be a major focus for 2009. This will include driving ahead with concrete steps on energy efficiency; realising a common objective of interconnection and effective stock management, particularly so that the newer Member States are linked up to the European grid; and a coordinated approach on improving and diversifying supply from outside the Union. It also underlines the importance of securing adoption of proposals on the internal market for gas and electricity, with new arrangements in place to ensure increased competitiveness and appropriate prices, and that national regulators can work together.
Acting now for a better Europe is available here:
http://ec.europa.eu/atwork/programmes/docs/clwp2009_en.pdf
***
EU Strategic Energy Review
The ‘beef’ of the Legislative and Work Programme 2009 was refer the interested reader to the Commission’s (Second) Strategic Energy Review.
Commission web page Second Strategic Energy Review – Securing our Energy Future is available here:
http://ec.europa.eu/energy/strategies/2008/2008_11_ser2_en.htm
The press release Securing your energy future: Commission presents energy security, solidarity and efficiency proposals (IP/08/1696 Brussels, 13 November 2008) offers an overview of the energy package:
http://europa.eu/rapid/pressReleasesAction.do?reference=IP/08/1696&format=HTML&aged=0&language=en&guiLanguage=en
An unofficial version of the coming official proposal is the Communication Second Startegic Energy Review, An EU energy security and solidarity action plan, available here:
http://ec.europa.eu/energy/strategies/2008/doc/2008_11_ser2/strategic_energy_review_communication.pdf
The 21 page Communication presents a more comprehensive picture of the proposals.
The draft Communication is accompanied by two Commission Staff Working Papers, SEC(2008) 2794 and SEC(2008) 2795, with further detail.
Ralf Grahn
P.S. The Work Programme of the Czech EU Council Presidency, quoted in the previous blog post, is available at:
http://www.eu2009.cz/en/czech-presidency/programme-and-priorities/programme-and-priorities-479/
Energy priority of Czech EU Council Presidency
One of the three E’s or priorities of the Czech Presidency of the EU Council is Energy, while the other two are the Economy and the European Union in the world.
Even if the Czech Republic chairs the meetings of the Council and the European Council only during six months, the priorities chosen are of strategic importance. The economy is in tatters almost globally. Energy supply and energy markets have taken a beating in the brawl between Russia and Ukraine. Without a more unified and resourceful European Union internationally (as well as internally) the individual member states and the EU citizens will continue to be helpless victims of events.
***
Work Programme
The choice of energy as a priority is a right one, but what does the future hold in store (until 30 June 2009)?
The Work Programme of the Czech Presidency, Europe without Barriers, sets the scene in the following way when it introduces the main points of the priorities:
Energy
A central theme for the European Union during the Czech Presidency will encompass the set of issues related to the energy sector and an active involvement in international negotiations about climate protection after 2012. This is a pressing topic, significantly concerning the economy and having international policy and security implications. Building upon the commitments of the European Council from March 2007 elaborated further in the adopted Climate-Energy Package, the Presidency will strive to prepare a path for reaching a broad international consensus on how to face climate change, which should be reached at the end of 2009 in Copenhagen. It must be stressed that any solution to the climate issue will imply not only certain economic and political costs, but also opportunities.
Energy security is a basic prerequisite for the functioning of the EU economies. In light of the EU’s increasing dependence on energy imports from the surrounding world, it acquires a special urgency. The EU’s goal in this regard is to achieve a greater territorial diversification of suppliers, a broader range of utilised sources, an enhancement of the range of renewable resources and the creation of a truly unified internal energy market in the EU which would allow for solidarity in crisis situations. Overall, the path of reducing the economy’s energy intensity must be pursued, as well as reducing the economy’s impact on the environment at European and global level.
On the basis of the Commission’s analyses and proposals, especially its Strategic Energy Review, the Presidency will proceed in preparing a solution along several lines outlined during the French Presidency. One of them involves energy savings, purposeful substitution of imported and fossil fuels and supporting the investment into new efficient technologies. Another one consists in completing the internal electricity and gas market and its technical and organisational requirements. This includes, above all, completing the missing segments of the existing transmission and transport infrastructure in the EU and coordinating the activities of transmission network operators. An important line involves stabilising relations with the main foreign suppliers of energy sources, primarily in terms of clarifying Russia’s role and developing strong relations with new suppliers. Special importance must be attributed to suppliers from the Caspian region and to the construction of the relevant transport routes.
***
Energy Policy
Later the programme goes into more detail, with huge challenges on many fronts. This is an agenda EU citizens need to watch:
The Czech Presidency will continue to develop the EU energy policy. It will support measures leading to the improvement of the operation of the internal energy market, increasing energy efficiency, effective use of energy sources, saving energy and diversifying supplies from external sources (including transit routes). The chosen measures must fully reflect the EU’s integrated approach towards policy on energy and climate protection. The Presidency will put emphasis on the long-term cost-efficiency and sustainability of the chosen policies, taking account of the particular situation of each Member State. The priorities of the Presidency in relation to the energy sector will be based on the implementation of the Action Plan for the period 2007-2009 ‘An Energy Policy for Europe’. The Presidency will build on the debates on the updated 2nd Strategic Energy Review at the Transport, Telecommunications and Energy Council (TTE), and will incorporate the outcomes of the debates on the Review into the conclusions of the Spring 2009 European Council. The Spring Council should define specific suggestions for further development and begin the preparation of the second Action Plan on Energy Policy for Europe (2010-2012). The Presidency will focus on the need to develop infrastructure, complete the creation of the common energy market, following the approval of the 3rd Energy Package, strengthen coordination in the area of foreign relations, in particular in respect to producers of crude oil and natural gas and in respect to transit countries; and last, but not least, further develop state-of-the art energy technologies.
Energy Security and Reliability
Guaranteeing energy security is a necessary prerequisite for the EU’s economic development and political stability. The Presidency intends to contribute to its strengthening, primarily in three respects: by identifying priority infrastructure projects, based on a medium- and long-term analysis of supply and demand; by supporting the development of energy infrastructure and initiating a debate on the possibilities of improving the existing processes in terms of legislation and implementation; and by creating and developing contractual relationships with third countries and regions, with the aim of ensuring permanent supplies and actively contributing to the diversification of energy sources and transit routes.
With respect to external energy relations, the Czech Presidency will focus on Russia, Ukraine and the Caspian region. The Presidency will also, among other things through the preparation of the Action Plan for 2010–2012, actively promote an overall strengthening of the dialogue with the countries of the Caspian Sea region, while implementing the EU’s common external energy policy. During the Czech Presidency, a ‘Southern Corridor Summit’ on energy will be organised, emphasising the strategic significance of the producer and transit countries of this region. In respect to Russia, it will be necessary to address all aspects of Russia’s role as the supplier of energy to EU markets. The Czech Presidency intends to organise an extraordinary meeting of the EU-Russia Permanent Partnership Council and an EU-Russia summit in May. In the case of Ukraine, the debate will focus on issues associated with secure and reliable energy transit. The Presidency will support any activities conducive to a greater diversification of energy sources and energy supply modes for EU Member States.
The Presidency will support activities leading to the completion of the construction of the missing segments in the existing energy transmission and transport infrastructure within the EU, and improved coordination of the transmission system operators. As part of the final negotiations on the 3rd Liberalisation Package, the Presidency intends to promote the development of coordination mechanisms for the European Network of Transmission/System Operators for electricity and gas (ENTSO-E, ENTSO-G) which will enable their daily communication and prevent energy supply outages. The Czech Presidency maintains that the future security and reliability of electricity supply via the European transmission network will also depend on the balanced operation of different types of power plants.
The Czech Presidency will try to reach an agreement on the review of rules applicable to the creation of emergency crude oil and petroleum products stocks. The legislation should make sure that in case of an outage of crude oil supplies, each Member State should have emergency stocks at its disposal.
Internal Market of Electricity and Natural Gas
The Czech Presidency considers the creation of a transparent, stable, efficient and interconnected internal electricity and gas market to be a necessary prerequisite for a secure, sustainable and competitive energy supply. The completion of discussions on the 3rd Liberalisation Package, and reaching an agreement on it within the term of the present European Parliament, is one of the main tasks of the Presidency. In connection with the regular Annual Report of the European Commission, the Strategic Energy Review, and the Green Paper on Trans-European Energy Networks, the Presidency will pay due attention to the issue of investments and other issues related to the completion of the construction of the required transmission and transport capacity within the Member States. The Czech Presidency considers this issue to be one of the key areas for the completion of the creation of the common market. Only a completed and fully operational internal market in electricity and gas will create a predictable and stable environment for the EU, which is necessary for investments and cross-border cooperation. The Presidency will open a debate on the issue of the possible introduction of a single transparent tariff for the international transmission of electricity for the purposes of both the internal market and international trade in electricity in Europe. Such a tariff would be a payment to benefit the integrity and reinforcement of Trans-European Energy Network (the European power grid). Regarding the internal electricity market and the enhancement of energy security, the Presidency will organise a conference in Ostrava at the end of January 2009, on the theme Ensuring Energy Security of EU Member States on the Common Electricity Market.
Energy Efficiency and Low-Carbon Energy Sources
The enhancement of energy efficiency and its economical use is one of the key means towards strengthening energy security, an important pillar of the ambitious policy on tackling climate change and a tool for promoting the competitiveness of enterprises. The Presidency will therefore continue to discuss specific consumption-related measures (the labelling of household appliances and tyres with energy labels and increasing the energy efficiency of buildings) and try to conclude the revised proposal for a framework directive determining requirements for the ‘Eco-design’ of products at first reading.
The Presidency will support a critical and open debate on all available energy sources and their economical use in line with the EU’s climate protection commitments. In doing so, it will focus on the support for new technologies, energy savings, the debate about the opportunities and risks associated with the use of nuclear energy, the issue of the opportunities and risks associated with the use of biofuels, and last but not least, the impacts of wind energy production on transmission network stability. Along these lines, it will promote the activities of the Nuclear Forum and maximum application of the results of the work of the High Level Group on Nuclear Safety.
The Czech Presidency will participate in the debate on supporting the use of clean coal technology and demonstration projects for the system of capturing and storing carbon emissions (CCS technology). In the first half of 2009, a debate will be held on the implementation of the European Strategic Energy Technology Plan (SET-Plan). The Presidency will support the translation of the SET-Plan into practical steps and initiatives, including the strengthening of research and development and the development of new forms of cooperation. From the perspective of the Czech Presidency, the EU should play a leading role in the development of these technologies.
***
Convincing crisis
The Czech Presidency of the EU Council quickly had to take on the crisis generated by the conflict between Russia and Ukraine, which hit several UE member states severely. The reliable supply and continuous transit of gas, as well as the strategic importance of the rest of the energy programme, could hardly have been illustrated more clearly.
Now is the time to act on the good intentions, including the institutional deficiencies hampering the EU’s progress internally and internationally.
Although far from enough, ratification of the Lisbon Treaty would send a clear signal that the Czech Presidency takes itself seriously.
Ralf Grahn
Even if the Czech Republic chairs the meetings of the Council and the European Council only during six months, the priorities chosen are of strategic importance. The economy is in tatters almost globally. Energy supply and energy markets have taken a beating in the brawl between Russia and Ukraine. Without a more unified and resourceful European Union internationally (as well as internally) the individual member states and the EU citizens will continue to be helpless victims of events.
***
Work Programme
The choice of energy as a priority is a right one, but what does the future hold in store (until 30 June 2009)?
The Work Programme of the Czech Presidency, Europe without Barriers, sets the scene in the following way when it introduces the main points of the priorities:
Energy
A central theme for the European Union during the Czech Presidency will encompass the set of issues related to the energy sector and an active involvement in international negotiations about climate protection after 2012. This is a pressing topic, significantly concerning the economy and having international policy and security implications. Building upon the commitments of the European Council from March 2007 elaborated further in the adopted Climate-Energy Package, the Presidency will strive to prepare a path for reaching a broad international consensus on how to face climate change, which should be reached at the end of 2009 in Copenhagen. It must be stressed that any solution to the climate issue will imply not only certain economic and political costs, but also opportunities.
Energy security is a basic prerequisite for the functioning of the EU economies. In light of the EU’s increasing dependence on energy imports from the surrounding world, it acquires a special urgency. The EU’s goal in this regard is to achieve a greater territorial diversification of suppliers, a broader range of utilised sources, an enhancement of the range of renewable resources and the creation of a truly unified internal energy market in the EU which would allow for solidarity in crisis situations. Overall, the path of reducing the economy’s energy intensity must be pursued, as well as reducing the economy’s impact on the environment at European and global level.
On the basis of the Commission’s analyses and proposals, especially its Strategic Energy Review, the Presidency will proceed in preparing a solution along several lines outlined during the French Presidency. One of them involves energy savings, purposeful substitution of imported and fossil fuels and supporting the investment into new efficient technologies. Another one consists in completing the internal electricity and gas market and its technical and organisational requirements. This includes, above all, completing the missing segments of the existing transmission and transport infrastructure in the EU and coordinating the activities of transmission network operators. An important line involves stabilising relations with the main foreign suppliers of energy sources, primarily in terms of clarifying Russia’s role and developing strong relations with new suppliers. Special importance must be attributed to suppliers from the Caspian region and to the construction of the relevant transport routes.
***
Energy Policy
Later the programme goes into more detail, with huge challenges on many fronts. This is an agenda EU citizens need to watch:
The Czech Presidency will continue to develop the EU energy policy. It will support measures leading to the improvement of the operation of the internal energy market, increasing energy efficiency, effective use of energy sources, saving energy and diversifying supplies from external sources (including transit routes). The chosen measures must fully reflect the EU’s integrated approach towards policy on energy and climate protection. The Presidency will put emphasis on the long-term cost-efficiency and sustainability of the chosen policies, taking account of the particular situation of each Member State. The priorities of the Presidency in relation to the energy sector will be based on the implementation of the Action Plan for the period 2007-2009 ‘An Energy Policy for Europe’. The Presidency will build on the debates on the updated 2nd Strategic Energy Review at the Transport, Telecommunications and Energy Council (TTE), and will incorporate the outcomes of the debates on the Review into the conclusions of the Spring 2009 European Council. The Spring Council should define specific suggestions for further development and begin the preparation of the second Action Plan on Energy Policy for Europe (2010-2012). The Presidency will focus on the need to develop infrastructure, complete the creation of the common energy market, following the approval of the 3rd Energy Package, strengthen coordination in the area of foreign relations, in particular in respect to producers of crude oil and natural gas and in respect to transit countries; and last, but not least, further develop state-of-the art energy technologies.
Energy Security and Reliability
Guaranteeing energy security is a necessary prerequisite for the EU’s economic development and political stability. The Presidency intends to contribute to its strengthening, primarily in three respects: by identifying priority infrastructure projects, based on a medium- and long-term analysis of supply and demand; by supporting the development of energy infrastructure and initiating a debate on the possibilities of improving the existing processes in terms of legislation and implementation; and by creating and developing contractual relationships with third countries and regions, with the aim of ensuring permanent supplies and actively contributing to the diversification of energy sources and transit routes.
With respect to external energy relations, the Czech Presidency will focus on Russia, Ukraine and the Caspian region. The Presidency will also, among other things through the preparation of the Action Plan for 2010–2012, actively promote an overall strengthening of the dialogue with the countries of the Caspian Sea region, while implementing the EU’s common external energy policy. During the Czech Presidency, a ‘Southern Corridor Summit’ on energy will be organised, emphasising the strategic significance of the producer and transit countries of this region. In respect to Russia, it will be necessary to address all aspects of Russia’s role as the supplier of energy to EU markets. The Czech Presidency intends to organise an extraordinary meeting of the EU-Russia Permanent Partnership Council and an EU-Russia summit in May. In the case of Ukraine, the debate will focus on issues associated with secure and reliable energy transit. The Presidency will support any activities conducive to a greater diversification of energy sources and energy supply modes for EU Member States.
The Presidency will support activities leading to the completion of the construction of the missing segments in the existing energy transmission and transport infrastructure within the EU, and improved coordination of the transmission system operators. As part of the final negotiations on the 3rd Liberalisation Package, the Presidency intends to promote the development of coordination mechanisms for the European Network of Transmission/System Operators for electricity and gas (ENTSO-E, ENTSO-G) which will enable their daily communication and prevent energy supply outages. The Czech Presidency maintains that the future security and reliability of electricity supply via the European transmission network will also depend on the balanced operation of different types of power plants.
The Czech Presidency will try to reach an agreement on the review of rules applicable to the creation of emergency crude oil and petroleum products stocks. The legislation should make sure that in case of an outage of crude oil supplies, each Member State should have emergency stocks at its disposal.
Internal Market of Electricity and Natural Gas
The Czech Presidency considers the creation of a transparent, stable, efficient and interconnected internal electricity and gas market to be a necessary prerequisite for a secure, sustainable and competitive energy supply. The completion of discussions on the 3rd Liberalisation Package, and reaching an agreement on it within the term of the present European Parliament, is one of the main tasks of the Presidency. In connection with the regular Annual Report of the European Commission, the Strategic Energy Review, and the Green Paper on Trans-European Energy Networks, the Presidency will pay due attention to the issue of investments and other issues related to the completion of the construction of the required transmission and transport capacity within the Member States. The Czech Presidency considers this issue to be one of the key areas for the completion of the creation of the common market. Only a completed and fully operational internal market in electricity and gas will create a predictable and stable environment for the EU, which is necessary for investments and cross-border cooperation. The Presidency will open a debate on the issue of the possible introduction of a single transparent tariff for the international transmission of electricity for the purposes of both the internal market and international trade in electricity in Europe. Such a tariff would be a payment to benefit the integrity and reinforcement of Trans-European Energy Network (the European power grid). Regarding the internal electricity market and the enhancement of energy security, the Presidency will organise a conference in Ostrava at the end of January 2009, on the theme Ensuring Energy Security of EU Member States on the Common Electricity Market.
Energy Efficiency and Low-Carbon Energy Sources
The enhancement of energy efficiency and its economical use is one of the key means towards strengthening energy security, an important pillar of the ambitious policy on tackling climate change and a tool for promoting the competitiveness of enterprises. The Presidency will therefore continue to discuss specific consumption-related measures (the labelling of household appliances and tyres with energy labels and increasing the energy efficiency of buildings) and try to conclude the revised proposal for a framework directive determining requirements for the ‘Eco-design’ of products at first reading.
The Presidency will support a critical and open debate on all available energy sources and their economical use in line with the EU’s climate protection commitments. In doing so, it will focus on the support for new technologies, energy savings, the debate about the opportunities and risks associated with the use of nuclear energy, the issue of the opportunities and risks associated with the use of biofuels, and last but not least, the impacts of wind energy production on transmission network stability. Along these lines, it will promote the activities of the Nuclear Forum and maximum application of the results of the work of the High Level Group on Nuclear Safety.
The Czech Presidency will participate in the debate on supporting the use of clean coal technology and demonstration projects for the system of capturing and storing carbon emissions (CCS technology). In the first half of 2009, a debate will be held on the implementation of the European Strategic Energy Technology Plan (SET-Plan). The Presidency will support the translation of the SET-Plan into practical steps and initiatives, including the strengthening of research and development and the development of new forms of cooperation. From the perspective of the Czech Presidency, the EU should play a leading role in the development of these technologies.
***
Convincing crisis
The Czech Presidency of the EU Council quickly had to take on the crisis generated by the conflict between Russia and Ukraine, which hit several UE member states severely. The reliable supply and continuous transit of gas, as well as the strategic importance of the rest of the energy programme, could hardly have been illustrated more clearly.
Now is the time to act on the good intentions, including the institutional deficiencies hampering the EU’s progress internally and internationally.
Although far from enough, ratification of the Lisbon Treaty would send a clear signal that the Czech Presidency takes itself seriously.
Ralf Grahn
Russia and Ukraine: Pacta sunt servanda?
Yesterday evening the Czech Presidency of the EU Council was still expressing its disappointment at the failure of Russia and Ukraine to reach a deal on the supply and transit of gas to EU member states:
http://www.eu2009.cz/en/news-and-documents/news/czech-presidency-urges-russia-and-ukraine-to-continue-negotiations-6545/
The negotiations resumed later in the evening, and in the wee hours of Sunday morning the BBC reported: Gas to flow after deal in Moscow. The report is available here:
http://news.bbc.co.uk/2/hi/europe/7834796.stm
The BBC quotes the Ukrainian Prime Minister Yulia Tymoshenko saying that the Russian energy company Gazprom and its Ukrainian counterpart Naftohaz have been instructed to draw up the relevant contracts by Monday. After the documents on the transit and purchase of gas have been signed, the routes for gas transit and gas supplies to Europe will be restored.
***
Pacta sunt servanda?
In the best case, even if a deal has been reached, EU citizens still have to wait before the heating turns on.
In the worst case, this is just the latest ‘agreement’ between Russia and Ukraine to unravel before it is signed and long before it is put into practice. Neither the supply monopoly nor the transit monopoly has won any points on credibility, lately.
***
The supplier’s strong arm tactics and the evasions of an essentially bankrupt transit country have exposed the vulnerability of EU consumers to whims beyond the control of their individual governments and the existing powers of the European Union.
The Lisbon Treaty would enhance the powers of the European Union in the energy area to a degree, but first the treaty has to be ratified.
Are Lech Kaczynski, Vaclav Klaus and Mirek Topolanek listening? Do the Irish understand the interests at stake, for Europe and for themselves?
Ralf Grahn
http://www.eu2009.cz/en/news-and-documents/news/czech-presidency-urges-russia-and-ukraine-to-continue-negotiations-6545/
The negotiations resumed later in the evening, and in the wee hours of Sunday morning the BBC reported: Gas to flow after deal in Moscow. The report is available here:
http://news.bbc.co.uk/2/hi/europe/7834796.stm
The BBC quotes the Ukrainian Prime Minister Yulia Tymoshenko saying that the Russian energy company Gazprom and its Ukrainian counterpart Naftohaz have been instructed to draw up the relevant contracts by Monday. After the documents on the transit and purchase of gas have been signed, the routes for gas transit and gas supplies to Europe will be restored.
***
Pacta sunt servanda?
In the best case, even if a deal has been reached, EU citizens still have to wait before the heating turns on.
In the worst case, this is just the latest ‘agreement’ between Russia and Ukraine to unravel before it is signed and long before it is put into practice. Neither the supply monopoly nor the transit monopoly has won any points on credibility, lately.
***
The supplier’s strong arm tactics and the evasions of an essentially bankrupt transit country have exposed the vulnerability of EU consumers to whims beyond the control of their individual governments and the existing powers of the European Union.
The Lisbon Treaty would enhance the powers of the European Union in the energy area to a degree, but first the treaty has to be ratified.
Are Lech Kaczynski, Vaclav Klaus and Mirek Topolanek listening? Do the Irish understand the interests at stake, for Europe and for themselves?
Ralf Grahn
Saturday, 17 January 2009
EU Law: Energy policy and action
What has the European Community (European Union) been able to do in the area of energy, before the Lisbon Treaty or a later treaty creates a specific policy area and a legal base for legislation according to the ordinary legislative procedure?
We present some materials on and links to EU energy policy, an area as hot as any right now, but also of fundamental strategic importance for the future of Europe.
***
European Coal and Steel Community (ECSC)
Energy was present at the birth of institutionalised European integration in the shape of the first Community, the European Coal and Steel Community (ECSC), which was proposed by the French Foreign Minister Robert Schuman. The Schuman Declaration of 9th May 1950 is the reason why 9 May is commemorated annually as Europe Day. The ECSC Treaty was concluded for 50 years, and it expired in July 2002.
***
Euratom
There were two Treaties of Rome, signed in March 1957. One was the Treaty establishing the European Economic Community (EEC), which with a broader scope became the European Community (EC). Nowadays official papers and some lawyers seem to be the only ones who remember that there is such an entity. In daily use the European Union has become the main concept, under which the European Community has been subsumed as part of the so called first pillar (Community pillar). The Lisbon Treaty would officially integrate the European Union, which would take over the legal personality of the EC.
The second Treaty of Rome was the European Atomic Energy Community (EAEC or Euratom), which still functions, although it is rarely heard of.
The Commission’s Scadplus web page Treaty establishing the European Atomic Energy Community (Euratom) offers an overview of the treaty and the aims of Euratom:
http://europa.eu/scadplus/treaties/euratom_en.htm
***
Euratom Treaty
During the course of more than five decades, the various treaty reforms have led to technical adaptations of the Euratom Treaty, but it has not been substantially reformed.
Euratom: Lisbon Treaty Declaration
This was pointed out in a Declaration attached to the Treaty of Lisbon, Declaration 54 by the Federal Republic of Germany, Ireland, the Republic of Hungary, the Republic of Austria and the Kingdom of Sweden:
Germany, Ireland, Hungary, Austria and Sweden note that the core provisions of the Treaty establishing the European Atomic Energy Community have not been substantially amended since its entry into force and need to be brought up to date. They therefore support the idea of a Conference of the Representatives of the Governments of the Member States, which should be convened as soon as possible.
***
Selected Euratom activities
The General Report on the Activities of the European Union 2007 offers some information about the activities of Euratom:
http://europa.eu/generalreport/en/rg2007en.pdf
The European Atomic Energy Community has its own Seventh Framework Programme for Research:
The seventh Euratom framework programme came into force on 1 January 2007 and will end on 31 December 2011. It covers research activities on fusion energy, nuclear fi ssion and radiation protection, the details of which are set out in a specific programme. In 2007 Estonia, Cyprus and Malta became members of the European Fusion Development Agreement, and are now invited to create transnational research units with other Euratom associations. Estonia has already created a research unit with Euratom’s Finnish association. A further specifi c programme deals with the Joint Research Centre’s nuclear activities.
On 27 March the Council adopted a decision establishing a joint European undertaking for ITER and the development of fusion energy. It will manage the contribution of the European Atomic Energy Community to the ITER International Fusion Energy Organisation. (Decision 2007/198/Euratom, OJEU 30.3.2007 L 90).
***
Energy policy: sources
General Report
The General Report on the Activities of the European Union 2007 serves as a general introduction to energy policy in general and concerning specific energy sectors (page 84 to 88). (We can expect the 2008 General Report fairly soon.)
With its overviews of policy areas and its references to relevant documents the latest General Report is an excellent source for interested persons.
EU Bulletin
The Bulletin of the European Union documents the main events during the year in monthly instalments. The latest final version covers September 2008 (published 19 December 2008; page 84 to 86), but provisional versions with Section 25 Energy concerning October and November (published 18 December 2008) are also available here:
http://europa.eu/bulletin/en/welcome.htm
***
Energy legislation
The Commission’s Scadplus web page Energy offers links to different aspects and sectors of energy policy, European energy policy, Internal energy market, Energy efficiency, Renewable energy, Nuclear energy and Security of supply, external dimension and enlargement, as well as the topical Tackling climate change:
http://europa.eu/scadplus/leg/en/s14000.htm
***
Commission activities
The home page of the Commission’s Directorate-General Energy and Commissioner Andris Piebalgs offers an overview of the latest news and events as well as links to both general policy issues and sectoral information:
http://ec.europa.eu/energy/index_en.htm
***
EU Council
Energy crisis: Russia and Ukraine
The Energy Ministers of the European Union met in an extraordinary Council meeting 12 January 2009 and reached the following conclusions on the interruption of gas supplies from Russia via Ukraine:
http://www.consilium.europa.eu/ueDocs/cms_Data/docs/pressData/en/trans/105292.pdf
The Ministers called on Russia and Ukraine to resolve their dispute, and recalled the efforts of the Czech Council Presidency to mediate, but the Conclusions also reflect a growing awareness of the need for strategic European action in order to improve the supply of energy and the functioning of the energy markets.
***
European Parliament
One of the latest press releases from the European Parliament ahead of the debate on energy issues last Wednesday underlined the concerns of the MEPs:
http://www.europarl.europa.eu/pdfs/news/public/story/20090108STO45594/20090108STO45594_en.pdf
***
Lisbon Treaty: Declaration 35
The previous blog post presented the new Title XXI Energy and the new Article 194 TFEU. The intergovernmental conference annexed the following joint Declaration (No 35) to the Lisbon Treaty:
35. Declaration on Article 194 of the Treaty on the Functioning of the European Union
The Conference believes that Article 194 does not affect the right of the Member States to take the necessary measures to ensure their energy supply under the conditions provided for in Article 347.
***
Although Declaration 35 states that the member states have a right to take necessary measures, the thrust of Article 347 TFEU is to invite the member states to consult with each other and to find common solutions in case of serious disturbances:
Article 347 TFEU
(ex Article 297 TEC)
Member States shall consult each other with a view to taking together the steps needed to prevent the functioning of the internal market being affected by measures which a Member State may be called upon to take in the event of serious internal disturbances affecting the maintenance of law and order, in the event of war, serious international tension constituting a threat of war, or in order to carry out obligations it has accepted for the purpose of maintaining peace and international security.
***
Growing awareness
There is growing awareness that the European Union needs to move quickly and decisively on energy policy in order to enhance energy supply and security, to secure alternative sources and supply routes and to improve interconnection between national energy markets.
Quick ratification of the Lisbon Treaty would improve the decision-making capacity of the European Union and promote the much needed spirit of solidarity between the member states and EU citizens.
The ratification is one action of solidarity the Czech Republic and Poland’s President Lech Kaczynski should accomplish without delay. The Irish people should join in as soon as they are given the chance, for the sake of Europe’s future and Ireland’s future in Europe.
Ralf Grahn
We present some materials on and links to EU energy policy, an area as hot as any right now, but also of fundamental strategic importance for the future of Europe.
***
European Coal and Steel Community (ECSC)
Energy was present at the birth of institutionalised European integration in the shape of the first Community, the European Coal and Steel Community (ECSC), which was proposed by the French Foreign Minister Robert Schuman. The Schuman Declaration of 9th May 1950 is the reason why 9 May is commemorated annually as Europe Day. The ECSC Treaty was concluded for 50 years, and it expired in July 2002.
***
Euratom
There were two Treaties of Rome, signed in March 1957. One was the Treaty establishing the European Economic Community (EEC), which with a broader scope became the European Community (EC). Nowadays official papers and some lawyers seem to be the only ones who remember that there is such an entity. In daily use the European Union has become the main concept, under which the European Community has been subsumed as part of the so called first pillar (Community pillar). The Lisbon Treaty would officially integrate the European Union, which would take over the legal personality of the EC.
The second Treaty of Rome was the European Atomic Energy Community (EAEC or Euratom), which still functions, although it is rarely heard of.
The Commission’s Scadplus web page Treaty establishing the European Atomic Energy Community (Euratom) offers an overview of the treaty and the aims of Euratom:
http://europa.eu/scadplus/treaties/euratom_en.htm
***
Euratom Treaty
During the course of more than five decades, the various treaty reforms have led to technical adaptations of the Euratom Treaty, but it has not been substantially reformed.
Euratom: Lisbon Treaty Declaration
This was pointed out in a Declaration attached to the Treaty of Lisbon, Declaration 54 by the Federal Republic of Germany, Ireland, the Republic of Hungary, the Republic of Austria and the Kingdom of Sweden:
Germany, Ireland, Hungary, Austria and Sweden note that the core provisions of the Treaty establishing the European Atomic Energy Community have not been substantially amended since its entry into force and need to be brought up to date. They therefore support the idea of a Conference of the Representatives of the Governments of the Member States, which should be convened as soon as possible.
***
Selected Euratom activities
The General Report on the Activities of the European Union 2007 offers some information about the activities of Euratom:
http://europa.eu/generalreport/en/rg2007en.pdf
The European Atomic Energy Community has its own Seventh Framework Programme for Research:
The seventh Euratom framework programme came into force on 1 January 2007 and will end on 31 December 2011. It covers research activities on fusion energy, nuclear fi ssion and radiation protection, the details of which are set out in a specific programme. In 2007 Estonia, Cyprus and Malta became members of the European Fusion Development Agreement, and are now invited to create transnational research units with other Euratom associations. Estonia has already created a research unit with Euratom’s Finnish association. A further specifi c programme deals with the Joint Research Centre’s nuclear activities.
On 27 March the Council adopted a decision establishing a joint European undertaking for ITER and the development of fusion energy. It will manage the contribution of the European Atomic Energy Community to the ITER International Fusion Energy Organisation. (Decision 2007/198/Euratom, OJEU 30.3.2007 L 90).
***
Energy policy: sources
General Report
The General Report on the Activities of the European Union 2007 serves as a general introduction to energy policy in general and concerning specific energy sectors (page 84 to 88). (We can expect the 2008 General Report fairly soon.)
With its overviews of policy areas and its references to relevant documents the latest General Report is an excellent source for interested persons.
EU Bulletin
The Bulletin of the European Union documents the main events during the year in monthly instalments. The latest final version covers September 2008 (published 19 December 2008; page 84 to 86), but provisional versions with Section 25 Energy concerning October and November (published 18 December 2008) are also available here:
http://europa.eu/bulletin/en/welcome.htm
***
Energy legislation
The Commission’s Scadplus web page Energy offers links to different aspects and sectors of energy policy, European energy policy, Internal energy market, Energy efficiency, Renewable energy, Nuclear energy and Security of supply, external dimension and enlargement, as well as the topical Tackling climate change:
http://europa.eu/scadplus/leg/en/s14000.htm
***
Commission activities
The home page of the Commission’s Directorate-General Energy and Commissioner Andris Piebalgs offers an overview of the latest news and events as well as links to both general policy issues and sectoral information:
http://ec.europa.eu/energy/index_en.htm
***
EU Council
Energy crisis: Russia and Ukraine
The Energy Ministers of the European Union met in an extraordinary Council meeting 12 January 2009 and reached the following conclusions on the interruption of gas supplies from Russia via Ukraine:
http://www.consilium.europa.eu/ueDocs/cms_Data/docs/pressData/en/trans/105292.pdf
The Ministers called on Russia and Ukraine to resolve their dispute, and recalled the efforts of the Czech Council Presidency to mediate, but the Conclusions also reflect a growing awareness of the need for strategic European action in order to improve the supply of energy and the functioning of the energy markets.
***
European Parliament
One of the latest press releases from the European Parliament ahead of the debate on energy issues last Wednesday underlined the concerns of the MEPs:
http://www.europarl.europa.eu/pdfs/news/public/story/20090108STO45594/20090108STO45594_en.pdf
***
Lisbon Treaty: Declaration 35
The previous blog post presented the new Title XXI Energy and the new Article 194 TFEU. The intergovernmental conference annexed the following joint Declaration (No 35) to the Lisbon Treaty:
35. Declaration on Article 194 of the Treaty on the Functioning of the European Union
The Conference believes that Article 194 does not affect the right of the Member States to take the necessary measures to ensure their energy supply under the conditions provided for in Article 347.
***
Although Declaration 35 states that the member states have a right to take necessary measures, the thrust of Article 347 TFEU is to invite the member states to consult with each other and to find common solutions in case of serious disturbances:
Article 347 TFEU
(ex Article 297 TEC)
Member States shall consult each other with a view to taking together the steps needed to prevent the functioning of the internal market being affected by measures which a Member State may be called upon to take in the event of serious internal disturbances affecting the maintenance of law and order, in the event of war, serious international tension constituting a threat of war, or in order to carry out obligations it has accepted for the purpose of maintaining peace and international security.
***
Growing awareness
There is growing awareness that the European Union needs to move quickly and decisively on energy policy in order to enhance energy supply and security, to secure alternative sources and supply routes and to improve interconnection between national energy markets.
Quick ratification of the Lisbon Treaty would improve the decision-making capacity of the European Union and promote the much needed spirit of solidarity between the member states and EU citizens.
The ratification is one action of solidarity the Czech Republic and Poland’s President Lech Kaczynski should accomplish without delay. The Irish people should join in as soon as they are given the chance, for the sake of Europe’s future and Ireland’s future in Europe.
Ralf Grahn
EU Law: Energy and solidarity
Without heating in the middle of the winter! Freezing Europeans in the 21st century!
The supply of gas interrupted by the conflict between Russia and Ukraine has done as much to convince citizens of the European Union of the need for more Europe as the financial sector turmoil and the economic recession, with efforts at concerted action and the Eurozone somewhat sheltered from the worst effects.
The EU Treaty of Lisbon reflects the growing realisation that the European Union needs effective tools to improve the energy markets internally and to act decisively on the international arena.
Compared with the stranded Constitutional Treaty, the new Energy Title of Lisbon Treaty evokes a much needed spirit of solidarity between the member states.
In addition, energy is at the heart of mankind’s efforts to combat climate change. Without the European Union as lead player, the global efforts would be even more inadequate than at present. This challenge calls for global solidarity.
We look at the new treaty level provision on energy.
***
TEC
There is no Title on energy and no specific Article 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 does not mean that the European Community has not become active, but in the absence of a specific legal base legislative measures depend on competence in related policy areas or on the so called flexibility clause, Article 308 TEC, which requires unanimous Council decisions and relegates the European Parliament to being only consulted.
In other words, not the most promising setting for effective action.
***
Draft Constitution
Mindful of the need, the European Convention proposed a new Article III-157 on energy in 2003.
***
Constitutional Treaty
The proposed provision was taken over by the intergovernmental conference in 2004. But Article III-256 of the Constitutional Treaty became one of the casualties of the stalled ratification processes and the prolonged wait for a new treaty.
.
***
Original Lisbon Treaty (ToL)
Article 2, point 147 inserted a new Title XX Energy and a new Article 176a (OJEU 17.12.2007 C 306/88):
ENERGY
147) Title XX shall be replaced by the following new Title and new Article 176 A:
‘TITLE XX
ENERGY
Article 176 A
1. In the context of the establishment and functioning of the internal market and with regard for the need to preserve and improve the environment, Union policy on energy shall aim, in a spirit of solidarity between Member States, to:
(a) ensure the functioning of the energy market;
(b) ensure security of energy supply in the Union; and
(c) promote energy efficiency and energy saving and the development of new and renewable forms of energy; and
(d) promote the interconnection of energy networks.
2. Without prejudice to the application of other provisions of the Treaties, the European Parliament and the Council, acting in accordance with the ordinary legislative procedure, shall establish the measures necessary to achieve the objectives in paragraph 1. Such measures shall be adopted after consultation of the Economic and Social Committee and the Committee of the Regions.
Such measures shall not affect a Member State's right to determine the conditions for exploiting its energy resources, its choice between different energy sources and the general structure of its energy supply, without prejudice to Article 175(2)(c).
3. By way of derogation from paragraph 2, the Council, acting in accordance with a special legislative procedure, shall unanimously and after consulting the European Parliament, establish the measures referred to therein when they are primarily of a fiscal nature.’.
***
Renumbering the Treaty of Lisbon (ToL)
The Table of equivalences of the original Treaty of Lisbon tells us that the new Title XX Environment in the TFEU (ToL) was renumbered Title XXI Energy in the consolidated version of the Lisbon Treaty.
Article 176a TFEU (ToL) was renumbered Article 194 TFEU in the consolidated version of the Lisbon Treaty (OJEU 17.12.2007 C 306/218).
***
Lisbon Treaty consolidated
Article 194 TFEU
After renumbering the Article and the referral, Article 193 TFEU appears like this in the consolidated version of the Treaty of Lisbon (OJEU 9.5.2008 C 115/134):
TITLE XXI
ENERGY
Article 194 TFEU
1. In the context of the establishment and functioning of the internal market and with regard for the need to preserve and improve the environment, Union policy on energy shall aim, in a spirit of solidarity between Member States, to:
(a) ensure the functioning of the energy market;
(b) ensure security of energy supply in the Union;
(c) promote energy efficiency and energy saving and the development of new and renewable forms of energy; and
(d) promote the interconnection of energy networks.
2. Without prejudice to the application of other provisions of the Treaties, the European Parliament and the Council, acting in accordance with the ordinary legislative procedure, shall establish the measures necessary to achieve the objectives in paragraph 1. Such measures shall be adopted after consultation of the Economic and Social Committee and the Committee of the Regions.
Such measures shall not affect a Member State's right to determine the conditions for exploiting its energy resources, its choice between different energy sources and the general structure of its energy supply, without prejudice to Article 192(2)(c).
3. By way of derogation from paragraph 2, the Council, acting in accordance with a special legislative procedure, shall unanimously and after consulting the European Parliament, establish the measures referred to therein when they are primarily of a fiscal nature.
***
Improvements by the Lisbon Treaty
The Lisbon Treaty added the guiding principle ‘in a spirit of solidarity between Member States’, a spirit much in demand at the moment.
But noble thoughts are more easily put into practice if the tools for effective decision-making are in place. The ordinary legislative procedure is adopted by the Lisbon Treaty, in line with the draft Constitution and the Constitutional Treaty.
At the end of the day, this is one of the reasons why the Treaty of Lisbon (with all its imperfections) should be ratified as a step towards an EU capable of promoting the interests of its citizens.
Ralf Grahn
The supply of gas interrupted by the conflict between Russia and Ukraine has done as much to convince citizens of the European Union of the need for more Europe as the financial sector turmoil and the economic recession, with efforts at concerted action and the Eurozone somewhat sheltered from the worst effects.
The EU Treaty of Lisbon reflects the growing realisation that the European Union needs effective tools to improve the energy markets internally and to act decisively on the international arena.
Compared with the stranded Constitutional Treaty, the new Energy Title of Lisbon Treaty evokes a much needed spirit of solidarity between the member states.
In addition, energy is at the heart of mankind’s efforts to combat climate change. Without the European Union as lead player, the global efforts would be even more inadequate than at present. This challenge calls for global solidarity.
We look at the new treaty level provision on energy.
***
TEC
There is no Title on energy and no specific Article 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 does not mean that the European Community has not become active, but in the absence of a specific legal base legislative measures depend on competence in related policy areas or on the so called flexibility clause, Article 308 TEC, which requires unanimous Council decisions and relegates the European Parliament to being only consulted.
In other words, not the most promising setting for effective action.
***
Draft Constitution
Mindful of the need, the European Convention proposed a new Article III-157 on energy in 2003.
***
Constitutional Treaty
The proposed provision was taken over by the intergovernmental conference in 2004. But Article III-256 of the Constitutional Treaty became one of the casualties of the stalled ratification processes and the prolonged wait for a new treaty.
.
***
Original Lisbon Treaty (ToL)
Article 2, point 147 inserted a new Title XX Energy and a new Article 176a (OJEU 17.12.2007 C 306/88):
ENERGY
147) Title XX shall be replaced by the following new Title and new Article 176 A:
‘TITLE XX
ENERGY
Article 176 A
1. In the context of the establishment and functioning of the internal market and with regard for the need to preserve and improve the environment, Union policy on energy shall aim, in a spirit of solidarity between Member States, to:
(a) ensure the functioning of the energy market;
(b) ensure security of energy supply in the Union; and
(c) promote energy efficiency and energy saving and the development of new and renewable forms of energy; and
(d) promote the interconnection of energy networks.
2. Without prejudice to the application of other provisions of the Treaties, the European Parliament and the Council, acting in accordance with the ordinary legislative procedure, shall establish the measures necessary to achieve the objectives in paragraph 1. Such measures shall be adopted after consultation of the Economic and Social Committee and the Committee of the Regions.
Such measures shall not affect a Member State's right to determine the conditions for exploiting its energy resources, its choice between different energy sources and the general structure of its energy supply, without prejudice to Article 175(2)(c).
3. By way of derogation from paragraph 2, the Council, acting in accordance with a special legislative procedure, shall unanimously and after consulting the European Parliament, establish the measures referred to therein when they are primarily of a fiscal nature.’.
***
Renumbering the Treaty of Lisbon (ToL)
The Table of equivalences of the original Treaty of Lisbon tells us that the new Title XX Environment in the TFEU (ToL) was renumbered Title XXI Energy in the consolidated version of the Lisbon Treaty.
Article 176a TFEU (ToL) was renumbered Article 194 TFEU in the consolidated version of the Lisbon Treaty (OJEU 17.12.2007 C 306/218).
***
Lisbon Treaty consolidated
Article 194 TFEU
After renumbering the Article and the referral, Article 193 TFEU appears like this in the consolidated version of the Treaty of Lisbon (OJEU 9.5.2008 C 115/134):
TITLE XXI
ENERGY
Article 194 TFEU
1. In the context of the establishment and functioning of the internal market and with regard for the need to preserve and improve the environment, Union policy on energy shall aim, in a spirit of solidarity between Member States, to:
(a) ensure the functioning of the energy market;
(b) ensure security of energy supply in the Union;
(c) promote energy efficiency and energy saving and the development of new and renewable forms of energy; and
(d) promote the interconnection of energy networks.
2. Without prejudice to the application of other provisions of the Treaties, the European Parliament and the Council, acting in accordance with the ordinary legislative procedure, shall establish the measures necessary to achieve the objectives in paragraph 1. Such measures shall be adopted after consultation of the Economic and Social Committee and the Committee of the Regions.
Such measures shall not affect a Member State's right to determine the conditions for exploiting its energy resources, its choice between different energy sources and the general structure of its energy supply, without prejudice to Article 192(2)(c).
3. By way of derogation from paragraph 2, the Council, acting in accordance with a special legislative procedure, shall unanimously and after consulting the European Parliament, establish the measures referred to therein when they are primarily of a fiscal nature.
***
Improvements by the Lisbon Treaty
The Lisbon Treaty added the guiding principle ‘in a spirit of solidarity between Member States’, a spirit much in demand at the moment.
But noble thoughts are more easily put into practice if the tools for effective decision-making are in place. The ordinary legislative procedure is adopted by the Lisbon Treaty, in line with the draft Constitution and the Constitutional Treaty.
At the end of the day, this is one of the reasons why the Treaty of Lisbon (with all its imperfections) should be ratified as a step towards an EU capable of promoting the interests of its citizens.
Ralf Grahn
EU Law: Higher environmental standards
When the European Community (European Union) sets standards for environmental protection, these do not prevent the “progressive” member states from maintaining or introducing more stringent environmental protection measures.
This is the soothing message European politicians can convey to the more environmentally conscious electorates.
We look at how this is set out at treaty level in EU law.
***
Article 176 TEC
Article 176 (ex Article 130t) of the current Treaty establishing the European Community (TEC) refers to the environmental protection measures adopted according to the preceding Article 175 TEC in order to achieve the European Community’s (European Union’s) environmental objectives (Article 174 TEC).
Even if the European Community has adopted protective measures, i.e. set certain environmental standards pursuant to Article 175 TEC, each member state can choose to retain its existing higher standards of protection and it is even allowed to introduce new and higher levels of protection.
These higher national standards have to be compatible with the treaty, and they have to be notified to the Commission.
.
Here is Article 176 TEC, as published in the latest consolidated version of the treaties, OJEU 29.12.2006 C 321 E/125:
(TITLE XIX
ENVIRONMENT)
Article 176 TFEU
The protective measures adopted pursuant to Article 175 shall not prevent any Member State from maintaining or introducing more stringent protective measures. Such measures must be compatible with this Treaty. They shall be notified to the Commission.
***
Original Lisbon Treaty (ToL)
Article 2, point 144 amended Article 175 and point 145 concerned the following Title XX Development cooperation (OJEU 17.12.2007 C 306/87).
In other words, there was no specific amendment with regard to Article 176 TEC.
***
Renumbering the Treaty of Lisbon (ToL)
(The Table of equivalences of the original Treaty of Lisbon tells us that Title XIX Environment retained its name and number in the TFEU (ToL), but it was later renumbered Title XX Environment in the consolidated version of the Lisbon Treaty.)
Article 176 TEC first became Article 176 TFEU (ToL), but was then renumbered Article 193 TFEU in the consolidated version of the Lisbon Treaty (OJEU 17.12.2007 C 306/218).
***
Lisbon Treaty consolidated
Article 193 TFEU
After renumbering the Article and the referral, Article 193 TFEU appears like this in the consolidated version of the Treaty of Lisbon (OJEU 9.5.2008 C 115/134):
(TITLE XX
ENVIRONMENT)
Article 193 TFEU
(ex Article 176 TEC)
The protective measures adopted pursuant to Article 192 shall not prevent any Member State from maintaining or introducing more stringent protective measures. Such measures must be compatible with the Treaties. They shall be notified to the Commission.
***
Shared competence
We use the consolidated Lisbon Treaty to illustrate the question of competence. In the general scheme of things, Article 4(2)(e) TFEU sorts the environment among the areas of shared competence.
When the competence in an area is shared between the European Union and the member states, the member states can generally exercise their legislative competence only to the extent that the EU has not exercised its competence. See Article 2(2) TFEU.
Against this background, Article 193 TFEU is an exception. The European Union has filled the void by adopting protective measures and thus exercised its competence, but more stringent national standards – old and new – are still allowed.
(The stated Article 193 TFEU exception may be more significant as an indication of the importance attributed to environmental protection than in practice, because many EU measures are designed as minimum standards anyway and environmental protection is often enacted through Directives, which strive for harmonisation at the lower end of the EU, leaving the more “progressive” member states scope to apply more stringent norms.)
Ralf Grahn
This is the soothing message European politicians can convey to the more environmentally conscious electorates.
We look at how this is set out at treaty level in EU law.
***
Article 176 TEC
Article 176 (ex Article 130t) of the current Treaty establishing the European Community (TEC) refers to the environmental protection measures adopted according to the preceding Article 175 TEC in order to achieve the European Community’s (European Union’s) environmental objectives (Article 174 TEC).
Even if the European Community has adopted protective measures, i.e. set certain environmental standards pursuant to Article 175 TEC, each member state can choose to retain its existing higher standards of protection and it is even allowed to introduce new and higher levels of protection.
These higher national standards have to be compatible with the treaty, and they have to be notified to the Commission.
.
Here is Article 176 TEC, as published in the latest consolidated version of the treaties, OJEU 29.12.2006 C 321 E/125:
(TITLE XIX
ENVIRONMENT)
Article 176 TFEU
The protective measures adopted pursuant to Article 175 shall not prevent any Member State from maintaining or introducing more stringent protective measures. Such measures must be compatible with this Treaty. They shall be notified to the Commission.
***
Original Lisbon Treaty (ToL)
Article 2, point 144 amended Article 175 and point 145 concerned the following Title XX Development cooperation (OJEU 17.12.2007 C 306/87).
In other words, there was no specific amendment with regard to Article 176 TEC.
***
Renumbering the Treaty of Lisbon (ToL)
(The Table of equivalences of the original Treaty of Lisbon tells us that Title XIX Environment retained its name and number in the TFEU (ToL), but it was later renumbered Title XX Environment in the consolidated version of the Lisbon Treaty.)
Article 176 TEC first became Article 176 TFEU (ToL), but was then renumbered Article 193 TFEU in the consolidated version of the Lisbon Treaty (OJEU 17.12.2007 C 306/218).
***
Lisbon Treaty consolidated
Article 193 TFEU
After renumbering the Article and the referral, Article 193 TFEU appears like this in the consolidated version of the Treaty of Lisbon (OJEU 9.5.2008 C 115/134):
(TITLE XX
ENVIRONMENT)
Article 193 TFEU
(ex Article 176 TEC)
The protective measures adopted pursuant to Article 192 shall not prevent any Member State from maintaining or introducing more stringent protective measures. Such measures must be compatible with the Treaties. They shall be notified to the Commission.
***
Shared competence
We use the consolidated Lisbon Treaty to illustrate the question of competence. In the general scheme of things, Article 4(2)(e) TFEU sorts the environment among the areas of shared competence.
When the competence in an area is shared between the European Union and the member states, the member states can generally exercise their legislative competence only to the extent that the EU has not exercised its competence. See Article 2(2) TFEU.
Against this background, Article 193 TFEU is an exception. The European Union has filled the void by adopting protective measures and thus exercised its competence, but more stringent national standards – old and new – are still allowed.
(The stated Article 193 TFEU exception may be more significant as an indication of the importance attributed to environmental protection than in practice, because many EU measures are designed as minimum standards anyway and environmental protection is often enacted through Directives, which strive for harmonisation at the lower end of the EU, leaving the more “progressive” member states scope to apply more stringent norms.)
Ralf Grahn
Friday, 16 January 2009
European Union: Environmental legislation
The Treaty establishing the European Community (TEC) sets out co-decision with full participation of the European Parliament as the norm in environmental legislation, but by way of derogation (exception) sensitive areas have been kept under the unanimity rule.
The Treaty of Lisbon rephrases this two-pronged approach, without altering the substance.
***
Article 175 TEC
Article 175 (ex Article 130s) of the current Treaty establishing the European Community (TEC) builds on the environmental aims of the European Community (European Union) in the preceding Article, namely to contribute to:
— preserving, protecting and improving the quality of the environment,
— protecting human health,
— prudent and rational utilisation of natural resources,
— promoting measures at international level to deal with regional or worldwide environmental problems.
The main rule on legislation is straightforward: the co-decision procedure (paragraph 1).
Harmonisation (approximation) of laws based on the internal market objectives of free movement of goods, persons, services and capital according to Article 95 TEC (referring to Article 14 TEC) is unaffected.
In sensitive areas, the member states have not been able to accept the co-decision procedure unanimously during the intergovernmental conferences. They have landed a political compromise with regard to the measures mentioned in the second paragraph of Article 175 TEC. By way of a derogation from paragraph 1, these measures have to enacted unanimously, but as a consolation to more “progressive” member states, the second subparagraph of paragraph 2 opens up the possibility to move to qualified majority voting by unanimous decision.
General environmental action programmes outside the scope of paragraph 2 are adopted by co-decision and the implementing, but implementing measures are adopted by the Council either by qualified majority voting (QMV; paragraph 1) or unanimously (paragraph 2).
Costs for environmental policies are, as a rule, borne by the member states, although temporary derogations or Cohesion Fund financing may be granted in certain cases.
Here is Article 175 TEC, as published in the latest consolidated version of the treaties, OJEU 29.12.2006 C 321 E/124–125:
(TITLE XIX
ENVIRONMENT)
Article 175 TEC
1. The Council, 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, shall decide what action is to be taken by the Community in order to achieve the objectives referred to in Article 174.
2. By way of derogation from the decision-making procedure provided for in paragraph 1 and without prejudice to Article 95, the Council, acting unanimously on a proposal from the Commission and after consulting the European Parliament, the Economic and Social Committee and the Committee of the Regions, shall adopt:
(a) provisions primarily of a fiscal nature;
(b) measures affecting:
— town and country planning,
— quantitative management of water resources or affecting, directly or indirectly, the availability of those resources,
— land use, with the exception of waste management;
(c) measures significantly affecting a Member State's choice between different energy sources and the general structure of its energy supply.
The Council may, under the conditions laid down in the first subparagraph, define those matters referred to in this paragraph on which decisions are to be taken by a qualified majority.
3. In other areas, general action programmes setting out priority objectives to be attained shall be adopted by the Council, 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.
The Council, acting under the terms of paragraph 1 or paragraph 2 according to the case, shall adopt the measures necessary for the implementation of these programmes.
4. Without prejudice to certain measures of a Community nature, the Member States shall finance and implement the environment policy.
5. Without prejudice to the principle that the polluter should pay, if a measure based on the provisions of paragraph 1 involves costs deemed disproportionate for the public authorities of a Member State, the Council shall, in the act adopting that measure, lay down appropriate provisions in the form of:
— temporary derogations, and/or
— financial support from the Cohesion Fund set up pursuant to Article 161.
***
Original Lisbon Treaty (ToL)
Article 2, point 144 amended Article 175 (OJEU 17.12.2007 C 306/87):
144) Article 175 shall be amended as follows:
(a) in paragraph 2, the second subparagraph shall be replaced by the following:
‘The Council, acting unanimously on a proposal from the Commission and after consulting the European Parliament, the Economic and Social Committee and the Committee of the Regions, may make the ordinary legislative procedure applicable to the matters referred to in the first subparagraph.’;
(b) in the first subparagraph of paragraph 3, the words ‘In other areas,’ shall be deleted and the second subparagraph shall be replaced by the following:
‘The measures necessary for the implementation of these programmes shall be adopted under the terms of paragraph 1 or 2, as the case may be.’;
(c) in paragraph 4, the words ‘certain measures of a Community nature,’ shall be replaced by ‘certain measures adopted by the Union’;
(d) in paragraph 5, the words ‘the Council shall, in the act adopting that measure, lay down’
shall be replaced by ‘such measure shall lay down’.
***
Renumbering the Treaty of Lisbon (ToL)
(The Table of equivalences of the original Treaty of Lisbon tells us that Title XIX Environment retained its name and number in the TFEU (ToL), but it was later renumbered Title XX Environment in the consolidated version of the Lisbon Treaty.)
Article 175 TEC first became Article 175 TFEU (ToL), but was then renumbered Article 192 TFEU in the consolidated version of the Lisbon Treaty (OJEU 17.12.2007 C 306/218).
***
Lisbon Treaty consolidated
Article 192 TFEU
After renumbering and amendments, Article 192 TFEU appears like this in the consolidated version of the Treaty of Lisbon (OJEU 9.5.2008 C 115/133–134):
(TITLE XX
ENVIRONMENT)
Article 192 TFEU
(ex Article 175 TEC)
1. The European Parliament and the Council, acting in accordance with the ordinary legislative procedure and after consulting the Economic and Social Committee and the Committee of the Regions, shall decide what action is to be taken by the Union in order to achieve the objectives referred to in Article 191.
2. By way of derogation from the decision-making procedure provided for in paragraph 1 and without prejudice to Article 114, the Council acting unanimously in accordance with a special legislative procedure and after consulting the European Parliament, the Economic and Social Committee and the Committee of the Regions, shall adopt:
(a) provisions primarily of a fiscal nature;
(b) measures affecting:
— town and country planning,
— quantitative management of water resources or affecting, directly or indirectly, the availability of those resources,
— land use, with the exception of waste management;
(c) measures significantly affecting a Member State's choice between different energy sources and the general structure of its energy supply.
The Council, acting unanimously on a proposal from the Commission and after consulting the European Parliament, the Economic and Social Committee and the Committee of the Regions, may make the ordinary legislative procedure applicable to the matters referred to in the first subparagraph.
3. General action programmes setting out priority objectives to be attained shall be adopted by the European Parliament and the Council, acting in accordance with the ordinary legislative procedure and after consulting the Economic and Social Committee and the Committee of the Regions.
The measures necessary for the implementation of these programmes shall be adopted under the terms of paragraph 1 or 2, as the case may be.
4. Without prejudice to certain measures adopted by the Union, the Member States shall finance and implement the environment policy.
5. Without prejudice to the principle that the polluter should pay, if a measure based on the provisions of paragraph 1 involves costs deemed disproportionate for the public authorities of a Member State, such measure shall lay down appropriate provisions in the form of:
— temporary derogations, and/or
— financial support from the Cohesion Fund set up pursuant to Article 177.
***
Summaries of legislation
The Commission’s Scadplus pages offer summaries of Community environmental legislation, with links to General provisions, Sustainable development, Climate change, Waste Management, Air pollution, Water protection and management, Protection of nature and biodiversity, Soil protection, Chemical products, Civil protection, Noise pollution and Environment: Cooperation with third countries, as well as hotly debated issues such as CO2 emission limits on new vehicles and Tackling climate change:
http://europa.eu/scadplus/leg/en/s15000.htm
***
Commission activities
Commission news and activities can be accessed on and through the home page of Directorate-General Environment and Commissioner Stavros Dimas:
http://ec.europa.eu/environment/index_en.htm
Ralf Grahn
The Treaty of Lisbon rephrases this two-pronged approach, without altering the substance.
***
Article 175 TEC
Article 175 (ex Article 130s) of the current Treaty establishing the European Community (TEC) builds on the environmental aims of the European Community (European Union) in the preceding Article, namely to contribute to:
— preserving, protecting and improving the quality of the environment,
— protecting human health,
— prudent and rational utilisation of natural resources,
— promoting measures at international level to deal with regional or worldwide environmental problems.
The main rule on legislation is straightforward: the co-decision procedure (paragraph 1).
Harmonisation (approximation) of laws based on the internal market objectives of free movement of goods, persons, services and capital according to Article 95 TEC (referring to Article 14 TEC) is unaffected.
In sensitive areas, the member states have not been able to accept the co-decision procedure unanimously during the intergovernmental conferences. They have landed a political compromise with regard to the measures mentioned in the second paragraph of Article 175 TEC. By way of a derogation from paragraph 1, these measures have to enacted unanimously, but as a consolation to more “progressive” member states, the second subparagraph of paragraph 2 opens up the possibility to move to qualified majority voting by unanimous decision.
General environmental action programmes outside the scope of paragraph 2 are adopted by co-decision and the implementing, but implementing measures are adopted by the Council either by qualified majority voting (QMV; paragraph 1) or unanimously (paragraph 2).
Costs for environmental policies are, as a rule, borne by the member states, although temporary derogations or Cohesion Fund financing may be granted in certain cases.
Here is Article 175 TEC, as published in the latest consolidated version of the treaties, OJEU 29.12.2006 C 321 E/124–125:
(TITLE XIX
ENVIRONMENT)
Article 175 TEC
1. The Council, 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, shall decide what action is to be taken by the Community in order to achieve the objectives referred to in Article 174.
2. By way of derogation from the decision-making procedure provided for in paragraph 1 and without prejudice to Article 95, the Council, acting unanimously on a proposal from the Commission and after consulting the European Parliament, the Economic and Social Committee and the Committee of the Regions, shall adopt:
(a) provisions primarily of a fiscal nature;
(b) measures affecting:
— town and country planning,
— quantitative management of water resources or affecting, directly or indirectly, the availability of those resources,
— land use, with the exception of waste management;
(c) measures significantly affecting a Member State's choice between different energy sources and the general structure of its energy supply.
The Council may, under the conditions laid down in the first subparagraph, define those matters referred to in this paragraph on which decisions are to be taken by a qualified majority.
3. In other areas, general action programmes setting out priority objectives to be attained shall be adopted by the Council, 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.
The Council, acting under the terms of paragraph 1 or paragraph 2 according to the case, shall adopt the measures necessary for the implementation of these programmes.
4. Without prejudice to certain measures of a Community nature, the Member States shall finance and implement the environment policy.
5. Without prejudice to the principle that the polluter should pay, if a measure based on the provisions of paragraph 1 involves costs deemed disproportionate for the public authorities of a Member State, the Council shall, in the act adopting that measure, lay down appropriate provisions in the form of:
— temporary derogations, and/or
— financial support from the Cohesion Fund set up pursuant to Article 161.
***
Original Lisbon Treaty (ToL)
Article 2, point 144 amended Article 175 (OJEU 17.12.2007 C 306/87):
144) Article 175 shall be amended as follows:
(a) in paragraph 2, the second subparagraph shall be replaced by the following:
‘The Council, acting unanimously on a proposal from the Commission and after consulting the European Parliament, the Economic and Social Committee and the Committee of the Regions, may make the ordinary legislative procedure applicable to the matters referred to in the first subparagraph.’;
(b) in the first subparagraph of paragraph 3, the words ‘In other areas,’ shall be deleted and the second subparagraph shall be replaced by the following:
‘The measures necessary for the implementation of these programmes shall be adopted under the terms of paragraph 1 or 2, as the case may be.’;
(c) in paragraph 4, the words ‘certain measures of a Community nature,’ shall be replaced by ‘certain measures adopted by the Union’;
(d) in paragraph 5, the words ‘the Council shall, in the act adopting that measure, lay down’
shall be replaced by ‘such measure shall lay down’.
***
Renumbering the Treaty of Lisbon (ToL)
(The Table of equivalences of the original Treaty of Lisbon tells us that Title XIX Environment retained its name and number in the TFEU (ToL), but it was later renumbered Title XX Environment in the consolidated version of the Lisbon Treaty.)
Article 175 TEC first became Article 175 TFEU (ToL), but was then renumbered Article 192 TFEU in the consolidated version of the Lisbon Treaty (OJEU 17.12.2007 C 306/218).
***
Lisbon Treaty consolidated
Article 192 TFEU
After renumbering and amendments, Article 192 TFEU appears like this in the consolidated version of the Treaty of Lisbon (OJEU 9.5.2008 C 115/133–134):
(TITLE XX
ENVIRONMENT)
Article 192 TFEU
(ex Article 175 TEC)
1. The European Parliament and the Council, acting in accordance with the ordinary legislative procedure and after consulting the Economic and Social Committee and the Committee of the Regions, shall decide what action is to be taken by the Union in order to achieve the objectives referred to in Article 191.
2. By way of derogation from the decision-making procedure provided for in paragraph 1 and without prejudice to Article 114, the Council acting unanimously in accordance with a special legislative procedure and after consulting the European Parliament, the Economic and Social Committee and the Committee of the Regions, shall adopt:
(a) provisions primarily of a fiscal nature;
(b) measures affecting:
— town and country planning,
— quantitative management of water resources or affecting, directly or indirectly, the availability of those resources,
— land use, with the exception of waste management;
(c) measures significantly affecting a Member State's choice between different energy sources and the general structure of its energy supply.
The Council, acting unanimously on a proposal from the Commission and after consulting the European Parliament, the Economic and Social Committee and the Committee of the Regions, may make the ordinary legislative procedure applicable to the matters referred to in the first subparagraph.
3. General action programmes setting out priority objectives to be attained shall be adopted by the European Parliament and the Council, acting in accordance with the ordinary legislative procedure and after consulting the Economic and Social Committee and the Committee of the Regions.
The measures necessary for the implementation of these programmes shall be adopted under the terms of paragraph 1 or 2, as the case may be.
4. Without prejudice to certain measures adopted by the Union, the Member States shall finance and implement the environment policy.
5. Without prejudice to the principle that the polluter should pay, if a measure based on the provisions of paragraph 1 involves costs deemed disproportionate for the public authorities of a Member State, such measure shall lay down appropriate provisions in the form of:
— temporary derogations, and/or
— financial support from the Cohesion Fund set up pursuant to Article 177.
***
Summaries of legislation
The Commission’s Scadplus pages offer summaries of Community environmental legislation, with links to General provisions, Sustainable development, Climate change, Waste Management, Air pollution, Water protection and management, Protection of nature and biodiversity, Soil protection, Chemical products, Civil protection, Noise pollution and Environment: Cooperation with third countries, as well as hotly debated issues such as CO2 emission limits on new vehicles and Tackling climate change:
http://europa.eu/scadplus/leg/en/s15000.htm
***
Commission activities
Commission news and activities can be accessed on and through the home page of Directorate-General Environment and Commissioner Stavros Dimas:
http://ec.europa.eu/environment/index_en.htm
Ralf Grahn
EU state aid: Recapitalisation of banks
This is just a short note, saying that the European Commission has published its new Communication The recapitalisation of financial institutions in the current financial crisis: limitation of aid to the minimum necessary and safeguards against undue distortions of competition, in the Official Journal of the European Union (OJEU 15.1.2009 C 10/2).
The Communication is available here:
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2009:010:0002:0010:EN:PDF
After the Commission’s Banking Communication of 13 October 2008 (The application of State aid rules to measures taken in relation to financial institutions in the context of the current global financial crisis), the new complementing Communication provides guidance for new recapitalisation schemes and opens the possibility for adjustment of existing recapitalisation schemes.
Ralf Grahn
The Communication is available here:
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2009:010:0002:0010:EN:PDF
After the Commission’s Banking Communication of 13 October 2008 (The application of State aid rules to measures taken in relation to financial institutions in the context of the current global financial crisis), the new complementing Communication provides guidance for new recapitalisation schemes and opens the possibility for adjustment of existing recapitalisation schemes.
Ralf Grahn
EU Law: Defence Transfers Directive
The European Parliament adopted, with amendments, the proposed Directive on simplifying terms and conditions of transfers of defence-related products within the Community on 16 December 2008 by 545 votes to 66, with 44 abstentions. The provisional text adopted is available at the web site of the European Parliament (P6_TA(2008)0603).
The vote was based on a report (A6-0410/2008) by the EP’s Committee on the Internal Market and Consumer Protection (IMCO), prepared by the rapporteur Heidi Rühle (Greens / ALE, DE).
The new Defence Transfers Directive is awaiting formal adoption by the Council.
After publication in the Official Journal of the European Union and entry into force, the member states have 24 months to transpose the provisions of the Defence Transfers Directive into national law, by adopting the laws, regulations and administrative provisions necessary to comply with the Directive. They then have an additional 12 months to apply the measures.
The Defence Transfers Directive applies to intra-Community transfers of defence-related products (Article 1) and these products are listed in the Annex (Article 2).
***
Framework
For pedagogic reasons, we position the new Directive within the treaty framework. This comprises the legal base, i.e. the powers to legislate, and the exceptions or derogations limiting the applicability of the Defence Transfers Directive.
***
Legal base
The Defence Transfers Directive is based on Article 95 (ex Article 100a) of the Treaty establishing the European Community (TEC).
Article 95 TEC allows legislative measures, adopted by co-decision, for the approximation (harmonisation) of member states’ laws, regulations or administrative actions with regard to the internal market objectives, namely the free movement of goods, persons, services and capital mentioned in Article 14 TEC.
-----
In the consolidated Treaty of Lisbon version of the Treaty on the Functioning of the European Union (TFEU) the corresponding Articles are 114 TFEU and 26 TFEU.
***
Generally applicable derogations
According to Article 1(3) of the Defence Transfers Directive its application is subject to Articles 30 and 296 TEC.
Quantitative restrictions on imports and all measures having equivalent effect are prohibited between member states according to Article 28 TEC (ex Article 30), and the corresponding prohibition on export restrictions is contained in Article 29 TEC (ex Article 34).
Article 30 TEC (ex Article 36) then offers member states the possibility to prohibit or restrict imports or exports on certain grounds. As exceptions to (derogations from) the normally applicable treaty rules (and objectives), they have to be interpreted narrowly.
These derogations or exceptions can still be called general in the sense that they can, in principle, be applied to all sorts of exports or imports, if justified:
Article 28 TEC
Quantitative restrictions on imports and all measures having equivalent effect shall be prohibited between Member States.
Article 29 TEC
Quantitative restrictions on exports, and all measures having equivalent effect, shall be prohibited between Member States.
Article 30 TEC
The provisions of Articles 28 and 29 shall not preclude prohibitions or restrictions on imports, exports or goods in transit justified on grounds of public morality, public policy or public security; the protection of health and life of humans, animals or plants; the protection of national treasures possessing artistic, historic or archaeological value; or the protection of industrial and commercial property. Such prohibitions or restrictions shall not, however, constitute a means of arbitrary discrimination or a disguised restriction on trade between Member States.
-----
In the consolidated Lisbon Treaty, which may enter into force before the member states have transposed or begun to apply the Defence Transfers Directive, the corresponding provisions are found in the substantially unchanged Articles 34 to 36 TFEU, with the same grounds for exceptions:
· public morality
· public policy
· public security
· the protection of health and life of humans, animals or plants
· the protection of national treasures possessing artistic, historic or archaeological value
· the protection of industrial and commercial property
***
Specific derogations
The Defence Transfers Directive does not affect the existence of Article 296 TEC (ex Article 223), with its limitations on grounds of member states’ essential security interests connected with the trade in arms, munitions and war materials, although the new Directive tries to limit the application of such specific exceptions to the free flow of goods between the EU member states:
Article 296 TEC
1. The provisions of this Treaty shall not preclude the application of the following rules:
(a) no Member State shall be obliged to supply information the disclosure of which it considers contrary to the essential interests of its security;
(b) any Member State may take such measures as it considers necessary for the protection of the essential interests of its security which are connected with the production of or trade in arms, munitions and war material; such measures shall not adversely affect the conditions of competition in the common market regarding products which are not intended for specifically military purposes.
2. The Council may, acting unanimously on a proposal from the Commission, make changes to the list, which it drew up on 15 April 1958, of the products to which the provisions of paragraph 1(b) apply.
-----
In the consolidated Lisbon Treaty this provision appears as Article 346 TFEU, without substantive change.
***
Interpretative Communication on Article 296 TEC
The difficulties arising between the free movement objectives of the treaty, the essential interests of member state security connected with the production of or trade in arms, munitions and war material and the generous practices of member states to restrict the application on security and arms trade grounds are discussed in the Commission’s Interpretative Communication on the application of Article 296 of the Treaty in the field of defence procurement, Brussels, 7.12.2006 COM(2006) 779 final, available here:
http://eur-lex.europa.eu/LexUriServ/site/en/com/2006/com2006_0779en01.pdf
***
Arms, munitions and war material
The TEC and TFEU refer to the list of arms, munitions and war material drawn up by the Council on 15 April 1958. It can be changed on a proposal by the Commission by unanimous Council decision.
The Defence Transfers Directive applies to its Annex List of defence-related products.
Recital 37 of the Directive expresses the desire to update the list in the Annex of defence-related products in strict conformity with the Common Military List of the European Union (CML).
The latest version of the frequently updated CML was adopted by the Council on 10 March 2008 (equipment covered by the European Union Code of Conduct on Arms Exports) (updating and replacing the Common Military List of the European Union adopted by the Council on 19 March 2007) (CFSP), published OJEU 18.4.2008 c 98/1.
This desire is given legal force in Article 13(1) of the Defence Transfers Directive.
***
National concerns
Legal materials concerning the treaty background and reflecting the objectives of the Commission and the European Parliament can now be contrasted by an example of concerns expressed at national level, in this case the United Kingdom.
The UK House of Commons European Scrutiny Committee cleared the Defence Transfers Directive from scrutiny, after discussing national prerogatives, the continued scope for Article 296 derogations as well as the updating of the Annex list to define the scope of defence-related products for the purposes of the Directive:
http://www.publications.parliament.uk/pa/cm200809/cmselect/cmeuleg/19-ii/1913.htm
Ralf Grahn
The vote was based on a report (A6-0410/2008) by the EP’s Committee on the Internal Market and Consumer Protection (IMCO), prepared by the rapporteur Heidi Rühle (Greens / ALE, DE).
The new Defence Transfers Directive is awaiting formal adoption by the Council.
After publication in the Official Journal of the European Union and entry into force, the member states have 24 months to transpose the provisions of the Defence Transfers Directive into national law, by adopting the laws, regulations and administrative provisions necessary to comply with the Directive. They then have an additional 12 months to apply the measures.
The Defence Transfers Directive applies to intra-Community transfers of defence-related products (Article 1) and these products are listed in the Annex (Article 2).
***
Framework
For pedagogic reasons, we position the new Directive within the treaty framework. This comprises the legal base, i.e. the powers to legislate, and the exceptions or derogations limiting the applicability of the Defence Transfers Directive.
***
Legal base
The Defence Transfers Directive is based on Article 95 (ex Article 100a) of the Treaty establishing the European Community (TEC).
Article 95 TEC allows legislative measures, adopted by co-decision, for the approximation (harmonisation) of member states’ laws, regulations or administrative actions with regard to the internal market objectives, namely the free movement of goods, persons, services and capital mentioned in Article 14 TEC.
-----
In the consolidated Treaty of Lisbon version of the Treaty on the Functioning of the European Union (TFEU) the corresponding Articles are 114 TFEU and 26 TFEU.
***
Generally applicable derogations
According to Article 1(3) of the Defence Transfers Directive its application is subject to Articles 30 and 296 TEC.
Quantitative restrictions on imports and all measures having equivalent effect are prohibited between member states according to Article 28 TEC (ex Article 30), and the corresponding prohibition on export restrictions is contained in Article 29 TEC (ex Article 34).
Article 30 TEC (ex Article 36) then offers member states the possibility to prohibit or restrict imports or exports on certain grounds. As exceptions to (derogations from) the normally applicable treaty rules (and objectives), they have to be interpreted narrowly.
These derogations or exceptions can still be called general in the sense that they can, in principle, be applied to all sorts of exports or imports, if justified:
Article 28 TEC
Quantitative restrictions on imports and all measures having equivalent effect shall be prohibited between Member States.
Article 29 TEC
Quantitative restrictions on exports, and all measures having equivalent effect, shall be prohibited between Member States.
Article 30 TEC
The provisions of Articles 28 and 29 shall not preclude prohibitions or restrictions on imports, exports or goods in transit justified on grounds of public morality, public policy or public security; the protection of health and life of humans, animals or plants; the protection of national treasures possessing artistic, historic or archaeological value; or the protection of industrial and commercial property. Such prohibitions or restrictions shall not, however, constitute a means of arbitrary discrimination or a disguised restriction on trade between Member States.
-----
In the consolidated Lisbon Treaty, which may enter into force before the member states have transposed or begun to apply the Defence Transfers Directive, the corresponding provisions are found in the substantially unchanged Articles 34 to 36 TFEU, with the same grounds for exceptions:
· public morality
· public policy
· public security
· the protection of health and life of humans, animals or plants
· the protection of national treasures possessing artistic, historic or archaeological value
· the protection of industrial and commercial property
***
Specific derogations
The Defence Transfers Directive does not affect the existence of Article 296 TEC (ex Article 223), with its limitations on grounds of member states’ essential security interests connected with the trade in arms, munitions and war materials, although the new Directive tries to limit the application of such specific exceptions to the free flow of goods between the EU member states:
Article 296 TEC
1. The provisions of this Treaty shall not preclude the application of the following rules:
(a) no Member State shall be obliged to supply information the disclosure of which it considers contrary to the essential interests of its security;
(b) any Member State may take such measures as it considers necessary for the protection of the essential interests of its security which are connected with the production of or trade in arms, munitions and war material; such measures shall not adversely affect the conditions of competition in the common market regarding products which are not intended for specifically military purposes.
2. The Council may, acting unanimously on a proposal from the Commission, make changes to the list, which it drew up on 15 April 1958, of the products to which the provisions of paragraph 1(b) apply.
-----
In the consolidated Lisbon Treaty this provision appears as Article 346 TFEU, without substantive change.
***
Interpretative Communication on Article 296 TEC
The difficulties arising between the free movement objectives of the treaty, the essential interests of member state security connected with the production of or trade in arms, munitions and war material and the generous practices of member states to restrict the application on security and arms trade grounds are discussed in the Commission’s Interpretative Communication on the application of Article 296 of the Treaty in the field of defence procurement, Brussels, 7.12.2006 COM(2006) 779 final, available here:
http://eur-lex.europa.eu/LexUriServ/site/en/com/2006/com2006_0779en01.pdf
***
Arms, munitions and war material
The TEC and TFEU refer to the list of arms, munitions and war material drawn up by the Council on 15 April 1958. It can be changed on a proposal by the Commission by unanimous Council decision.
The Defence Transfers Directive applies to its Annex List of defence-related products.
Recital 37 of the Directive expresses the desire to update the list in the Annex of defence-related products in strict conformity with the Common Military List of the European Union (CML).
The latest version of the frequently updated CML was adopted by the Council on 10 March 2008 (equipment covered by the European Union Code of Conduct on Arms Exports) (updating and replacing the Common Military List of the European Union adopted by the Council on 19 March 2007) (CFSP), published OJEU 18.4.2008 c 98/1.
This desire is given legal force in Article 13(1) of the Defence Transfers Directive.
***
National concerns
Legal materials concerning the treaty background and reflecting the objectives of the Commission and the European Parliament can now be contrasted by an example of concerns expressed at national level, in this case the United Kingdom.
The UK House of Commons European Scrutiny Committee cleared the Defence Transfers Directive from scrutiny, after discussing national prerogatives, the continued scope for Article 296 derogations as well as the updating of the Annex list to define the scope of defence-related products for the purposes of the Directive:
http://www.publications.parliament.uk/pa/cm200809/cmselect/cmeuleg/19-ii/1913.htm
Ralf Grahn
Thursday, 15 January 2009
EU Law: Environment policy objectives
Sustainable development is one of the fundamental principles of the European Community (European Union), both internally and internationally.
The environmental, economic and social aspects of sustainable development are clearly felt, when we look at the environment policy objectives of the European Union.
The Treaty of Lisbon underlines the importance of action against climate change (supported by an overwhelming scientific opinion, but with vocal opponents).
We look at the current and the Lisbon Treaty provisions on the EU’s environmental policy aims.
***
Article 174 TEC
Article 174 (ex Article 130r) of the current Treaty establishing the European Community (TEC) sets out the principal aims of European Community (European Union) environment policy, which can be read on their own in paragraph 1.
Paragraph 2 contains a number of important guiding principles for environmental legislation and action. Especially the following ones are worth mentioning:
– a high level of protection
– the precautionary principle
– preventive action
– rectification at source
– the polluter pays
The paragraph evokes the seriousness of environmental concerns by promising safeguard clauses allowing provisional measures, where appropriate and limited to non-economic reasons, as well as subject to control by the European Community.
Paragraph 3 raises expectations of rational decision making, based on scientific and technical data as well as economic and social facts and considerations.
International cooperation is an activity for both the European Community and for the member states (paragraph 4).
Here is Article 174 TEC, as published in the latest consolidated version of the treaties, OJEU 29.12.2006 C 321 E/123–124:
TITLE XIX
ENVIRONMENT
Article 174 TEC
1. Community policy on the environment shall contribute to pursuit of the following objectives:
— preserving, protecting and improving the quality of the environment,
— protecting human health,
— prudent and rational utilisation of natural resources,
— promoting measures at international level to deal with regional or worldwide environmental problems.
2. Community policy on the environment shall aim at a high level of protection taking into account the diversity of situations in the various regions of the Community. It shall be based on the precautionary principle and on the principles that preventive action should be taken, that environmental damage should as a priority be rectified at source and that the polluter should pay.
In this context, harmonisation measures answering environmental protection requirements shall include, where appropriate, a safeguard clause allowing Member States to take provisional measures, for non-economic environmental reasons, subject to a Community inspection procedure.
3. In preparing its policy on the environment, the Community shall take account of:
— available scientific and technical data,
— environmental conditions in the various regions of the Community,
— the potential benefits and costs of action or lack of action,
— the economic and social development of the Community as a whole and the balanced development of its regions.
4. Within their respective spheres of competence, the Community and the Member States shall cooperate with third countries and with the competent international organisations. The arrangements for Community cooperation may be the subject of agreements between the Community and the third parties concerned, which shall be negotiated and concluded in accordance with Article 300.
The previous subparagraph shall be without prejudice to Member States' competence to negotiate in international bodies and to conclude international agreements.
***
Original Lisbon Treaty (ToL)
Article 2, point 143 amended Article 174 (OJEU 17.12.2007 C 306/87):
ENVIRONMENT (CLIMATE CHANGE)
143) Article 174 shall be amended as follows:
(a) in paragraph 1, the fourth indent shall be replaced by the following:
‘— promoting measures at international level to deal with regional or worldwide environmental problems, and in particular combating climate change.’;
(b) in paragraph 2, second subparagraph, the words ‘Community inspection procedure’ shall be replaced by ‘a procedure of inspection by the Union’;
(c) in paragraph 4, first subparagraph, the last phrase ‘, which shall be negotiated and concluded in accordance with Article 300’ shall be deleted.
***
Renumbering the Treaty of Lisbon (ToL)
The Table of equivalences of the original Treaty of Lisbon tells us that Title XIX Environment retained its name and number in the TFEU (ToL), but it was later renumbered Title XX Environment in the consolidated version of the Lisbon Treaty.
Article 174 TEC first became Article 174 TFEU (ToL), but was then renumbered Article 191 TFEU in the consolidated version of the Lisbon Treaty (OJEU 17.12.2007 C 306/218).
***
Lisbon Treaty consolidated
Article 191 TFEU
The Article was renumbered and in a number of instances ‘Community’ was replaced by ‘Union’ according to the horizontal amendment mentioned in Article 2, point 2(a) on OJEU page 42 of the original Treaty of Lisbon.
The political change desired by the intergovernmental conference (IGC 2007) was adding ‘and in particular combating climate change’ to the regional and worldwide environmental problems at international level.
Environmental policy already includes action against climate change, but the IGC 2007 felt a need to underline its commitment. The provision does not add EU powers, but growing realisation of the need to act and added emphasis may lead to more concerted action. In this respect the amendment can be called substantive.
Article 191 TFEU appears like this in the consolidated version of the Treaty of Lisbon (OJEU 9.5.2008 C 115/132–133):
TITLE XX
ENVIRONMENT
Article 191 TFEU
(ex Article 174 TEC)
1. Union policy on the environment shall contribute to pursuit of the following objectives:
— preserving, protecting and improving the quality of the environment,
— protecting human health,
— prudent and rational utilisation of natural resources,
— promoting measures at international level to deal with regional or worldwide environmental problems, and in particular combating climate change.
2. Union policy on the environment shall aim at a high level of protection taking into account the diversity of situations in the various regions of the Union. It shall be based on the precautionary principle and on the principles that preventive action should be taken, that environmental damage should as a priority be rectified at source and that the polluter should pay.
In this context, harmonisation measures answering environmental protection requirements shall include, where appropriate, a safeguard clause allowing Member States to take provisional measures, for non-economic environmental reasons, subject to a procedure of inspection by the Union.
3. In preparing its policy on the environment, the Union shall take account of:
— available scientific and technical data,
— environmental conditions in the various regions of the Union,
— the potential benefits and costs of action or lack of action,
— the economic and social development of the Union as a whole and the balanced development of its regions.
4. Within their respective spheres of competence, the Union and the Member States shall cooperate with third countries and with the competent international organisations. The arrangements for Union cooperation may be the subject of agreements between the Union and the third parties concerned.
The previous subparagraph shall be without prejudice to Member States' competence to negotiate in international bodies and to conclude international agreements.
***
Sustainable development
Preamble TEU
The Lisbon Treaty rests on the principle of sustainable development – balancing its environmental, economic and social aspects – as evoked by the Preamble of the Treaty on European Union (TEU):
DETERMINED to promote economic and social progress for their peoples, taking into account the principle of sustainable development and within the context of the accomplishment of the internal market and of reinforced cohesion and environmental protection, and to implement policies ensuring that advances in economic integration are accompanied by parallel progress in other fields.
Article 3 TEU
Sustainable development is mentioned among the aims of the European Union in Article 3(3) TEU:
3. The Union shall establish an internal market. It shall work for the sustainable development of Europe based on balanced economic growth and price stability, a highly competitive social market economy, aiming at full employment and social progress, and a high level of protection and improvement of the quality of the environment. It shall promote scientific and technological advance.
International relations
Internationally the European Union has pledged to promote sustainable development, as seen in Article 3(5) TEU:
5. In its relations with the wider world, the Union shall uphold and promote its values and interests and contribute to the protection of its citizens. It shall contribute to peace, security, the sustainable development of the Earth, solidarity and mutual respect among peoples, free and fair trade, eradication of poverty and the protection of human rights, in particular the rights of the child, as well as to the strict observance and the development of international law, including respect for the principles of the United Nations Charter.
In its international relations, the European Union pursues common policies and actions in order to foster the sustainable economic, social and environmental development of developing countries, with the primary aim of eradicating poverty. Cf. Article 21(2)(d) and (f) TEU.
***
Horizontal clause
One of the horizontal clauses of the Treaty on the Functioning of the European Union (TFEU) is Article 11, which peremptorily declares that environmental protection requirements must be integrated into EU policies and activities:
Article 11 TFEU
(ex Article 6 TEC)
Environmental protection requirements must be integrated into the definition and implementation of the Union policies and activities, in particular with a view to promoting sustainable development.
***
EU competence
In the general scheme of things, EU competence in the area of environment is set out in the following way:
Against the background of Article 2 TFEU, with the categories of European Union competence, Article 4(2)(e) TFEU mentions the environment as one of the areas of shared competence.
These general classifications are always subject to the more detailed provisions on certain policy areas.
Ralf Grahn
The environmental, economic and social aspects of sustainable development are clearly felt, when we look at the environment policy objectives of the European Union.
The Treaty of Lisbon underlines the importance of action against climate change (supported by an overwhelming scientific opinion, but with vocal opponents).
We look at the current and the Lisbon Treaty provisions on the EU’s environmental policy aims.
***
Article 174 TEC
Article 174 (ex Article 130r) of the current Treaty establishing the European Community (TEC) sets out the principal aims of European Community (European Union) environment policy, which can be read on their own in paragraph 1.
Paragraph 2 contains a number of important guiding principles for environmental legislation and action. Especially the following ones are worth mentioning:
– a high level of protection
– the precautionary principle
– preventive action
– rectification at source
– the polluter pays
The paragraph evokes the seriousness of environmental concerns by promising safeguard clauses allowing provisional measures, where appropriate and limited to non-economic reasons, as well as subject to control by the European Community.
Paragraph 3 raises expectations of rational decision making, based on scientific and technical data as well as economic and social facts and considerations.
International cooperation is an activity for both the European Community and for the member states (paragraph 4).
Here is Article 174 TEC, as published in the latest consolidated version of the treaties, OJEU 29.12.2006 C 321 E/123–124:
TITLE XIX
ENVIRONMENT
Article 174 TEC
1. Community policy on the environment shall contribute to pursuit of the following objectives:
— preserving, protecting and improving the quality of the environment,
— protecting human health,
— prudent and rational utilisation of natural resources,
— promoting measures at international level to deal with regional or worldwide environmental problems.
2. Community policy on the environment shall aim at a high level of protection taking into account the diversity of situations in the various regions of the Community. It shall be based on the precautionary principle and on the principles that preventive action should be taken, that environmental damage should as a priority be rectified at source and that the polluter should pay.
In this context, harmonisation measures answering environmental protection requirements shall include, where appropriate, a safeguard clause allowing Member States to take provisional measures, for non-economic environmental reasons, subject to a Community inspection procedure.
3. In preparing its policy on the environment, the Community shall take account of:
— available scientific and technical data,
— environmental conditions in the various regions of the Community,
— the potential benefits and costs of action or lack of action,
— the economic and social development of the Community as a whole and the balanced development of its regions.
4. Within their respective spheres of competence, the Community and the Member States shall cooperate with third countries and with the competent international organisations. The arrangements for Community cooperation may be the subject of agreements between the Community and the third parties concerned, which shall be negotiated and concluded in accordance with Article 300.
The previous subparagraph shall be without prejudice to Member States' competence to negotiate in international bodies and to conclude international agreements.
***
Original Lisbon Treaty (ToL)
Article 2, point 143 amended Article 174 (OJEU 17.12.2007 C 306/87):
ENVIRONMENT (CLIMATE CHANGE)
143) Article 174 shall be amended as follows:
(a) in paragraph 1, the fourth indent shall be replaced by the following:
‘— promoting measures at international level to deal with regional or worldwide environmental problems, and in particular combating climate change.’;
(b) in paragraph 2, second subparagraph, the words ‘Community inspection procedure’ shall be replaced by ‘a procedure of inspection by the Union’;
(c) in paragraph 4, first subparagraph, the last phrase ‘, which shall be negotiated and concluded in accordance with Article 300’ shall be deleted.
***
Renumbering the Treaty of Lisbon (ToL)
The Table of equivalences of the original Treaty of Lisbon tells us that Title XIX Environment retained its name and number in the TFEU (ToL), but it was later renumbered Title XX Environment in the consolidated version of the Lisbon Treaty.
Article 174 TEC first became Article 174 TFEU (ToL), but was then renumbered Article 191 TFEU in the consolidated version of the Lisbon Treaty (OJEU 17.12.2007 C 306/218).
***
Lisbon Treaty consolidated
Article 191 TFEU
The Article was renumbered and in a number of instances ‘Community’ was replaced by ‘Union’ according to the horizontal amendment mentioned in Article 2, point 2(a) on OJEU page 42 of the original Treaty of Lisbon.
The political change desired by the intergovernmental conference (IGC 2007) was adding ‘and in particular combating climate change’ to the regional and worldwide environmental problems at international level.
Environmental policy already includes action against climate change, but the IGC 2007 felt a need to underline its commitment. The provision does not add EU powers, but growing realisation of the need to act and added emphasis may lead to more concerted action. In this respect the amendment can be called substantive.
Article 191 TFEU appears like this in the consolidated version of the Treaty of Lisbon (OJEU 9.5.2008 C 115/132–133):
TITLE XX
ENVIRONMENT
Article 191 TFEU
(ex Article 174 TEC)
1. Union policy on the environment shall contribute to pursuit of the following objectives:
— preserving, protecting and improving the quality of the environment,
— protecting human health,
— prudent and rational utilisation of natural resources,
— promoting measures at international level to deal with regional or worldwide environmental problems, and in particular combating climate change.
2. Union policy on the environment shall aim at a high level of protection taking into account the diversity of situations in the various regions of the Union. It shall be based on the precautionary principle and on the principles that preventive action should be taken, that environmental damage should as a priority be rectified at source and that the polluter should pay.
In this context, harmonisation measures answering environmental protection requirements shall include, where appropriate, a safeguard clause allowing Member States to take provisional measures, for non-economic environmental reasons, subject to a procedure of inspection by the Union.
3. In preparing its policy on the environment, the Union shall take account of:
— available scientific and technical data,
— environmental conditions in the various regions of the Union,
— the potential benefits and costs of action or lack of action,
— the economic and social development of the Union as a whole and the balanced development of its regions.
4. Within their respective spheres of competence, the Union and the Member States shall cooperate with third countries and with the competent international organisations. The arrangements for Union cooperation may be the subject of agreements between the Union and the third parties concerned.
The previous subparagraph shall be without prejudice to Member States' competence to negotiate in international bodies and to conclude international agreements.
***
Sustainable development
Preamble TEU
The Lisbon Treaty rests on the principle of sustainable development – balancing its environmental, economic and social aspects – as evoked by the Preamble of the Treaty on European Union (TEU):
DETERMINED to promote economic and social progress for their peoples, taking into account the principle of sustainable development and within the context of the accomplishment of the internal market and of reinforced cohesion and environmental protection, and to implement policies ensuring that advances in economic integration are accompanied by parallel progress in other fields.
Article 3 TEU
Sustainable development is mentioned among the aims of the European Union in Article 3(3) TEU:
3. The Union shall establish an internal market. It shall work for the sustainable development of Europe based on balanced economic growth and price stability, a highly competitive social market economy, aiming at full employment and social progress, and a high level of protection and improvement of the quality of the environment. It shall promote scientific and technological advance.
International relations
Internationally the European Union has pledged to promote sustainable development, as seen in Article 3(5) TEU:
5. In its relations with the wider world, the Union shall uphold and promote its values and interests and contribute to the protection of its citizens. It shall contribute to peace, security, the sustainable development of the Earth, solidarity and mutual respect among peoples, free and fair trade, eradication of poverty and the protection of human rights, in particular the rights of the child, as well as to the strict observance and the development of international law, including respect for the principles of the United Nations Charter.
In its international relations, the European Union pursues common policies and actions in order to foster the sustainable economic, social and environmental development of developing countries, with the primary aim of eradicating poverty. Cf. Article 21(2)(d) and (f) TEU.
***
Horizontal clause
One of the horizontal clauses of the Treaty on the Functioning of the European Union (TFEU) is Article 11, which peremptorily declares that environmental protection requirements must be integrated into EU policies and activities:
Article 11 TFEU
(ex Article 6 TEC)
Environmental protection requirements must be integrated into the definition and implementation of the Union policies and activities, in particular with a view to promoting sustainable development.
***
EU competence
In the general scheme of things, EU competence in the area of environment is set out in the following way:
Against the background of Article 2 TFEU, with the categories of European Union competence, Article 4(2)(e) TFEU mentions the environment as one of the areas of shared competence.
These general classifications are always subject to the more detailed provisions on certain policy areas.
Ralf Grahn
EU Law: New Defence Procurement Directive
Yesterday, 14 January 2009 the European Parliament adopted the new Defence Procurement Directive, with amendments. By 597 votes in favour to 69 against with 33 abstentions, the EP overwhelmingly approved the report prepared by Alexander Graf Lambsdorff (ALDE, DE).
The new Directive concerns public contracts in the fields of defence and security, and it is based on the Commission’s Proposal for a directive of the European Parliament and of the Council on the coordination of procedures for the award of certain public works contracts, public supply contracts and public service contracts in the fields of defence and security.
The provisional adopted EP legislative resolution text is to be published during this Thursday through this web page:
http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+TA+20090114+TOC+DOC+XML+V0//EN&language=EN
***
EP press release
At the moment of writing, there is a press release, European defence and security market strengthened: deal on public contracts (14 January 2009), available here:
http://www.europarl.europa.eu/pdfs/news/expert/infopress/20090113IPR46066/20090113IPR46066_en.pdf
In addition to the main points of the Directive, the press release informs us that the adopted amendments (somewhat different from the Committee report) have been agreed with the Council.
This should set the scene for final texts and translations, formal adoption by the Council, signing by the Council and the European Parliament and publication in the Official Journal of the European Union in the near future.
After that the member states of the European Union have to adopt the laws and regulations necessary to implement the new Directive.
***
Committee report
.
The vote of the European Parliament was based on the report by the Committee on the Internal Market and Consumer Protection, prepared by the Rapporteur Alexander Graf Lambsdorff. The Report A6-0415/2008, including the proposed amendments, is available here:
http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//NONSGML+REPORT+A6-2008-0415+0+DOC+PDF+V0//EN&language=EN
***
Commission’s Defence package
As we have seen in earlier posts, the Commission’s Defence package consisted of three main parts. There was the Communication on the European defence industry COM(2007) 764 final. Then there was the proposed Directive on intra-Community transfers of defence products COM(2007) 785 final, adopted with amendments by the European Parliament 16 December 2008 and set to be published in the Official Journal of the European Union this spring.
Proposal: Defence Procurement Directive
The third main ingredient was the proposed Directive on the coordination of procedures for the award of certain public works contracts, public supply contracts and public service contracts in the fields of defence and security, Brussels, 5.12.2007 COM(2007) 766 final, available here:
http://ec.europa.eu/enterprise/defence/defence_docs/COMM_2007_0765_F_EN.pdf
The Commission’s five page press release Commission proposes enhancing openness and transparency in EU defence markets (Brussels, 5 December 2007 MEMO/07/547) offers a quick overview of the proposal:
http://ec.europa.eu/enterprise/defence/defence_docs/MEMO-07-547_EN.pdf
The proposed Defence Procurement Directive would apply specifically to the procurement of arms, munitions and war material, as well as related works and services within the European Union. At the same time, member states could also use it for certain particularly sensitive non-military procurements in areas such as protection against terrorism, where contracts often have similar features to defence contracts.
Procurement of non-sensitive and non-military equipment would still be covered by the current Public Procurement Directive 2004/18/EC, even if it is procured by awarding authorities in the field of defence and security.
The proposed Defence Procurement Directive – like the general Procurement Directive 2004/18/EC – wouldl apply subject to Article 296 of the Treaty establishing the European Community (TEC), which means that Member States can still exempt defence and security contracts if this is necessary for the protection of their essential security interests.
(For a discussion on secret contracts and security concerns evoked by Article 14 of the Procurement Directive, you can read the blog post EU Procurement Directive: Secret contracts and security measures, 13 January 2009. The Article 10 exclusion of defence contracts was discussed in the 3 January 2009 blog post EU Law: Defence procurement.)
The Commission’s proposal was accompanied by two Staff Working Documents. The first was an impact assessment. For the legally minded, the discussion about Article 296 TEC and Article 14 of the Procurement Directive is of interest. The 99 page impact assessment is available here:
http://ec.europa.eu/internal_market/publicprocurement/docs/defence/impact_assessment_en.pdf
The second Commission Staff Working Document was an interpretative communication on the application of Article 296 TEC and an impact assessment summary, Brussels, 7.12.2006 SEC(2006) 1555. It is available here:
http://ec.europa.eu/internal_market/publicprocurement/docs/defence/summary_en.pdf
***
With the adoption of the new Defence Procurement Directive the European Union takes a step towards enhanced security for its citizens and better use of taxpayers’ money through at least some internal market benefits in the field of public contracts relating to defence and security.
This blog will return to the Defence Procurement Directive, but before that we are going to look at the contents of the other Directive, the one on defence equipment transfers within the European Union.
Ralf Grahn
The new Directive concerns public contracts in the fields of defence and security, and it is based on the Commission’s Proposal for a directive of the European Parliament and of the Council on the coordination of procedures for the award of certain public works contracts, public supply contracts and public service contracts in the fields of defence and security.
The provisional adopted EP legislative resolution text is to be published during this Thursday through this web page:
http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+TA+20090114+TOC+DOC+XML+V0//EN&language=EN
***
EP press release
At the moment of writing, there is a press release, European defence and security market strengthened: deal on public contracts (14 January 2009), available here:
http://www.europarl.europa.eu/pdfs/news/expert/infopress/20090113IPR46066/20090113IPR46066_en.pdf
In addition to the main points of the Directive, the press release informs us that the adopted amendments (somewhat different from the Committee report) have been agreed with the Council.
This should set the scene for final texts and translations, formal adoption by the Council, signing by the Council and the European Parliament and publication in the Official Journal of the European Union in the near future.
After that the member states of the European Union have to adopt the laws and regulations necessary to implement the new Directive.
***
Committee report
.
The vote of the European Parliament was based on the report by the Committee on the Internal Market and Consumer Protection, prepared by the Rapporteur Alexander Graf Lambsdorff. The Report A6-0415/2008, including the proposed amendments, is available here:
http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//NONSGML+REPORT+A6-2008-0415+0+DOC+PDF+V0//EN&language=EN
***
Commission’s Defence package
As we have seen in earlier posts, the Commission’s Defence package consisted of three main parts. There was the Communication on the European defence industry COM(2007) 764 final. Then there was the proposed Directive on intra-Community transfers of defence products COM(2007) 785 final, adopted with amendments by the European Parliament 16 December 2008 and set to be published in the Official Journal of the European Union this spring.
Proposal: Defence Procurement Directive
The third main ingredient was the proposed Directive on the coordination of procedures for the award of certain public works contracts, public supply contracts and public service contracts in the fields of defence and security, Brussels, 5.12.2007 COM(2007) 766 final, available here:
http://ec.europa.eu/enterprise/defence/defence_docs/COMM_2007_0765_F_EN.pdf
The Commission’s five page press release Commission proposes enhancing openness and transparency in EU defence markets (Brussels, 5 December 2007 MEMO/07/547) offers a quick overview of the proposal:
http://ec.europa.eu/enterprise/defence/defence_docs/MEMO-07-547_EN.pdf
The proposed Defence Procurement Directive would apply specifically to the procurement of arms, munitions and war material, as well as related works and services within the European Union. At the same time, member states could also use it for certain particularly sensitive non-military procurements in areas such as protection against terrorism, where contracts often have similar features to defence contracts.
Procurement of non-sensitive and non-military equipment would still be covered by the current Public Procurement Directive 2004/18/EC, even if it is procured by awarding authorities in the field of defence and security.
The proposed Defence Procurement Directive – like the general Procurement Directive 2004/18/EC – wouldl apply subject to Article 296 of the Treaty establishing the European Community (TEC), which means that Member States can still exempt defence and security contracts if this is necessary for the protection of their essential security interests.
(For a discussion on secret contracts and security concerns evoked by Article 14 of the Procurement Directive, you can read the blog post EU Procurement Directive: Secret contracts and security measures, 13 January 2009. The Article 10 exclusion of defence contracts was discussed in the 3 January 2009 blog post EU Law: Defence procurement.)
The Commission’s proposal was accompanied by two Staff Working Documents. The first was an impact assessment. For the legally minded, the discussion about Article 296 TEC and Article 14 of the Procurement Directive is of interest. The 99 page impact assessment is available here:
http://ec.europa.eu/internal_market/publicprocurement/docs/defence/impact_assessment_en.pdf
The second Commission Staff Working Document was an interpretative communication on the application of Article 296 TEC and an impact assessment summary, Brussels, 7.12.2006 SEC(2006) 1555. It is available here:
http://ec.europa.eu/internal_market/publicprocurement/docs/defence/summary_en.pdf
***
With the adoption of the new Defence Procurement Directive the European Union takes a step towards enhanced security for its citizens and better use of taxpayers’ money through at least some internal market benefits in the field of public contracts relating to defence and security.
This blog will return to the Defence Procurement Directive, but before that we are going to look at the contents of the other Directive, the one on defence equipment transfers within the European Union.
Ralf Grahn
Wednesday, 14 January 2009
EU Law: Defence equipment transfers
Is the European Union causing all the red tape, or could there be other culprits?
***
Defence equipment transfers
The internal market and the emergence of a European Defence Equipment Market (EDEM) is hampered by 27 different national licensing regimes, even between member states of the European Union.
One of the Commission’s cautious steps to improve the prospects for the EU defence industry and to promote a functioning internal market in defence equipment, was to single out intra-EU transfers for a proposed Directive.
In the words of the commission, the objective of the proposal was to reduce the obstacles to the circulation of defence-related goods and services (products) within the internal market, and to diminish the resulting distortions of competition, by simplifying and harmonizing licensing conditions and procedures. In view of the specific features of the defence market and the need to protect national security, the Commission did not propose to abolish licensing requirements but rather to replace them by a streamlined system of general or global licenses, to which individual licensing would remain the exception. Such system would provide guarantees as to the reliability of the recipient to respect restrictions prescribed by the member state of origin.
The proposed Directive on simplifying terms and conditions of transfers of defence-related products within the Community (Brussels, 5.12.2007 COM(2007) 765 final), is available here:
http://ec.europa.eu/enterprise/defence/defence_docs/COMM_2007_0765_F_EN.pdf
***
Quick overview
For a quick view of the Commission’s efforts to promote cross-border procurement of member states’ armed forces, there is a four page press release, Commission proposes cutting red tape in EU defence industry (MEMO/07/546, Brussels 5th December 2007):
http://ec.europa.eu/enterprise/defence/defence_docs/MEMO-07-546_EN.pdf
National red tape is said to cost EU companies and administrations € 433 million directly per year and € 2.73 billion indirectly, although not one of 11500 annual requests for intra-EU transfer licences has been formally denied since 2003.
***
Impact assessment
The proposed Directive on intra-EU transfers was accompanied by two Commission Staff Working Documents. The impact assessment summary SEC(2007) 1574 is available here:
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:52007SC1594:EN:HTML
The longer impact assessment SEC(2007) 1593 is available here:
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:52007SC1593:EN:HTML
The impact assessment and summary lay out the reasons for the proposal and the chosen options.
***
European Parliament
At its first reading on 16 December 2008, the European Parliament approved the proposed Directive with amendments:
http://www.europarl.europa.eu/sides/getDoc.do;jsessionid=FE68FF66A91E1C708351395837549126.node1?pubRef=-//EP//TEXT+TA+P6-TA-2008-0603+0+DOC+XML+V0//EN
***
Future posts will look at the contents of the proposed Directive on defence-related products.
Ralf Grahn
***
Defence equipment transfers
The internal market and the emergence of a European Defence Equipment Market (EDEM) is hampered by 27 different national licensing regimes, even between member states of the European Union.
One of the Commission’s cautious steps to improve the prospects for the EU defence industry and to promote a functioning internal market in defence equipment, was to single out intra-EU transfers for a proposed Directive.
In the words of the commission, the objective of the proposal was to reduce the obstacles to the circulation of defence-related goods and services (products) within the internal market, and to diminish the resulting distortions of competition, by simplifying and harmonizing licensing conditions and procedures. In view of the specific features of the defence market and the need to protect national security, the Commission did not propose to abolish licensing requirements but rather to replace them by a streamlined system of general or global licenses, to which individual licensing would remain the exception. Such system would provide guarantees as to the reliability of the recipient to respect restrictions prescribed by the member state of origin.
The proposed Directive on simplifying terms and conditions of transfers of defence-related products within the Community (Brussels, 5.12.2007 COM(2007) 765 final), is available here:
http://ec.europa.eu/enterprise/defence/defence_docs/COMM_2007_0765_F_EN.pdf
***
Quick overview
For a quick view of the Commission’s efforts to promote cross-border procurement of member states’ armed forces, there is a four page press release, Commission proposes cutting red tape in EU defence industry (MEMO/07/546, Brussels 5th December 2007):
http://ec.europa.eu/enterprise/defence/defence_docs/MEMO-07-546_EN.pdf
National red tape is said to cost EU companies and administrations € 433 million directly per year and € 2.73 billion indirectly, although not one of 11500 annual requests for intra-EU transfer licences has been formally denied since 2003.
***
Impact assessment
The proposed Directive on intra-EU transfers was accompanied by two Commission Staff Working Documents. The impact assessment summary SEC(2007) 1574 is available here:
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:52007SC1594:EN:HTML
The longer impact assessment SEC(2007) 1593 is available here:
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:52007SC1593:EN:HTML
The impact assessment and summary lay out the reasons for the proposal and the chosen options.
***
European Parliament
At its first reading on 16 December 2008, the European Parliament approved the proposed Directive with amendments:
http://www.europarl.europa.eu/sides/getDoc.do;jsessionid=FE68FF66A91E1C708351395837549126.node1?pubRef=-//EP//TEXT+TA+P6-TA-2008-0603+0+DOC+XML+V0//EN
***
Future posts will look at the contents of the proposed Directive on defence-related products.
Ralf Grahn
EU Procurement Directive: International rules
Contracts with certain public entities outside the European Economic Area (EEA) are excluded from the European Community (European Union) Procurement Directive.
***
Article 15
According to Article 15 of the Procurement Directive 2004/18/EC, certain contracts awarded pursuant to international rules are excluded from the scope of the Directive:
Article 15
Contracts awarded pursuant to international rules
This Directive shall not apply to public contracts governed by different procedural rules and awarded:
(a) pursuant to an international agreement concluded in conformity with the Treaty between a Member State and one or more third countries and covering supplies or works intended for the joint implementation or exploitation of a work by the signatory States or services intended for the joint implementation or exploitation of a project by the signatory States; all agreements shall be communicated to the Commission, which may consult the Advisory Committee for Public Contracts referred to in Article 77;
(b) pursuant to a concluded international agreement relating to the stationing of troops and concerning the undertakings of a Member State or a third country;
(c) pursuant to the particular procedure of an international organisation.
***
International rules explained
Recital 22 of the Procurement mentions international rules briefly, without going into details:
(22) Provision should be made for cases in which it is possible to refrain from applying the measures for coordinating procedures on grounds relating to State security or secrecy, or because specific rules on the awarding of contracts which derive from international agreements, relating to the stationing of troops, or which are specific to international organisations are applicable.
***
Examples
Article 15(a) could cover for instance international development assistance agreements between an EEA member and an outside country (third state) on a large infrastructure project. (The WTO GPA does not apply to procurement made in furtherance of tied aid to developing countries.)
Article 15(b) could apply to host nation investments relating to the stationing of NATO troops.
Article 15(c) could apply if there is a link such as a project between a contracting authority and an international organisation with its own procurement rules. One example of procurement rules of an international organisation is the United Nations Procurement Manual based on the Financial Rules and Regulations:
http://www.un.org/Depts/ptd/pdf/pm_english_08.pdf
The World Bank has general guidelines and consultancy guidelines for projects financed in whole or in part by a loan from the International Bank for Reconstruction and Development (IBRD) or a credit or grant from the International Development Association (IDA), on the policies that govern the procurement of goods, works, and services:
http://web.worldbank.org/WBSITE/EXTERNAL/PROJECTS/PROCUREMENT/0,,contentMDK:50002392~pagePK:84269~piPK:60001558~theSitePK:84266,00.html
In each of these cases there are applicable international procedures, which exclude the Procurement Directive.
Ralf Grahn
***
Article 15
According to Article 15 of the Procurement Directive 2004/18/EC, certain contracts awarded pursuant to international rules are excluded from the scope of the Directive:
Article 15
Contracts awarded pursuant to international rules
This Directive shall not apply to public contracts governed by different procedural rules and awarded:
(a) pursuant to an international agreement concluded in conformity with the Treaty between a Member State and one or more third countries and covering supplies or works intended for the joint implementation or exploitation of a work by the signatory States or services intended for the joint implementation or exploitation of a project by the signatory States; all agreements shall be communicated to the Commission, which may consult the Advisory Committee for Public Contracts referred to in Article 77;
(b) pursuant to a concluded international agreement relating to the stationing of troops and concerning the undertakings of a Member State or a third country;
(c) pursuant to the particular procedure of an international organisation.
***
International rules explained
Recital 22 of the Procurement mentions international rules briefly, without going into details:
(22) Provision should be made for cases in which it is possible to refrain from applying the measures for coordinating procedures on grounds relating to State security or secrecy, or because specific rules on the awarding of contracts which derive from international agreements, relating to the stationing of troops, or which are specific to international organisations are applicable.
***
Examples
Article 15(a) could cover for instance international development assistance agreements between an EEA member and an outside country (third state) on a large infrastructure project. (The WTO GPA does not apply to procurement made in furtherance of tied aid to developing countries.)
Article 15(b) could apply to host nation investments relating to the stationing of NATO troops.
Article 15(c) could apply if there is a link such as a project between a contracting authority and an international organisation with its own procurement rules. One example of procurement rules of an international organisation is the United Nations Procurement Manual based on the Financial Rules and Regulations:
http://www.un.org/Depts/ptd/pdf/pm_english_08.pdf
The World Bank has general guidelines and consultancy guidelines for projects financed in whole or in part by a loan from the International Bank for Reconstruction and Development (IBRD) or a credit or grant from the International Development Association (IDA), on the policies that govern the procurement of goods, works, and services:
http://web.worldbank.org/WBSITE/EXTERNAL/PROJECTS/PROCUREMENT/0,,contentMDK:50002392~pagePK:84269~piPK:60001558~theSitePK:84266,00.html
In each of these cases there are applicable international procedures, which exclude the Procurement Directive.
Ralf Grahn
Tuesday, 13 January 2009
EU defence industry and market: Is there a future?
A year ago the Commission assessed the prospects of the defence technological and industrial base (DTIB), a prerequisite for the European Security and Defence Policy (ESDP). Little bang for the buck (or euro), was the finding.
While the defence budget of the United States is “only” twice as large as that of the European Union member states combined, the qualitative differences are much greater. Most of the European defence budgets are swallowed by upkeep of national armies. The USA devotes some 35% of its total budget to investment compared to only about 20% in Europe. The US outspends Europe by six to one in defence research and development (R&D).
Moreover, R&D investment in Europe is fragmented along national lines, leading to duplication and waste of scarce resources.
The common European security interests are fulfilled poorly, but in addition fragmented defence industries and markets face a bleak future.
***
European defence industry
Since defence spending and defence industries are largely in the domain of the member states, the Commission in its Defence package chose a cautious approach to improving the situation.
The main findings as well as the reasons for and policy measures for improvement were laid out in the Communication A strategy for a stronger and more competitive European defence industry (Brussels, 5.12.2007 COM(2007) 764 final) and in two accompanying Staff Working Documents, an impact assessment (SEC(2007) 1596) and an impact assessment summary (SEC(2007) 1597).
The documents are available through the Commission’s DG Industry and Enterprise web page Towards an EU Defence Equipment Policy:
http://ec.europa.eu/enterprise/defence/eu_defence_policy.htm
They form the basis for two proposed Directives and a number of issues seen as maturing only in the middle or the long term.
***
Why Europe?
The security and prosperity of EU citizens is the short answer to why we need the European Union (a better EU, for sure). But most people need concrete examples of policies where the nation states are increasingly ill equipped to deliver the public goods on their own and where the European Union can (or could) offer more.
Climate change, energy, financial supervision and the euro have been in the headlines lately. They all show the need for more Europe, not less. Defence and related industries are among the long line of other policy areas, where the needs for improved European policies are compelling.
The Communication on the European defence industry is worth reading, and it will serve as the starting point for a couple of blog posts on the proposed legislative measures, including defence procurement.
Ralf Grahn
While the defence budget of the United States is “only” twice as large as that of the European Union member states combined, the qualitative differences are much greater. Most of the European defence budgets are swallowed by upkeep of national armies. The USA devotes some 35% of its total budget to investment compared to only about 20% in Europe. The US outspends Europe by six to one in defence research and development (R&D).
Moreover, R&D investment in Europe is fragmented along national lines, leading to duplication and waste of scarce resources.
The common European security interests are fulfilled poorly, but in addition fragmented defence industries and markets face a bleak future.
***
European defence industry
Since defence spending and defence industries are largely in the domain of the member states, the Commission in its Defence package chose a cautious approach to improving the situation.
The main findings as well as the reasons for and policy measures for improvement were laid out in the Communication A strategy for a stronger and more competitive European defence industry (Brussels, 5.12.2007 COM(2007) 764 final) and in two accompanying Staff Working Documents, an impact assessment (SEC(2007) 1596) and an impact assessment summary (SEC(2007) 1597).
The documents are available through the Commission’s DG Industry and Enterprise web page Towards an EU Defence Equipment Policy:
http://ec.europa.eu/enterprise/defence/eu_defence_policy.htm
They form the basis for two proposed Directives and a number of issues seen as maturing only in the middle or the long term.
***
Why Europe?
The security and prosperity of EU citizens is the short answer to why we need the European Union (a better EU, for sure). But most people need concrete examples of policies where the nation states are increasingly ill equipped to deliver the public goods on their own and where the European Union can (or could) offer more.
Climate change, energy, financial supervision and the euro have been in the headlines lately. They all show the need for more Europe, not less. Defence and related industries are among the long line of other policy areas, where the needs for improved European policies are compelling.
The Communication on the European defence industry is worth reading, and it will serve as the starting point for a couple of blog posts on the proposed legislative measures, including defence procurement.
Ralf Grahn
EU Procurement Directive: Secret contracts and security measures
The aim of the European Community (European Union) Procurement Directive to achieve open, fair and taxpayer-friendly procedures in the internal market can collide with governments’ concerns for secrecy, special security measures or other essential state interests.
We look at how the Procurement Directive caters for governments’ security concerns. This leads us to the treaty rules governing the internal market and the scope for derogations. Finally, we point to proposed legislation concerning defence and security procurement.
***
Procurement Directive Article 14
Article 14 of the Procurement Directive 2004/18/EC sets out exceptions to the application of the Directive on grounds of secrecy, security and other essential interests of an EU member state:
Article 14
Secret contracts and contracts requiring special security measures
This Directive shall not apply to public contracts when they are declared to be secret, when their performance must be accompanied by special security measures in accordance with the laws, regulations or administrative provisions in force in the Member State concerned, or when the protection of the essential interests of that Member State so requires.
***
Three grounds for exceptions
Article 14 set out three grounds for exempting public contracts from the scope of the Directive:
1) Declared secret
2) Special security measures in accordance with the laws, regulations or administrative provisions in force in the member state
3) Protection of essential interests of the member state
As always, exceptions are interpreted narrowly. If challenged, the exception has to be justified.
***
Defence procurement
Given the grounds above, we naturally think about military procurement, but we are reminded of special rules pertaining to procurement of weapons and the like.
In an earlier post, we looked at the application of the Procurement Directive to defence procurement, but subject to the exceptions made under Article 296 of the Treaty establishing the European Community (TEC). We also discussed ongoing efforts to create a legal regime for defence procurement in the internal market. As a reminder, here is the basic provision of the Procurement Directive:
Article 10
Defence procurement
This Directive shall apply to public contracts awarded by contracting authorities in the field of defence, subject to Article 296 of the Treaty.
***
More than defence procurement
We saw that the Procurement Directive applies to defence procurement, unless a justified exception is made under Article 296 TEC.
The existence of Article 10 leads us to conclude that Article 14 of the Procurement Directive 2004/18/EC is meant to have reasons of its own.
Cf. ECJ C-252/01 Commission v. Belgium.
***
Public security exemption explained
Recital 6 of the Procurement Directive mentions public security among grounds for exceptions to the application of the Directive, if the measures are necessary and taken in conformity with the treaty:
(6) Nothing in this Directive should prevent the imposition or enforcement of measures necessary to protect public policy, public morality, public security, health, human and animal life or the preservation of plant life, in particular with a view to sustainable development, provided that these measures are in conformity with the Treaty.
***
State security or secrecy
Recital 22 of the Procurement Directive explains the intention to exempt procurement procedures from the application of the Directive on grounds relating to state security or secrecy:
(22) Provision should be made for cases in which it is possible to refrain from applying the measures for coordinating procedures on grounds relating to State security or secrecy, or because specific rules on the awarding of contracts which derive from international agreements, relating to the stationing of troops, or which are specific to international organisations are applicable.
***
Commission Guide: Derogations
The Commission’s Guide to the Community Rules on public supply contracts presented the secrecy and security exceptions according to the old Directive 93/36/EEC and added its interpretation of the scope of these exceptions (page 20). Note that the TEC Articles mentioned have been renumbered:
Lastly, the Directive excludes public supply contracts from its scope:
· where the supplies are declared secret; or
· where their performance must be accompanied by special security measures in accordance with the provisions laid down by law, regulation or administrative action in force in the Member State concerned; or
· where the protection of the basic interests of that State’s security so requires.
These last three exclusions from the Directive give concrete expression, in the public procurement field, to the powers already reserved for the Member States by Article 36 of the EC Treaty, which allows them in certain cases to derogate from the prohibitions on import and export restrictions enshrined in Articles 30 and 34 respectively. These three exclusions from the Directive must be interpreted as strictly and according to the same criteria as exceptions under Article 36.
***
Free movement of goods and derogations
In the case of supply contracts, we have now reconnected with the treaty framework for the free movement of goods. The current Articles 28 and 29 set out the basic prohibitions against restrictions on imports/exports and all measures having equivalent effect:
Article 28 TEC (ex Article 30)
Quantitative restrictions on imports and all measures having equivalent effect shall be prohibited between Member States.
Article 29 TEC (ex Article 34)
Quantitative restrictions on exports, and all measures having equivalent effect, shall be prohibited between Member States.
The current Article 30 TEC lays down the grounds for derogations and their limits. These restrictions shall not constitute a means of arbitrary discrimination or a disguised restriction on trade between member states.
Article 30 as published in the latest consolidated version of the treaties, OJEU 29.12.2006 C321 E/53:
Article 30 TEC (ex Article 36)
The provisions of Articles 28 and 29 shall not preclude prohibitions or restrictions on imports,
exports or goods in transit justified on grounds of public morality, public policy or public security; the protection of health and life of humans, animals or plants; the protection of national treasures possessing artistic, historic or archaeological value; or the protection of industrial and commercial property. Such prohibitions or restrictions shall not, however, constitute a means of arbitrary discrimination or a disguised restriction on trade between Member States.
***
Conclusion
Since secrecy, security and essential state interests apply to all types of contracts covered by the Procurement Directive, we may infer that parallel reasoning applies to derogations from all four internal market freedoms.
***
De lege ferenda
For more information on and discussion about security issues related to procurement as well as proposed legislation, you can turn to the Commission’s Defence package, which includes both military and other security issues. The Communication and the preparatory acts are available here:
http://ec.europa.eu/enterprise/defence/eu_defence_policy.htm
The main three documents are:
The Communication: A Strategy for a Stronger and more Competitive European Defence Industry
The proposed Directive on intra-EU transfers of Defence Products
The proposed Directive on Defence Procurement
Some comments on the proposals are included in the earlier blog post on defence procurement.
Ralf Grahn
We look at how the Procurement Directive caters for governments’ security concerns. This leads us to the treaty rules governing the internal market and the scope for derogations. Finally, we point to proposed legislation concerning defence and security procurement.
***
Procurement Directive Article 14
Article 14 of the Procurement Directive 2004/18/EC sets out exceptions to the application of the Directive on grounds of secrecy, security and other essential interests of an EU member state:
Article 14
Secret contracts and contracts requiring special security measures
This Directive shall not apply to public contracts when they are declared to be secret, when their performance must be accompanied by special security measures in accordance with the laws, regulations or administrative provisions in force in the Member State concerned, or when the protection of the essential interests of that Member State so requires.
***
Three grounds for exceptions
Article 14 set out three grounds for exempting public contracts from the scope of the Directive:
1) Declared secret
2) Special security measures in accordance with the laws, regulations or administrative provisions in force in the member state
3) Protection of essential interests of the member state
As always, exceptions are interpreted narrowly. If challenged, the exception has to be justified.
***
Defence procurement
Given the grounds above, we naturally think about military procurement, but we are reminded of special rules pertaining to procurement of weapons and the like.
In an earlier post, we looked at the application of the Procurement Directive to defence procurement, but subject to the exceptions made under Article 296 of the Treaty establishing the European Community (TEC). We also discussed ongoing efforts to create a legal regime for defence procurement in the internal market. As a reminder, here is the basic provision of the Procurement Directive:
Article 10
Defence procurement
This Directive shall apply to public contracts awarded by contracting authorities in the field of defence, subject to Article 296 of the Treaty.
***
More than defence procurement
We saw that the Procurement Directive applies to defence procurement, unless a justified exception is made under Article 296 TEC.
The existence of Article 10 leads us to conclude that Article 14 of the Procurement Directive 2004/18/EC is meant to have reasons of its own.
Cf. ECJ C-252/01 Commission v. Belgium.
***
Public security exemption explained
Recital 6 of the Procurement Directive mentions public security among grounds for exceptions to the application of the Directive, if the measures are necessary and taken in conformity with the treaty:
(6) Nothing in this Directive should prevent the imposition or enforcement of measures necessary to protect public policy, public morality, public security, health, human and animal life or the preservation of plant life, in particular with a view to sustainable development, provided that these measures are in conformity with the Treaty.
***
State security or secrecy
Recital 22 of the Procurement Directive explains the intention to exempt procurement procedures from the application of the Directive on grounds relating to state security or secrecy:
(22) Provision should be made for cases in which it is possible to refrain from applying the measures for coordinating procedures on grounds relating to State security or secrecy, or because specific rules on the awarding of contracts which derive from international agreements, relating to the stationing of troops, or which are specific to international organisations are applicable.
***
Commission Guide: Derogations
The Commission’s Guide to the Community Rules on public supply contracts presented the secrecy and security exceptions according to the old Directive 93/36/EEC and added its interpretation of the scope of these exceptions (page 20). Note that the TEC Articles mentioned have been renumbered:
Lastly, the Directive excludes public supply contracts from its scope:
· where the supplies are declared secret; or
· where their performance must be accompanied by special security measures in accordance with the provisions laid down by law, regulation or administrative action in force in the Member State concerned; or
· where the protection of the basic interests of that State’s security so requires.
These last three exclusions from the Directive give concrete expression, in the public procurement field, to the powers already reserved for the Member States by Article 36 of the EC Treaty, which allows them in certain cases to derogate from the prohibitions on import and export restrictions enshrined in Articles 30 and 34 respectively. These three exclusions from the Directive must be interpreted as strictly and according to the same criteria as exceptions under Article 36.
***
Free movement of goods and derogations
In the case of supply contracts, we have now reconnected with the treaty framework for the free movement of goods. The current Articles 28 and 29 set out the basic prohibitions against restrictions on imports/exports and all measures having equivalent effect:
Article 28 TEC (ex Article 30)
Quantitative restrictions on imports and all measures having equivalent effect shall be prohibited between Member States.
Article 29 TEC (ex Article 34)
Quantitative restrictions on exports, and all measures having equivalent effect, shall be prohibited between Member States.
The current Article 30 TEC lays down the grounds for derogations and their limits. These restrictions shall not constitute a means of arbitrary discrimination or a disguised restriction on trade between member states.
Article 30 as published in the latest consolidated version of the treaties, OJEU 29.12.2006 C321 E/53:
Article 30 TEC (ex Article 36)
The provisions of Articles 28 and 29 shall not preclude prohibitions or restrictions on imports,
exports or goods in transit justified on grounds of public morality, public policy or public security; the protection of health and life of humans, animals or plants; the protection of national treasures possessing artistic, historic or archaeological value; or the protection of industrial and commercial property. Such prohibitions or restrictions shall not, however, constitute a means of arbitrary discrimination or a disguised restriction on trade between Member States.
***
Conclusion
Since secrecy, security and essential state interests apply to all types of contracts covered by the Procurement Directive, we may infer that parallel reasoning applies to derogations from all four internal market freedoms.
***
De lege ferenda
For more information on and discussion about security issues related to procurement as well as proposed legislation, you can turn to the Commission’s Defence package, which includes both military and other security issues. The Communication and the preparatory acts are available here:
http://ec.europa.eu/enterprise/defence/eu_defence_policy.htm
The main three documents are:
The Communication: A Strategy for a Stronger and more Competitive European Defence Industry
The proposed Directive on intra-EU transfers of Defence Products
The proposed Directive on Defence Procurement
Some comments on the proposals are included in the earlier blog post on defence procurement.
Ralf Grahn
Monday, 12 January 2009
EU Law: Commission Annual RTD Report
Annually – although not at the beginning of each year – the Commission presents a report on research and technological development (RTD) activities to the European Parliament and to the Council.
Reports such as this can sound boring, but to students and other interested persons they are valuable resources. These reports offer both quick overviews and distilled knowledge about the policy area in question.
So, if research, technological development, innovation, the FP7 or the like is up your alley, read on.
***
Article 173 TEC
Article 173 (ex Article 130p) of the current Treaty establishing the European Community (TEC) contains an obligation for the Commission to report on research and technological development (RTD) activities and dissemination of results during the previous year. The report shall include the work programme for the current year.
This report is supposed to be sent at the beginning of each year, to the European Parliament and the Council.
Here is Article 173 TEC, as published in the latest consolidated version of the treaties, OJEU 29.12.2006 C 321 E/123:
Article 173 TEC
At the beginning of each year the Commission shall send a report to the European Parliament and to the Council. The report shall include information on research and technological development activities and the dissemination of results during the previous year, and the work programme for the current year.
***
Original Lisbon Treaty (ToL)
Article 2, point 142 inserted a new Article 172a and point 143 amended Article 174 (OJEU 17.12.2007 C 306/86–87).
No specific amendment concerned Article 173 TEC.
***
Renumbering the Treaty of Lisbon (ToL)
(As we have noted earlier, the Table of equivalences of the original Treaty of Lisbon tells us that Title XVIII first became Title XVIII with the addition of space in the TFEU (ToL), and later renumbered Title XIX Research and technological development and space in the consolidated version.)
Article 173 TEC first became Article 173 TFEU (ToL), but was then renumbered Article 190 TFEU in the consolidated version of the Lisbon Treaty (OJEU 17.12.2007 C 306/217–218).
***
Lisbon Treaty consolidated
Article 190 TFEU
The Article was renumbered, but apart from that it is one of the fairly rare instance of a provision where not a single word is changed. Article 190 TFEU appears like this in the consolidated version of the Treaty of Lisbon (OJEU 9.5.2008 C 115/132):
(TITLE XIX
RESEARCH AND TECHNOLOGICAL DEVELOPMENT AND SPACE)
Article 190
(ex Article 173 TEC)
At the beginning of each year the Commission shall send a report to the European Parliament and to the Council. The report shall include information on research and technological development activities and the dissemination of results during the previous year, and the work programme for the current year.
***
Annual report
The beginning of the year must be given a liberal interpretation and, perhaps, be seen as unrealistic with regard to gathering and processing the data necessary for a meaningful retrospective report. Anyway, the latest annual RTD report based on Article 173 TEC was published 18 August 2008.
The latest Report from the Commission Annual Report on research and technological development activities of the European Union in 2007 (Brussels, 18.8.2008 COM(2008) 519 final), is available here:
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2008:0519:FIN:EN:PDF
The eleven pages of Annual Report are a useful summary of policy initiatives concerning the European Research Area (ERA) and the first year of implementation of the Seventh Framework Programme for Research and Technological Development (FP7) as well as key findings on funding etc.
The Annual RTD Report was accompanied by a Staff Working Document:
Commission Staff Working Document Accompanying the Report from the Commission Annual Report on research and technological development activities of the European Union in 2007 (Brussels, 18.8.2008 SEC(2008) 2380 final). The 121 pages present a more detailed picture of individual research programmes and activities:
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=SEC:2008:2380:FIN:EN:PDF
In the European Parliament the Industry, Research and Energy Committee is responsible for the evaluation. The Council reference to the documents is number 12554/08. No indications of follow-up have been indicated to date.
Ralf Grahn
Reports such as this can sound boring, but to students and other interested persons they are valuable resources. These reports offer both quick overviews and distilled knowledge about the policy area in question.
So, if research, technological development, innovation, the FP7 or the like is up your alley, read on.
***
Article 173 TEC
Article 173 (ex Article 130p) of the current Treaty establishing the European Community (TEC) contains an obligation for the Commission to report on research and technological development (RTD) activities and dissemination of results during the previous year. The report shall include the work programme for the current year.
This report is supposed to be sent at the beginning of each year, to the European Parliament and the Council.
Here is Article 173 TEC, as published in the latest consolidated version of the treaties, OJEU 29.12.2006 C 321 E/123:
Article 173 TEC
At the beginning of each year the Commission shall send a report to the European Parliament and to the Council. The report shall include information on research and technological development activities and the dissemination of results during the previous year, and the work programme for the current year.
***
Original Lisbon Treaty (ToL)
Article 2, point 142 inserted a new Article 172a and point 143 amended Article 174 (OJEU 17.12.2007 C 306/86–87).
No specific amendment concerned Article 173 TEC.
***
Renumbering the Treaty of Lisbon (ToL)
(As we have noted earlier, the Table of equivalences of the original Treaty of Lisbon tells us that Title XVIII first became Title XVIII with the addition of space in the TFEU (ToL), and later renumbered Title XIX Research and technological development and space in the consolidated version.)
Article 173 TEC first became Article 173 TFEU (ToL), but was then renumbered Article 190 TFEU in the consolidated version of the Lisbon Treaty (OJEU 17.12.2007 C 306/217–218).
***
Lisbon Treaty consolidated
Article 190 TFEU
The Article was renumbered, but apart from that it is one of the fairly rare instance of a provision where not a single word is changed. Article 190 TFEU appears like this in the consolidated version of the Treaty of Lisbon (OJEU 9.5.2008 C 115/132):
(TITLE XIX
RESEARCH AND TECHNOLOGICAL DEVELOPMENT AND SPACE)
Article 190
(ex Article 173 TEC)
At the beginning of each year the Commission shall send a report to the European Parliament and to the Council. The report shall include information on research and technological development activities and the dissemination of results during the previous year, and the work programme for the current year.
***
Annual report
The beginning of the year must be given a liberal interpretation and, perhaps, be seen as unrealistic with regard to gathering and processing the data necessary for a meaningful retrospective report. Anyway, the latest annual RTD report based on Article 173 TEC was published 18 August 2008.
The latest Report from the Commission Annual Report on research and technological development activities of the European Union in 2007 (Brussels, 18.8.2008 COM(2008) 519 final), is available here:
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2008:0519:FIN:EN:PDF
The eleven pages of Annual Report are a useful summary of policy initiatives concerning the European Research Area (ERA) and the first year of implementation of the Seventh Framework Programme for Research and Technological Development (FP7) as well as key findings on funding etc.
The Annual RTD Report was accompanied by a Staff Working Document:
Commission Staff Working Document Accompanying the Report from the Commission Annual Report on research and technological development activities of the European Union in 2007 (Brussels, 18.8.2008 SEC(2008) 2380 final). The 121 pages present a more detailed picture of individual research programmes and activities:
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=SEC:2008:2380:FIN:EN:PDF
In the European Parliament the Industry, Research and Energy Committee is responsible for the evaluation. The Council reference to the documents is number 12554/08. No indications of follow-up have been indicated to date.
Ralf Grahn
EU Procurement Directive: Telecommunications sector excluded
Contracts concerning public telecommunications networks and services are excluded from the scope of the European Community (European Union) Procurement Directive 2004/18/EC:
Article 13
Specific exclusions in the field of telecommunications
This Directive shall not apply to public contracts for the principal purpose of permitting the contracting authorities to provide or exploit public telecommunications networks or to provide to the public one or more telecommunications services.
***
Telecommunications sector
Liberalisation of the telecommunications sector gradually led to more effective competition. Recital 21 of the Procurement Directive tries to explain some of the reasons:
(21) In view of the situation of effective market competition in the telecommunications sector following the implementation of the Community rules aimed at liberalising that sector, public contracts in that area should be excluded from the scope of this Directive insofar as they are intended primarily to allow the contracting authorities to exercise certain activities in the telecommunications sector. Those activities are defined in accordance with the definitions used in Articles 1, 2 and 8 of Council Directive 93/38/EEC of 14 June 1993 coordinating the procurement procedures of entities operating in the water, energy, transport and telecommunications sector, such that this Directive does not apply to contracts which have been excluded from the scope of Directive 93/38/EEC pursuant to Article 8 thereof.
***
Definitions
The definitions relating to telecommunications are found in Article 1(15) of the Procurement Directive:
15. For the purposes of Article 13, Article 57(a) and Article 68(b), the following phrases shall have the following meanings:
(a) ‘public telecommunications network’ means the public telecommunications infrastructure which enables signals to be conveyed between defined network termination points by wire, by microwave, by optical means or by other electromagnetic means;
(b) a ‘network termination point’ means all physical connections and their technical access specifications which form part of the public telecommunications network and are necessary for access to, and efficient communication through, that public network;
(c) ‘public telecommunications services’ means telecommunications services the provision of which the Member States have specifically assigned, in particular, to one or more telecommunications entities;
(d) ‘telecommunications services’ means services the provision of which consists wholly or partly in the transmission and routing of signals on the public telecommunications network by means of telecommunications processes, with the exception of broadcasting and television.
***
Utilities Directive: Telecommunications competition
Article 13 of the Procurement Directive excluding public telecommunications sector from the scope prevented these contracts from falling within the scope of the general procurement rules, when they were excluded from the new Utilities Directive 2004/17/EC.
The old Utilities Directive 98/38/EC included contracting entities operating in the telecommunications sector, but market liberalisation had already started to erode their privileged position. The new Utilities Directive was built on the premise that effective competition existed in the telecommunications sector, both de jure and de facto, dropping telecommunications from the name and from the scope of the new Utilities Directive 2004/17/EC, as explained in Recital 5 of this Directive:
(5) The scope of Directive 98/38/EEC covers, at present, certain contracts awarded by contracting entities operating in the telecommunications sector. A legislative framework, as mentioned in the Fourth report on the implementation of the telecommunications regulations of 25 November 1998, has been adopted to open this sector. One of its consequences has been the introduction of effective competition, both de jure and de facto, in this sector. For information purposes, and in the light of this situation, the Commission has published a list of telecommunications services which may already be excluded from the scope of that Directive by virtue of Article 8 thereof. Further progress has been confirmed in the Seventh report on the implementation of telecommunications regulations of 26 November 2001. It is therefore no longer necessary to regulate purchases by entities operating in this sector.
***
Continued monitoring of telecommunications
Recital 7 of the Utilities Directive 2004/17/EC added the proviso that the Commission will continue monitoring internal market developments in the telecommunications sector:
(7) Nevertheless, it is appropriate to continue to monitor developments in the telecommunications sector and to reconsider the situation if it is established that there is no longer effective competition in that sector.
***
Purchase of telecommunications services
Following the introduction of more effective competition in the telecommunications sector, governments and other public bodies can profit from competitive buying of telecommunications services, as explained by Recital 8 of the new Utilities Directive:
(8) Directive 93/38/EEC excludes from its scope purchases of voice telephony, telex, mobile telephone, paging and satellite services. Those exclusions were introduced to take account of the fact that the services in question could frequently be provided only by one service provider in a given geographical area because of the absence of effective competition and the existence of special or exclusive rights. The introduction of effective competition in the telecommunications sector removes the justification for these exclusions. It is therefore necessary to include the procurement of such telecommunications services in the scope of this Directive.
***
Scope of telecommunications services
Cf. Article 31 of the Utilities Directive and Category 5 Telecommunications services in Annex XVII A (replaced by Annex VI in OJEU 15.3.2008 L 74/373) with CPV references from 64200000-8 to 64228200-2, 72318000-7, and from 72700000-7 to 72720000-3.
Ralf Grahn
Article 13
Specific exclusions in the field of telecommunications
This Directive shall not apply to public contracts for the principal purpose of permitting the contracting authorities to provide or exploit public telecommunications networks or to provide to the public one or more telecommunications services.
***
Telecommunications sector
Liberalisation of the telecommunications sector gradually led to more effective competition. Recital 21 of the Procurement Directive tries to explain some of the reasons:
(21) In view of the situation of effective market competition in the telecommunications sector following the implementation of the Community rules aimed at liberalising that sector, public contracts in that area should be excluded from the scope of this Directive insofar as they are intended primarily to allow the contracting authorities to exercise certain activities in the telecommunications sector. Those activities are defined in accordance with the definitions used in Articles 1, 2 and 8 of Council Directive 93/38/EEC of 14 June 1993 coordinating the procurement procedures of entities operating in the water, energy, transport and telecommunications sector, such that this Directive does not apply to contracts which have been excluded from the scope of Directive 93/38/EEC pursuant to Article 8 thereof.
***
Definitions
The definitions relating to telecommunications are found in Article 1(15) of the Procurement Directive:
15. For the purposes of Article 13, Article 57(a) and Article 68(b), the following phrases shall have the following meanings:
(a) ‘public telecommunications network’ means the public telecommunications infrastructure which enables signals to be conveyed between defined network termination points by wire, by microwave, by optical means or by other electromagnetic means;
(b) a ‘network termination point’ means all physical connections and their technical access specifications which form part of the public telecommunications network and are necessary for access to, and efficient communication through, that public network;
(c) ‘public telecommunications services’ means telecommunications services the provision of which the Member States have specifically assigned, in particular, to one or more telecommunications entities;
(d) ‘telecommunications services’ means services the provision of which consists wholly or partly in the transmission and routing of signals on the public telecommunications network by means of telecommunications processes, with the exception of broadcasting and television.
***
Utilities Directive: Telecommunications competition
Article 13 of the Procurement Directive excluding public telecommunications sector from the scope prevented these contracts from falling within the scope of the general procurement rules, when they were excluded from the new Utilities Directive 2004/17/EC.
The old Utilities Directive 98/38/EC included contracting entities operating in the telecommunications sector, but market liberalisation had already started to erode their privileged position. The new Utilities Directive was built on the premise that effective competition existed in the telecommunications sector, both de jure and de facto, dropping telecommunications from the name and from the scope of the new Utilities Directive 2004/17/EC, as explained in Recital 5 of this Directive:
(5) The scope of Directive 98/38/EEC covers, at present, certain contracts awarded by contracting entities operating in the telecommunications sector. A legislative framework, as mentioned in the Fourth report on the implementation of the telecommunications regulations of 25 November 1998, has been adopted to open this sector. One of its consequences has been the introduction of effective competition, both de jure and de facto, in this sector. For information purposes, and in the light of this situation, the Commission has published a list of telecommunications services which may already be excluded from the scope of that Directive by virtue of Article 8 thereof. Further progress has been confirmed in the Seventh report on the implementation of telecommunications regulations of 26 November 2001. It is therefore no longer necessary to regulate purchases by entities operating in this sector.
***
Continued monitoring of telecommunications
Recital 7 of the Utilities Directive 2004/17/EC added the proviso that the Commission will continue monitoring internal market developments in the telecommunications sector:
(7) Nevertheless, it is appropriate to continue to monitor developments in the telecommunications sector and to reconsider the situation if it is established that there is no longer effective competition in that sector.
***
Purchase of telecommunications services
Following the introduction of more effective competition in the telecommunications sector, governments and other public bodies can profit from competitive buying of telecommunications services, as explained by Recital 8 of the new Utilities Directive:
(8) Directive 93/38/EEC excludes from its scope purchases of voice telephony, telex, mobile telephone, paging and satellite services. Those exclusions were introduced to take account of the fact that the services in question could frequently be provided only by one service provider in a given geographical area because of the absence of effective competition and the existence of special or exclusive rights. The introduction of effective competition in the telecommunications sector removes the justification for these exclusions. It is therefore necessary to include the procurement of such telecommunications services in the scope of this Directive.
***
Scope of telecommunications services
Cf. Article 31 of the Utilities Directive and Category 5 Telecommunications services in Annex XVII A (replaced by Annex VI in OJEU 15.3.2008 L 74/373) with CPV references from 64200000-8 to 64228200-2, 72318000-7, and from 72700000-7 to 72720000-3.
Ralf Grahn
Sunday, 11 January 2009
EU Law: European space policy
Earlier we noted that the Lisbon Treaty added ’space’ to the Title on research and technological development. Now we turn to the new provision on European space policy.
***
TEC
The current Treaty establishing the European Community (TEC) has no separate Article on space policy, which is included in the research and technological development policy. Cf. the latest consolidated version of the treaties, OJEU 29.12.2006 C 321 E.
***
European Convention
The European Convention proposed a new provision on space policy in Article III-155 of the draft Treaty establishing a Constitution for Europe (OJEU 18.7.2003 C 169/57):
Article III-155 Draft Constitution
1. To promote scientific and technical progress, industrial competitiveness and the implementation of its policies, the Union shall draw up a European space policy. To this end, it may promote joint initiatives, support research and technological development and coordinate the efforts needed for the exploration and exploitation of space.
2. To contribute to attaining the objectives referred to in paragraph 1, European laws or framework laws shall establish the necessary measures, which may take the form of a European space programme.
***
Constitutional Treaty
The intergovernmental conference took over the Convention’s proposal and added a third paragraph on the relations with the European Space Agency (ESA), OJEU 16.12.2004 C 310:
Article III-254 Constitution
1. To promote scientific and technical progress, industrial competitiveness and the implementation of its policies, the Union shall draw up a European space policy. To this end, it may promote joint initiatives, support research and technological development and coordinate the efforts needed for the exploration and exploitation of space.
2. To contribute to attaining the objectives referred to in paragraph 1, European laws or framework laws shall establish the necessary measures, which may take the form of a European space programme.
3. The Union shall establish any appropriate relations with the European Space Agency.
***
Original Lisbon Treaty (ToL)
Article 2, point 142 inserted a new Article 172a (OJEU 17.12.2007 C 306/86).
SPACE
142) The following new Article 172a shall be inserted:
‘Article 172a
1. To promote scientific and technical progress, industrial competitiveness and the implementation of its policies, the Union shall draw up a European space policy. To this end, it may promote joint initiatives, support research and technological development and coordinate the efforts needed for the exploration and exploitation of space.
2. To contribute to attaining the objectives referred to in paragraph 1, the European Parliament and the Council, acting in accordance with the ordinary legislative procedure, shall establish the necessary measures, which may take the form of a European space programme, excluding any harmonisation of the laws and regulations of the Member States.
3. The Union shall establish any appropriate relations with the European Space Agency.
4. This Article shall be without prejudice to the other provisions of this Title.’.
***
Differences
In comparison with the Constitutional Treaty, the Treaty of Lisbon made the following changes:
Paragraph 2 added mentions on the ordinary legislative procedure and the exclusion of harmonisation of the member states’ laws and regulations.
Paragraph 4 was an addition.
***
Renumbering the Treaty of Lisbon (ToL)
As we have noted earlier, the Table of equivalences of the original Treaty of Lisbon tells us that Title XVIII first became Title XVIII with the addition of space in the TFEU (ToL), and later renumbered Title XIX Research and technological development and space in the consolidated version.
The new Article 172a or Article 172bis TFEU (ToL) was renumbered Article 189 TFEU in the consolidated version of the Lisbon Treaty (OJEU 17.12.2007 C 306/217–218).
***
Lisbon Treaty consolidated
Article 189 TFEU
The new Article was renumbered. Article 189 TFEU appears like this in the consolidated version of the Treaty of Lisbon (OJEU 9.5.2008 C 115/131–132):
(TITLE XIX
RESEARCH AND TECHNOLOGICAL DEVELOPMENT AND SPACE)
Article 189 TFEU
1. To promote scientific and technical progress, industrial competitiveness and the implementation of its policies, the Union shall draw up a European space policy. To this end, it may promote joint initiatives, support research and technological development and coordinate the efforts needed for the exploration and exploitation of space.
2. To contribute to attaining the objectives referred to in paragraph 1, the European Parliament and the Council, acting in accordance with the ordinary legislative procedure, shall establish the necessary measures, which may take the form of a European space programme, excluding any harmonisation of the laws and regulations of the Member States.
3. The Union shall establish any appropriate relations with the European Space Agency.
4. This Article shall be without prejudice to the other provisions of this Title.
***
Summary of legislation
The Commission’s Scadplus page with a summary European space policy (last update 17 July 2006) is available here:
http://europa.eu/scadplus/leg/en/lvb/i23020.htm
A European space policy is a more or less similar web page, with differences mainly in details, but it includes a link to the Resolution on the European space policy of 22 May 2007 (web page last updated 25 May 2007):
http://europa.eu/scadplus/leg/en/lvb/l33242.htm
***
Commission space activities
News, activities and background on European space policy can be accessed through the Commission’s DG Enterprise and Industry web pages European Space Policy:
http://ec.europa.eu/enterprise/space/index_en.html
There are links to information about GMES, Galileo, Sapce Research and Development (FP7), the European Space Agency ESA, Key documents, News. Events, Publications etc.
***
Council resolution
To know how far the member states are on board (the spacecraft), you can look at the latest Council Resolution.
The 5th Space Council or more ordinarily the Competitiveness Council Resolution ‘Taking forward the European Space Policy’ from 25 to 26 September 2008 (Council document 13569/08), is available here:
http://register.consilium.europa.eu/pdf/en/08/st13/st13569.en08.pdf
***
European Space Agency
European space policy would be unthinkable without the European Space Agency. ESA has a portal with information about many aspects of its work:
http://www.esa.int/esaCP/index.html
For the legally minded: The Convention for the establishment of a European Space Agency, signed 30 May 1975, entered into force on 30 October 1980. The ESA Convention is available here:
http://www.esa.int/esapub/sp/sp1300/sp1300EN1.pdf
Ralf Grahn
***
TEC
The current Treaty establishing the European Community (TEC) has no separate Article on space policy, which is included in the research and technological development policy. Cf. the latest consolidated version of the treaties, OJEU 29.12.2006 C 321 E.
***
European Convention
The European Convention proposed a new provision on space policy in Article III-155 of the draft Treaty establishing a Constitution for Europe (OJEU 18.7.2003 C 169/57):
Article III-155 Draft Constitution
1. To promote scientific and technical progress, industrial competitiveness and the implementation of its policies, the Union shall draw up a European space policy. To this end, it may promote joint initiatives, support research and technological development and coordinate the efforts needed for the exploration and exploitation of space.
2. To contribute to attaining the objectives referred to in paragraph 1, European laws or framework laws shall establish the necessary measures, which may take the form of a European space programme.
***
Constitutional Treaty
The intergovernmental conference took over the Convention’s proposal and added a third paragraph on the relations with the European Space Agency (ESA), OJEU 16.12.2004 C 310:
Article III-254 Constitution
1. To promote scientific and technical progress, industrial competitiveness and the implementation of its policies, the Union shall draw up a European space policy. To this end, it may promote joint initiatives, support research and technological development and coordinate the efforts needed for the exploration and exploitation of space.
2. To contribute to attaining the objectives referred to in paragraph 1, European laws or framework laws shall establish the necessary measures, which may take the form of a European space programme.
3. The Union shall establish any appropriate relations with the European Space Agency.
***
Original Lisbon Treaty (ToL)
Article 2, point 142 inserted a new Article 172a (OJEU 17.12.2007 C 306/86).
SPACE
142) The following new Article 172a shall be inserted:
‘Article 172a
1. To promote scientific and technical progress, industrial competitiveness and the implementation of its policies, the Union shall draw up a European space policy. To this end, it may promote joint initiatives, support research and technological development and coordinate the efforts needed for the exploration and exploitation of space.
2. To contribute to attaining the objectives referred to in paragraph 1, the European Parliament and the Council, acting in accordance with the ordinary legislative procedure, shall establish the necessary measures, which may take the form of a European space programme, excluding any harmonisation of the laws and regulations of the Member States.
3. The Union shall establish any appropriate relations with the European Space Agency.
4. This Article shall be without prejudice to the other provisions of this Title.’.
***
Differences
In comparison with the Constitutional Treaty, the Treaty of Lisbon made the following changes:
Paragraph 2 added mentions on the ordinary legislative procedure and the exclusion of harmonisation of the member states’ laws and regulations.
Paragraph 4 was an addition.
***
Renumbering the Treaty of Lisbon (ToL)
As we have noted earlier, the Table of equivalences of the original Treaty of Lisbon tells us that Title XVIII first became Title XVIII with the addition of space in the TFEU (ToL), and later renumbered Title XIX Research and technological development and space in the consolidated version.
The new Article 172a or Article 172bis TFEU (ToL) was renumbered Article 189 TFEU in the consolidated version of the Lisbon Treaty (OJEU 17.12.2007 C 306/217–218).
***
Lisbon Treaty consolidated
Article 189 TFEU
The new Article was renumbered. Article 189 TFEU appears like this in the consolidated version of the Treaty of Lisbon (OJEU 9.5.2008 C 115/131–132):
(TITLE XIX
RESEARCH AND TECHNOLOGICAL DEVELOPMENT AND SPACE)
Article 189 TFEU
1. To promote scientific and technical progress, industrial competitiveness and the implementation of its policies, the Union shall draw up a European space policy. To this end, it may promote joint initiatives, support research and technological development and coordinate the efforts needed for the exploration and exploitation of space.
2. To contribute to attaining the objectives referred to in paragraph 1, the European Parliament and the Council, acting in accordance with the ordinary legislative procedure, shall establish the necessary measures, which may take the form of a European space programme, excluding any harmonisation of the laws and regulations of the Member States.
3. The Union shall establish any appropriate relations with the European Space Agency.
4. This Article shall be without prejudice to the other provisions of this Title.
***
Summary of legislation
The Commission’s Scadplus page with a summary European space policy (last update 17 July 2006) is available here:
http://europa.eu/scadplus/leg/en/lvb/i23020.htm
A European space policy is a more or less similar web page, with differences mainly in details, but it includes a link to the Resolution on the European space policy of 22 May 2007 (web page last updated 25 May 2007):
http://europa.eu/scadplus/leg/en/lvb/l33242.htm
***
Commission space activities
News, activities and background on European space policy can be accessed through the Commission’s DG Enterprise and Industry web pages European Space Policy:
http://ec.europa.eu/enterprise/space/index_en.html
There are links to information about GMES, Galileo, Sapce Research and Development (FP7), the European Space Agency ESA, Key documents, News. Events, Publications etc.
***
Council resolution
To know how far the member states are on board (the spacecraft), you can look at the latest Council Resolution.
The 5th Space Council or more ordinarily the Competitiveness Council Resolution ‘Taking forward the European Space Policy’ from 25 to 26 September 2008 (Council document 13569/08), is available here:
http://register.consilium.europa.eu/pdf/en/08/st13/st13569.en08.pdf
***
European Space Agency
European space policy would be unthinkable without the European Space Agency. ESA has a portal with information about many aspects of its work:
http://www.esa.int/esaCP/index.html
For the legally minded: The Convention for the establishment of a European Space Agency, signed 30 May 1975, entered into force on 30 October 1980. The ESA Convention is available here:
http://www.esa.int/esapub/sp/sp1300/sp1300EN1.pdf
Ralf Grahn
EU procurement: Contracts excluded from both Directives
Public procurement is an important area of internal market law, but some contracts are excluded from the Directives on procurement. We continue our presentation of the relevant provisions to public officials and interested businesses.
The general European Community (European Union) Procurement Directive 2004/18/EC, also known as the Classic Directive, does not apply to public contracts in the special sectors covered by the Utilities Directive 2004/17/EC.
But when a contract in the special sectors is excluded from the Utilities Directive on certain grounds, it would fall within the default Procurement Directive if not specifically excluded from reverting.
We look at these cases of double exclusion.
***
Article 12 Procurement Directive
Article 12 of the Procurement Directive 2004/18/EC excludes the sectors to which the so called Utilities Directive 2004/17/EC applies as ‘lex specialis’: water, energy, transport and postal services.
In this blawg post we follow the thread of non-application ‘to public contracts excluded from the scope of that Directive under Article 5(2) and Articles 19, 26 and 30 thereof’:
S e c t i o n 3
Excluded contracts
Article 12
Contracts in the water, energy, transport and postal services sectors
This Directive shall not apply to public contracts which, under Directive 2004/17/EC, are awarded by contracting authorities exercising one or more of the activities referred to in Articles 3 to 7 of that Directive and are awarded for the pursuit of those activities, or to public contracts excluded from the scope of that Directive under Article 5(2) and Articles 19, 26 and 30 thereof.
[However, this Directive shall continue to apply to public contracts awarded by contracting authorities carrying out one or more of the activities referred to in Article 6 of Directive 2004/17/EC and awarded for those activities, insofar as the Member State concerned takes advantage of the option referred to in the second subparagraph of Article 71 thereof to defer its application.]
(Although not relevant for today’s blog post, the second paragraph is obsolete since 1 January 2009.)
***
Exclusion of utilities explained
First, a few words on the general scheme of things. Recital 20 of the Procurement Directive refers to Directive 2004/17/EC, the so called Utilities Directive, and explains the exclusion of specific sectors from the Procurement Directive:
(20) Public contracts which are awarded by the contracting authorities operating in the water, energy, transport and postal services sectors and which fall within the scope of those activities are covered by Directive 2004/17/EC of the European Parliament and of the Council of 31 March 2004 coordinating the procurement procedures of entities operating in the water, energy, transport and postal services sectors. However, contracts awarded by the contracting authorities in the context of their service activities for maritime, coastal or river transport must fall within the scope of this Directive.
***
Double exclusion
The headline ‘water, energy, transport and postal services sectors’ gives us a rough indication of the activities, which fall under the Utilities Directive 2004/17/EC, but the scope of the Utilities Directive needs to be defined in order to determine when this Directive takes precedence.
The Utilities Directive is applied to public contracts awarded by contracting authorities exercising one or more of the activities referred to in Articles 3 to 7 of that Directive and awarded for the pursuit of those activities.
In earlier blog posts we have looked at Articles 3 to 7 of the Utilities Directive, which applies to the following activities:
Article 3 Gas, heat and electricity
Article 4 Water
Article 5 Transport services
Article 6 Postal services
Article 7 Exploration for, or extraction of, oil, gas, coal or other solid fuels, as well as ports and airports
The special exclusions from the scope of the Utilities Directive under Article 5(2) and Articles 19, 26 and 30 thereof do not lead to the application of the fall-back Procurement Directive.
Next, we look at the instances excluded from both Directives.
***
Bus transport services excluded
Article 5(2) Utilities Directive
2. This Directive shall not apply to entities providing bus transport services to the public which were excluded from the scope of Directive 93/38/EEC pursuant to Article 2(4) thereof.
***
Old Utilities Directive: Excluded bus transport services
Article 2(4) of the old Utilities Directive 93/38/EEC excluded the following bus transport services where effective competition existed. This exclusion still applies:
4. The provision of bus transport services to the public shall not be considered to be a relevant activity within the meaning of paragraph 2(c) where other entities are free to provide those services, either in general or in a particular geographical area, under the same condition as the contracting entities.
***
Bus transport exclusion explained
Recital 19 of the current Utilities Directive explains the scope of excluded bus transport services:
(27) Certain entities providing bus transport services to the public were already excluded from the scope of Directive 93/38/EEC. Such entities should also be excluded from the scope of this Directive. In order to forestall the existence of a multitude of specific arrangements applying to certain sectors only, the general procedure that permits the effects of opening up to competition to be taken into account should also apply to all entities providing bus transport services that are not excluded from the scope of Directive 93/38/EEC pursuant to Article 2(4) thereof.
***
Resale or lease to third parties
Article 19 of the Utilities Directive excludes contracts awarded for purposes of resale or lease to third parties:
SUBSECTION 2
Exclusions applicable to all contracting entities and to all types of contract
Article 19 Utilities Directive
Contracts awarded for purposes of resale or lease to third parties
1. This Directive shall not apply to contracts awarded for purposes of resale or lease to third parties, provided that the contracting entity enjoys no special or exclusive right to sell or lease the subject of such contracts, and other entities are free to sell or lease it under the same conditions as the contracting entity.
2. The contracting entities shall notify the Commission at its request of all the categories of products or activities which they regard as excluded under paragraph 1. The Commission may periodically publish in the Official Journal of the European Union, for information purposes, lists of the categories of products and activities which it considers to be covered by this exclusion. In so doing, the Commission shall respect any sensitive commercial aspects that the contracting entities may point out when forwarding information.
***
Water and energy contracts
Pursuant to Article 26 of the Utilities Directive, certain contracting entities are excluded with regard to contracts for the purchase of water and for the supply of energy or of fuels for the production of energy:
SUBSECTION 4
Exclusions applicable to certain contracting entities only
Article 26 Utilities Directive
Contracts awarded by certain contracting entities for the purchase of water and for the supply of energy or of fuels for the production of energy
This Directive shall not apply:
(a) to contracts for the purchase of water if awarded by contracting entities engaged in one or both of the activities referred to in Article 4(1).
(b) to contracts for the supply of energy or of fuels for the production of energy, if awarded by contracting entities engaged in an activity referred to in Article 3(1), Article 3(3) or Article 7(a).
***
Competitive markets
Article 30(1) of the Utilities Directive establishes the principle to exclude contracts from the application of the Directive, if the activity is directly exposed to competition on markets to which access is not restricted.
The rest of Article 30 deals with the criteria and the procedures:
Article 30 Utilities Directive
Procedure for establishing whether a given activity is directly exposed to competition
1. Contracts intended to enable an activity mentioned in Articles 3 to 7 to be carried out shall not be subject to this Directive if, in the Member State in which it is performed, the activity is directly exposed to competition on markets to which access is not restricted.
2. For the purposes of paragraph 1, the question of whether an activity is directly exposed to competition shall be decided on the basis of criteria that are in conformity with the Treaty provisions on competition, such as the characteristics of the goods or services concerned, the existence of alternative goods or services, the prices and the actual or potential presence of more than one supplier of the goods or services in question.
3. For the purposes of paragraph 1, access to a market shall be deemed not to be restricted if the Member State has implemented and applied the provisions of Community legislation mentioned in Annex XI.
If free access to a given market cannot be presumed on the basis of the first subparagraph, it must be demonstrated that access to the market in question is free de facto and de jure.
4. When a Member State considers that, in compliance with paragraphs 2 and 3, paragraph 1 is applicable to a given activity, it shall notify the Commission and inform it of all relevant facts, and in particular of any law, regulation, administrative provision or agreement concerning compliance with the conditions set out in paragraph 1, where appropriate together with the position adopted by an independent national authority that is competent in relation to the activity concerned.
Contracts intended to enable the activity concerned to be carried out shall no longer be subject to this Directive if the Commission:
— has adopted a Decision establishing the applicability of paragraph 1 in accordance with paragraph 6 and within the period it provides for, or
— has not adopted a Decision concerning such applicability within that period.
However, where free access to a given market is presumed on the basis of the first subparagraph of paragraph 3, and where an independent national authority that is competent in the activity concerned has established the applicability of paragraph 1, contracts intended to enable the activity concerned to be carried out shall no longer be subject to this Directive if the Commission has not established the inapplicability of paragraph 1 by a Decision adopted in conformity with paragraph 6 and within the period it provides for.
5. When the legislation of the Member State concerned provides for it, the contracting entities may ask the Commission to establish the applicability of paragraph 1 to a given activity by a Decision in conformity with paragraph 6. In such a case, the Commission shall immediately inform the Member State concerned.
That Member State shall, taking account of paragraphs 2 and 3, inform the Commission of all relevant facts, and in particular of any law, regulation, administrative provision or agreement concerning compliance with the conditions set out in paragraph 1, where appropriate together with the position adopted by an independent national authority that is competent in the activity concerned.
The Commission may also begin the procedure for adoption of a Decision establishing the applicability of paragraph 1 to a given activity on its own initiative. In such a case, the Commission shall immediately inform the Member State concerned.
If, at the end of the period laid down in paragraph 6, the Commission has not adopted a Decision concerning the applicability of paragraph 1 to a given activity, paragraph 1 shall be deemed to be applicable.
6. For the adoption of a Decision under this Article, in accordance with the procedure under Article 68(2), the Commission shall be allowed a period of three months commencing on the first working day following the date on which it receives the notification or the request. However, this period may be extended once by a maximum of three months in duly justified cases, in particular if the information contained in the notification or the request or in the documents annexed thereto is incomplete or inexact or if the facts as reported undergo any substantive changes. This extension shall be limited to one month where an independent national authority that is competent in the activity concerned has established the applicability of paragraph 1 in the cases provided for under the third subparagraph of paragraph 4.
When an activity in a given Member State is already the subject of a procedure under this Article, further requests concerning the same activity in the same Member State before the expiry of the period opened in respect of the first request shall not be considered as new procedures and shall be treated in the context of the first request.
The Commission shall adopt detailed rules for applying paragraphs 4, 5 and 6 in accordance with the procedure under Article 68(2).
These rules shall include at least:
(a) the publication in the Official Journal, for information, of the date on which the three-month period referred to in the first subparagraph begins, and, in case this period is prolonged, the date of prolongation and the period by which it is prolonged;
(b) publication of the possible applicability of paragraph 1 in accordance with the second or third subparagraph of paragraph 4 or in accordance with the fourth subparagraph of paragraph 5; and
(c) the arrangements for forwarding positions adopted by an independent authority that is competent in the activity concerned, regarding questions relevant to paragraphs 1 and 2.
***
Exposure to competition explained
Direct exposure to competition is explained by Recitals 40 and 41 of the Utilities Directive:
(40) This Directive should apply neither to contracts intended to permit the performance of an activity referred to in Articles 3 to 7 nor to design contests organised for the pursuit of such an activity if, in the Member State in which this activity is carried out, it is directly exposed to competition on markets to which access is not limited. It is therefore appropriate to introduce a procedure, applicable to all sectors covered by this Directive, that will enable the effects of current or future opening up to competition to be taken into account. Such a procedure should provide legal certainty for the entities concerned, as well as an appropriate decision-making process, ensuring, within short time limits, uniform application of Community law in this area.
(41) Direct exposure to competition should be assessed on the basis of objective criteria, taking account of the specific characteristics of the sector concerned. The implementation and application of appropriate Community legislation opening a given sector, or a part of it, will be considered to provide sufficient grounds for assuming there is free access to the market in question. Such appropriate legislation should be identified in an annex which can be updated by the Commission. When updating, the Commission takes in particular into account the possible adoption of measures entailing a genuine opening up to competition of sectors other than those for which a legislation is already mentioned in Annex XI, such as that of railway transports. Where free access to a given market does not result from the implementation of appropriate Community legislation, it should be demonstrated that, de jure and de facto, such access is free. For this purpose, application by a Member State of a Directive, such as Directive 94/22/EC opening up a given sector to competition, to another sector, such as the coal sector, is a circumstance to be taken into account for the purposes of Article 30.
***
Annex XI Community legislation
Access to a market shall be deemed not to be restricted if the Member State has implemented and applied the provisions of Community legislation mentioned in Annex XI.
Commission Decision 2008/963/EC of 9 December 2008 amending the Annexes to Directives 2004/17/EC and 2004/18/EC of the European Parliament and of the Council on public procurement procedures, as regards their lists of contracting entities and contracting authorities, published OJEU 24.12.2008 L 349/1, amended Annexes I to X of the Utilities Directive.
Annex XI was left untouched, so we should be safe in accessing this Annex from the latest consolidated version (15 September 2008) of the Utilities Directive. Here is the list of relevant internal market legislation (but look for possible amendments to the Directives mentioned):
ANNEX XI
LIST OF COMMUNITY LEGISLATION REFERRED TO IN ARTICLE 30(3)
A. TRANSPORT OR DISTRIBUTION OF GAS OR HEAT
Directive 98/30/EC of the European Parliament and of the Council of 22 June 1998 concerning common rules for the internal market in natural gas (1)
B. PRODUCTION, TRANSMISSION OR DISTRIBUTION OF ELECTRICITY
Directive 96/92/EC of the European Parliament and of the Council of 19 December 1996 concerning common rules for the internal market in electricity (2)
C. PRODUCTION, TRANSPORT OR DISTRIBUTION OF DRINKING WATER
—
D. CONTRACTING ENTITIES IN THE FIELD OF RAIL SERVICES
—
E. CONTRACTING ENTITIES IN THE FIELD OF URBAN RAILWAY, TRAMWAY, TROLLEYBUS OR MOTOR BUS SERVICES
—
F. CONTRACTING ENTITIES IN THE FIELD OF POSTAL SERVICES
Directive 97/67/EC of the European Parliament and of the Council of 15 December 1997 on common rules for the development of the internal market of Community postal services and the improvement of quality of service (3)
G. EXPLORATION FOR AND EXTRACTION OF OIL OR GAS
Directive 94/22/EC of the European Parliament and of the Council of 30 May 1994 on the conditions for granting and using authorisations for the prospection, exploration and production of hydrocarbons (4)
H. EXPLORATION FOR AND EXTRACTION OF COAL OR OTHER SOLID FUELS
—
I. CONTRACTING ENTITIES IN THE FIELD OF SEAPORT OR INLAND PORT OR OTHER TERMINAL EQUIPMENT
—
J. CONTRACTING ENTITIES IN THE FIELD OF AIRPORT INSTALLATIONS
—
-----
(1) OJ L 204, 21.7.1998, p. 1.
(2) OJ L 27, 30.1.1997, p. 20.
(3) OJ L 15, 21.1.1998, p. 14. Directive last amended by Directive 2002/39/EC (OJ L 176, 5.7.2002, p. 21).
(4) OJ L 164, 30.6.1994, p. 3.
(Check if the Directives have been amended.)
Ralf Grahn
The general European Community (European Union) Procurement Directive 2004/18/EC, also known as the Classic Directive, does not apply to public contracts in the special sectors covered by the Utilities Directive 2004/17/EC.
But when a contract in the special sectors is excluded from the Utilities Directive on certain grounds, it would fall within the default Procurement Directive if not specifically excluded from reverting.
We look at these cases of double exclusion.
***
Article 12 Procurement Directive
Article 12 of the Procurement Directive 2004/18/EC excludes the sectors to which the so called Utilities Directive 2004/17/EC applies as ‘lex specialis’: water, energy, transport and postal services.
In this blawg post we follow the thread of non-application ‘to public contracts excluded from the scope of that Directive under Article 5(2) and Articles 19, 26 and 30 thereof’:
S e c t i o n 3
Excluded contracts
Article 12
Contracts in the water, energy, transport and postal services sectors
This Directive shall not apply to public contracts which, under Directive 2004/17/EC, are awarded by contracting authorities exercising one or more of the activities referred to in Articles 3 to 7 of that Directive and are awarded for the pursuit of those activities, or to public contracts excluded from the scope of that Directive under Article 5(2) and Articles 19, 26 and 30 thereof.
[However, this Directive shall continue to apply to public contracts awarded by contracting authorities carrying out one or more of the activities referred to in Article 6 of Directive 2004/17/EC and awarded for those activities, insofar as the Member State concerned takes advantage of the option referred to in the second subparagraph of Article 71 thereof to defer its application.]
(Although not relevant for today’s blog post, the second paragraph is obsolete since 1 January 2009.)
***
Exclusion of utilities explained
First, a few words on the general scheme of things. Recital 20 of the Procurement Directive refers to Directive 2004/17/EC, the so called Utilities Directive, and explains the exclusion of specific sectors from the Procurement Directive:
(20) Public contracts which are awarded by the contracting authorities operating in the water, energy, transport and postal services sectors and which fall within the scope of those activities are covered by Directive 2004/17/EC of the European Parliament and of the Council of 31 March 2004 coordinating the procurement procedures of entities operating in the water, energy, transport and postal services sectors. However, contracts awarded by the contracting authorities in the context of their service activities for maritime, coastal or river transport must fall within the scope of this Directive.
***
Double exclusion
The headline ‘water, energy, transport and postal services sectors’ gives us a rough indication of the activities, which fall under the Utilities Directive 2004/17/EC, but the scope of the Utilities Directive needs to be defined in order to determine when this Directive takes precedence.
The Utilities Directive is applied to public contracts awarded by contracting authorities exercising one or more of the activities referred to in Articles 3 to 7 of that Directive and awarded for the pursuit of those activities.
In earlier blog posts we have looked at Articles 3 to 7 of the Utilities Directive, which applies to the following activities:
Article 3 Gas, heat and electricity
Article 4 Water
Article 5 Transport services
Article 6 Postal services
Article 7 Exploration for, or extraction of, oil, gas, coal or other solid fuels, as well as ports and airports
The special exclusions from the scope of the Utilities Directive under Article 5(2) and Articles 19, 26 and 30 thereof do not lead to the application of the fall-back Procurement Directive.
Next, we look at the instances excluded from both Directives.
***
Bus transport services excluded
Article 5(2) Utilities Directive
2. This Directive shall not apply to entities providing bus transport services to the public which were excluded from the scope of Directive 93/38/EEC pursuant to Article 2(4) thereof.
***
Old Utilities Directive: Excluded bus transport services
Article 2(4) of the old Utilities Directive 93/38/EEC excluded the following bus transport services where effective competition existed. This exclusion still applies:
4. The provision of bus transport services to the public shall not be considered to be a relevant activity within the meaning of paragraph 2(c) where other entities are free to provide those services, either in general or in a particular geographical area, under the same condition as the contracting entities.
***
Bus transport exclusion explained
Recital 19 of the current Utilities Directive explains the scope of excluded bus transport services:
(27) Certain entities providing bus transport services to the public were already excluded from the scope of Directive 93/38/EEC. Such entities should also be excluded from the scope of this Directive. In order to forestall the existence of a multitude of specific arrangements applying to certain sectors only, the general procedure that permits the effects of opening up to competition to be taken into account should also apply to all entities providing bus transport services that are not excluded from the scope of Directive 93/38/EEC pursuant to Article 2(4) thereof.
***
Resale or lease to third parties
Article 19 of the Utilities Directive excludes contracts awarded for purposes of resale or lease to third parties:
SUBSECTION 2
Exclusions applicable to all contracting entities and to all types of contract
Article 19 Utilities Directive
Contracts awarded for purposes of resale or lease to third parties
1. This Directive shall not apply to contracts awarded for purposes of resale or lease to third parties, provided that the contracting entity enjoys no special or exclusive right to sell or lease the subject of such contracts, and other entities are free to sell or lease it under the same conditions as the contracting entity.
2. The contracting entities shall notify the Commission at its request of all the categories of products or activities which they regard as excluded under paragraph 1. The Commission may periodically publish in the Official Journal of the European Union, for information purposes, lists of the categories of products and activities which it considers to be covered by this exclusion. In so doing, the Commission shall respect any sensitive commercial aspects that the contracting entities may point out when forwarding information.
***
Water and energy contracts
Pursuant to Article 26 of the Utilities Directive, certain contracting entities are excluded with regard to contracts for the purchase of water and for the supply of energy or of fuels for the production of energy:
SUBSECTION 4
Exclusions applicable to certain contracting entities only
Article 26 Utilities Directive
Contracts awarded by certain contracting entities for the purchase of water and for the supply of energy or of fuels for the production of energy
This Directive shall not apply:
(a) to contracts for the purchase of water if awarded by contracting entities engaged in one or both of the activities referred to in Article 4(1).
(b) to contracts for the supply of energy or of fuels for the production of energy, if awarded by contracting entities engaged in an activity referred to in Article 3(1), Article 3(3) or Article 7(a).
***
Competitive markets
Article 30(1) of the Utilities Directive establishes the principle to exclude contracts from the application of the Directive, if the activity is directly exposed to competition on markets to which access is not restricted.
The rest of Article 30 deals with the criteria and the procedures:
Article 30 Utilities Directive
Procedure for establishing whether a given activity is directly exposed to competition
1. Contracts intended to enable an activity mentioned in Articles 3 to 7 to be carried out shall not be subject to this Directive if, in the Member State in which it is performed, the activity is directly exposed to competition on markets to which access is not restricted.
2. For the purposes of paragraph 1, the question of whether an activity is directly exposed to competition shall be decided on the basis of criteria that are in conformity with the Treaty provisions on competition, such as the characteristics of the goods or services concerned, the existence of alternative goods or services, the prices and the actual or potential presence of more than one supplier of the goods or services in question.
3. For the purposes of paragraph 1, access to a market shall be deemed not to be restricted if the Member State has implemented and applied the provisions of Community legislation mentioned in Annex XI.
If free access to a given market cannot be presumed on the basis of the first subparagraph, it must be demonstrated that access to the market in question is free de facto and de jure.
4. When a Member State considers that, in compliance with paragraphs 2 and 3, paragraph 1 is applicable to a given activity, it shall notify the Commission and inform it of all relevant facts, and in particular of any law, regulation, administrative provision or agreement concerning compliance with the conditions set out in paragraph 1, where appropriate together with the position adopted by an independent national authority that is competent in relation to the activity concerned.
Contracts intended to enable the activity concerned to be carried out shall no longer be subject to this Directive if the Commission:
— has adopted a Decision establishing the applicability of paragraph 1 in accordance with paragraph 6 and within the period it provides for, or
— has not adopted a Decision concerning such applicability within that period.
However, where free access to a given market is presumed on the basis of the first subparagraph of paragraph 3, and where an independent national authority that is competent in the activity concerned has established the applicability of paragraph 1, contracts intended to enable the activity concerned to be carried out shall no longer be subject to this Directive if the Commission has not established the inapplicability of paragraph 1 by a Decision adopted in conformity with paragraph 6 and within the period it provides for.
5. When the legislation of the Member State concerned provides for it, the contracting entities may ask the Commission to establish the applicability of paragraph 1 to a given activity by a Decision in conformity with paragraph 6. In such a case, the Commission shall immediately inform the Member State concerned.
That Member State shall, taking account of paragraphs 2 and 3, inform the Commission of all relevant facts, and in particular of any law, regulation, administrative provision or agreement concerning compliance with the conditions set out in paragraph 1, where appropriate together with the position adopted by an independent national authority that is competent in the activity concerned.
The Commission may also begin the procedure for adoption of a Decision establishing the applicability of paragraph 1 to a given activity on its own initiative. In such a case, the Commission shall immediately inform the Member State concerned.
If, at the end of the period laid down in paragraph 6, the Commission has not adopted a Decision concerning the applicability of paragraph 1 to a given activity, paragraph 1 shall be deemed to be applicable.
6. For the adoption of a Decision under this Article, in accordance with the procedure under Article 68(2), the Commission shall be allowed a period of three months commencing on the first working day following the date on which it receives the notification or the request. However, this period may be extended once by a maximum of three months in duly justified cases, in particular if the information contained in the notification or the request or in the documents annexed thereto is incomplete or inexact or if the facts as reported undergo any substantive changes. This extension shall be limited to one month where an independent national authority that is competent in the activity concerned has established the applicability of paragraph 1 in the cases provided for under the third subparagraph of paragraph 4.
When an activity in a given Member State is already the subject of a procedure under this Article, further requests concerning the same activity in the same Member State before the expiry of the period opened in respect of the first request shall not be considered as new procedures and shall be treated in the context of the first request.
The Commission shall adopt detailed rules for applying paragraphs 4, 5 and 6 in accordance with the procedure under Article 68(2).
These rules shall include at least:
(a) the publication in the Official Journal, for information, of the date on which the three-month period referred to in the first subparagraph begins, and, in case this period is prolonged, the date of prolongation and the period by which it is prolonged;
(b) publication of the possible applicability of paragraph 1 in accordance with the second or third subparagraph of paragraph 4 or in accordance with the fourth subparagraph of paragraph 5; and
(c) the arrangements for forwarding positions adopted by an independent authority that is competent in the activity concerned, regarding questions relevant to paragraphs 1 and 2.
***
Exposure to competition explained
Direct exposure to competition is explained by Recitals 40 and 41 of the Utilities Directive:
(40) This Directive should apply neither to contracts intended to permit the performance of an activity referred to in Articles 3 to 7 nor to design contests organised for the pursuit of such an activity if, in the Member State in which this activity is carried out, it is directly exposed to competition on markets to which access is not limited. It is therefore appropriate to introduce a procedure, applicable to all sectors covered by this Directive, that will enable the effects of current or future opening up to competition to be taken into account. Such a procedure should provide legal certainty for the entities concerned, as well as an appropriate decision-making process, ensuring, within short time limits, uniform application of Community law in this area.
(41) Direct exposure to competition should be assessed on the basis of objective criteria, taking account of the specific characteristics of the sector concerned. The implementation and application of appropriate Community legislation opening a given sector, or a part of it, will be considered to provide sufficient grounds for assuming there is free access to the market in question. Such appropriate legislation should be identified in an annex which can be updated by the Commission. When updating, the Commission takes in particular into account the possible adoption of measures entailing a genuine opening up to competition of sectors other than those for which a legislation is already mentioned in Annex XI, such as that of railway transports. Where free access to a given market does not result from the implementation of appropriate Community legislation, it should be demonstrated that, de jure and de facto, such access is free. For this purpose, application by a Member State of a Directive, such as Directive 94/22/EC opening up a given sector to competition, to another sector, such as the coal sector, is a circumstance to be taken into account for the purposes of Article 30.
***
Annex XI Community legislation
Access to a market shall be deemed not to be restricted if the Member State has implemented and applied the provisions of Community legislation mentioned in Annex XI.
Commission Decision 2008/963/EC of 9 December 2008 amending the Annexes to Directives 2004/17/EC and 2004/18/EC of the European Parliament and of the Council on public procurement procedures, as regards their lists of contracting entities and contracting authorities, published OJEU 24.12.2008 L 349/1, amended Annexes I to X of the Utilities Directive.
Annex XI was left untouched, so we should be safe in accessing this Annex from the latest consolidated version (15 September 2008) of the Utilities Directive. Here is the list of relevant internal market legislation (but look for possible amendments to the Directives mentioned):
ANNEX XI
LIST OF COMMUNITY LEGISLATION REFERRED TO IN ARTICLE 30(3)
A. TRANSPORT OR DISTRIBUTION OF GAS OR HEAT
Directive 98/30/EC of the European Parliament and of the Council of 22 June 1998 concerning common rules for the internal market in natural gas (1)
B. PRODUCTION, TRANSMISSION OR DISTRIBUTION OF ELECTRICITY
Directive 96/92/EC of the European Parliament and of the Council of 19 December 1996 concerning common rules for the internal market in electricity (2)
C. PRODUCTION, TRANSPORT OR DISTRIBUTION OF DRINKING WATER
—
D. CONTRACTING ENTITIES IN THE FIELD OF RAIL SERVICES
—
E. CONTRACTING ENTITIES IN THE FIELD OF URBAN RAILWAY, TRAMWAY, TROLLEYBUS OR MOTOR BUS SERVICES
—
F. CONTRACTING ENTITIES IN THE FIELD OF POSTAL SERVICES
Directive 97/67/EC of the European Parliament and of the Council of 15 December 1997 on common rules for the development of the internal market of Community postal services and the improvement of quality of service (3)
G. EXPLORATION FOR AND EXTRACTION OF OIL OR GAS
Directive 94/22/EC of the European Parliament and of the Council of 30 May 1994 on the conditions for granting and using authorisations for the prospection, exploration and production of hydrocarbons (4)
H. EXPLORATION FOR AND EXTRACTION OF COAL OR OTHER SOLID FUELS
—
I. CONTRACTING ENTITIES IN THE FIELD OF SEAPORT OR INLAND PORT OR OTHER TERMINAL EQUIPMENT
—
J. CONTRACTING ENTITIES IN THE FIELD OF AIRPORT INSTALLATIONS
—
-----
(1) OJ L 204, 21.7.1998, p. 1.
(2) OJ L 27, 30.1.1997, p. 20.
(3) OJ L 15, 21.1.1998, p. 14. Directive last amended by Directive 2002/39/EC (OJ L 176, 5.7.2002, p. 21).
(4) OJ L 164, 30.6.1994, p. 3.
(Check if the Directives have been amended.)
Ralf Grahn
EU Law in Russian
Political and economic relations between Russia and the European Union are a permanent fixture, with challenges and opportunities. Russia and the EU have common borders and neighbours, where Russian is spoken or known as a second language. Even within the European Union there are sizable Russian minorities, but Russian is not among the official languages of the EU.
In other words, there is potentially a huge “market” for factual and updated information about the European Union in Russian. There is now a new web site “EU Law” in Russian beginning to offer materials and articles in translation.
Students, businesses, politicians and citizens in Russia, the EU and in partner countries can find information here:
http://new.eulaw.ru
I wish the new “EU Law” site in Russian success in bridging the information gap.
Ralf Grahn
In other words, there is potentially a huge “market” for factual and updated information about the European Union in Russian. There is now a new web site “EU Law” in Russian beginning to offer materials and articles in translation.
Students, businesses, politicians and citizens in Russia, the EU and in partner countries can find information here:
http://new.eulaw.ru
I wish the new “EU Law” site in Russian success in bridging the information gap.
Ralf Grahn
Saturday, 10 January 2009
EU Law: Legislating research
In this post we look at European Community (European Union) procedures to adopt the acts for European research and technological development.
We recapitulate legal acts in force and point to proposals aiming at developing research infrastructures by new means.
***
Article 172 TEC
Article 172 (ex Article 130o) of the Treaty establishing the European Community (TEC) sets out the procedures for some of the acts concerning research and technological development.
Paragraph 1 refers to the joint undertakings (Joint Technology Initiatives, JTIs) or any other structure necessary for the efficient execution of Community research, technological development and demonstration programmes, mentioned in Article 171.
The Commission proposes, the Economic and Social Committee (ESC) is consulted, the European Parliament is merely consulted, and the Council adopts the provisions by qualified majority.
The second paragraph relates to the implementing rules for the participation in the multiannual framework programme and the dissemination of research results (Article 167), supplementary research programmes, especially dissemination of knowledge and access by other member states (Article 168) and participation in research and development programmes undertaken by several member states (Article 169).
The Economic and Social Committee is consulted, and the co-decision procedure applies. The supplementary programmes must be approved by the member states concerned.
Outside the scope of Article 172 TEC are the following: The multiannual framework programme itself, adopted by co-decision according to Article 166(1), the specific programmes adopted by the Council by a qualified majority on a proposal from the Commission and after consulting the European Parliament, pursuant to Article 166(4) and international agreements (with third countries or international organisations; Article 170).
The current Article 172 of the Treaty establishing the European Community (TEC), as published in the latest consolidated version of the treaties, OJEU 29.12.2006 C 321 E/123:
(TITLE XVIII
RESEARCH AND TECHNOLOGICAL DEVELOPMENT)
Article 172 TEC
The Council, acting by qualified majority on a proposal from the Commission and after consulting the European Parliament and the Economic and Social Committee, shall adopt the provisions referred to in Article 171.
The Council, acting in accordance with the procedure referred to in Article 251 and after consulting the Economic and Social Committee, shall adopt the provisions referred to in Articles 167, 168 and 169. Adoption of the supplementary programmes shall require the agreement of the Member States concerned.
***
Original Lisbon Treaty (ToL)
Article 2, point 141 amended Article 170 TEC and point 142 inserted a new Article 172a (OJEU 17.12.2007 C 306/86).
In other words, Article 172 TEC underwent no specific amendment.
***
Renumbering the Treaty of Lisbon (ToL)
(The Table of equivalences of the original Treaty of Lisbon tells us that Title XVIII first became Title XVIII with the addition of space in the TFEU (ToL), and later renumbered Title XIX Research and technological development and space in the consolidated version.)
Article 172 TEC initially became Article 172 TFEU (ToL) before the renumbering of the treaty made it into Article 188 TFEU in the consolidated version of the Lisbon Treaty (OJEU 17.12.2007 C 306/217–218).
***
Lisbon Treaty consolidated
Article 188 TFEU
The legislative procedures remain the same, although the first paragraph no longer refers to qualified majority voting and the second paragraph uses the name ordinary legislative procedure (horizontal amendments). The Article was renumbered as were the provisions referred to. Article 188 TFEU appears like this in the consolidated version of the Treaty of Lisbon (OJEU 9.5.2008 C 115/131):
(TITLE XIX
RESEARCH AND TECHNOLOGICAL DEVELOPMENT AND SPACE)
Article 188 TFEU
(ex Article 172 TEC)
The Council, on a proposal from the Commission and after consulting the European Parliament and the Economic and Social Committee, shall adopt the provisions referred to in Article 187.
The European Parliament and the Council, acting in accordance with the ordinary legislative procedure and after consulting the Economic and Social Committee, shall adopt the provisions referred to in Articles 183, 184 and 185. Adoption of the supplementary programmes shall require the agreement of the Member States concerned.
***
Joint undertakings and other research structures
Here are some proposals and legislative acts pertaining to Article 172(1) TEC on joint undertakings and other structures.
Research infrastructures proposal
The Commission has made the Proposal for a Council Regulation on the Community legal framework for a European Research Infrastructure (ERI), Brussels, 25.7.2008 COM(2008) 467 final.
In the Commission’s view, the legal framework for a European Research Infrastructure is designed to facilitate the joint establishment and operation of research facilities of European interest between several Member States and countries associated to the Community R&D Framework Programme. It is being developed in response to requests from the Member States and the scientific community, because the available national and international legal forms are not fully adequate.
The legal base of the Regulation would be Article 171 TEC. The proposed Article 1 of the Regulation presents the intended scope:
Article 1
Subject-matter and scope
1. This Regulation establishes a framework laying down the requirements and procedures for and the effects of setting up a European Research Infrastructure (hereinafter referred to as "ERI").
2. It shall apply to research infrastructures of pan-European interest.
The Commission’s ERI proposal is available here:
http://ec.europa.eu/research/press/2008/pdf/com_2008_467_en.pdf
***
Joint Technology Initiatives (JTIs)
One of the concepts in the area of joint undertakings is Joint Technology Initiatives (JTIs), with the following description given on one of the Commission’s web pages:
JTIs aim to achieve greater strategic focus by supporting common ambitious research agendas in areas that are crucial for competitiveness and growth, assembling and coordinating at European level a critical mass of research. They therefore draw on all sources of R&D investment - public or private - and couple research tightly to innovation.
Source: Joint Technology Initiatives (web page):
http://ec.europa.eu/information_society/tl/research/priv_invest/jti/index_en.htm
Cordis offers more comprehensive information about Joint Technology Initiatives, under the Seventh Research Framework Programme (FP7), and subtitled Public-Private Partnerships in EU Research:
http://cordis.europa.eu/fp7/jtis/
***
Galileo
The first European Community joint research undertaking set up pursuant to Article 171 TEC, was Galileo.
Council Regulation (EC) No 876/2002 of 21 May 2002 setting up the Galileo Joint Undertaking
(originally published OJ 28.5.2002 L 138/1). The consolidated Regulation is available here:
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CONSLEG:2002R0876:20061222:EN:PDF
***
New joint undertakings
Since the beginning of the Seventh Framework Programme for Research and Technological Development (FP7) the establishment of new joint undertakings has boomed as a promising sign of intensifying EU research efforts.
Clean Sky Joint Undertaking
Council Regulation (EC) No 71/2007 of 20 December 2007 setting up the Clean Sky Joint Undertaking, published OJEU 4.2.2008 L 30/1 (but later corrigenda), is available here:
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2008:030:0001:0020:EN:PDF
Introducing the concept Joint Technology Initiative (JTI), the Regulation sets up a joint undertaking within the meaning of Article 171 TEC:
Article 1
Setting up of a Joint Undertaking
1. For the implementation of the Joint Technology Initiative on Clean Sky, a Joint Undertaking within the meaning of Article 171 of the Treaty is hereby set up for the period up to 31 December 2017 (hereinafter referred to as the Clean Sky Joint Undertaking).
2. Its seat shall be located in Brussels, Belgium.
***
ENIAC
Council Regulation (EC) No 72/2008 of 20 December 2007 setting up the ENIAC Joint Undertaking, originally published OJEU 4.2.2008 L 30/21. The consolidated version is available here:
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CONSLEG:2008R0072:20080207:EN:PDF
The joint undertaking was based on Articles 171 and 172 TEC:
Article 1
Establishment of a Joint Undertaking
1. For the implementation of the Joint Technology Initiative (hereinafter JTI) on nanoelectronics, a Joint Undertaking within the meaning of Article 171 of the Treaty (hereinafter the ENIAC Joint Undertaking) is hereby set up for a period up to 31 December 2017.
2. The seat of the ENIAC Joint Undertaking shall be located in Brussels, Belgium.
***
IMI
Council Regulation (EC) No 73/2008 of 20 December 2007 setting up the Joint Undertaking for the implementation of the Joint Technology Initiative on Innovative Medicines, published OJEU 4.2.2008 L 30/38, is accessible here:
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2008:030:0038:0051:EN:PDF
The IMI Regulation was based on Articles 171 and 172 TEC:
Article 1
Establishment of a Joint Undertaking
1. A Joint Undertaking for the implementation of the Joint Technology Initiative on Innovative Medicines is hereby set up for a period up to 31 December 2017 (hereinafter referred to as IMI Joint Undertaking).
2. The seat of the IMI Joint Undertaking shall be located in Brussels, Belgium.
***
ARTEMIS
Council Regulation (EC) No 74/2008 of 20 December 2007 on the establishment of the ‘ARTEMIS Joint Undertaking’ to implement a Joint Technology Initiative in Embedded Computing Systems, originally published =JEU4.2.2008 L 30/52, but the consolidated version is available here:
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CONSLEG:2008R0074:20080207:EN:PDF
The Artemis Regulation was based on Articles 171 and 172 TEC:
Article 1
Establishment of a Joint Undertaking
1. For the implementation of the Joint Technology Initiative (JTI) on Embedded Computing Systems, a Joint Undertaking within the meaning of Article 171 of the Treaty, hereinafter referred to as the ‘ARTEMIS Joint Undertaking’, is hereby set up for a period up to 31 December 2017.
2. The seat of the ARTEMIS Joint Undertaking shall be located in Brussels, Belgium.
***
Fuel Cells and Hydrogen (FCH)
Council Regulation (EC) No 521/2008 of 30 May 2008 setting up the Fuel Cells and Hydrogen Joint Undertaking, published OJEU 12.6.2008 L 153/1, is available here:
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2008:153:0001:0020:EN:PDF
The Fuel Cells and Hydrogen Joint Undertaking Regulation was based on Articles 171 and 172 TEC:
Article 1
Establishment
1. For the implementation of the Joint Technology Initiative (hereinafter referred to as JTI) on Fuel Cells and Hydrogen, a Joint Undertaking within the meaning of Article 171 of the Treaty (hereinafter referred to as the FCH Joint Undertaking) is hereby set up for a period up to 31 December 2017.
2. The seat of the FCH Joint Undertaking shall be located in Brussels, Belgium.
***
Implementation, supplementary and participation
Here we look at some of the legal acts adopted according to the second paragraph of Article 172 TEC: implementing rules for the participation in the multiannual framework programme and the dissemination of research results (Article 167), supplementary research programmes, especially dissemination of knowledge and access by other member states (Article 168) and participation in research and development programmes undertaken by several member states (Article 169).
Rules for participation and dissemination
The rules for participation mentioned in the first indent and for dissemination of research results mentioned in the second indent of Article 167 TEC (and Article 183 TFEU) are set out in Regulation (EC) No 1906/2006 of the European Parliament and of the Council of 18 December 2006 laying down the rules for the participation of undertakings, research centres and universities in actions under the Seventh Framework Programme and for the dissemination of research results (2007-2013), published OJEU 30.12.2006 L 391/1, available here:
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2006:391:0001:0018:EN:PDF
***
Supplementary research programmes
In an earlier post we found supplementary programmes mentioned as an option for the future.
***
Participation (joint implementation)
CORDIS (the Community Research and Development Information Service) has established a portal dedicated to Article 169 initiatives:
http://cordis.europa.eu/fp7/art169/home_en.html
The web pages seem to contain ‘everything’ you need to know about joint implementation.
Ralf Grahn
We recapitulate legal acts in force and point to proposals aiming at developing research infrastructures by new means.
***
Article 172 TEC
Article 172 (ex Article 130o) of the Treaty establishing the European Community (TEC) sets out the procedures for some of the acts concerning research and technological development.
Paragraph 1 refers to the joint undertakings (Joint Technology Initiatives, JTIs) or any other structure necessary for the efficient execution of Community research, technological development and demonstration programmes, mentioned in Article 171.
The Commission proposes, the Economic and Social Committee (ESC) is consulted, the European Parliament is merely consulted, and the Council adopts the provisions by qualified majority.
The second paragraph relates to the implementing rules for the participation in the multiannual framework programme and the dissemination of research results (Article 167), supplementary research programmes, especially dissemination of knowledge and access by other member states (Article 168) and participation in research and development programmes undertaken by several member states (Article 169).
The Economic and Social Committee is consulted, and the co-decision procedure applies. The supplementary programmes must be approved by the member states concerned.
Outside the scope of Article 172 TEC are the following: The multiannual framework programme itself, adopted by co-decision according to Article 166(1), the specific programmes adopted by the Council by a qualified majority on a proposal from the Commission and after consulting the European Parliament, pursuant to Article 166(4) and international agreements (with third countries or international organisations; Article 170).
The current Article 172 of the Treaty establishing the European Community (TEC), as published in the latest consolidated version of the treaties, OJEU 29.12.2006 C 321 E/123:
(TITLE XVIII
RESEARCH AND TECHNOLOGICAL DEVELOPMENT)
Article 172 TEC
The Council, acting by qualified majority on a proposal from the Commission and after consulting the European Parliament and the Economic and Social Committee, shall adopt the provisions referred to in Article 171.
The Council, acting in accordance with the procedure referred to in Article 251 and after consulting the Economic and Social Committee, shall adopt the provisions referred to in Articles 167, 168 and 169. Adoption of the supplementary programmes shall require the agreement of the Member States concerned.
***
Original Lisbon Treaty (ToL)
Article 2, point 141 amended Article 170 TEC and point 142 inserted a new Article 172a (OJEU 17.12.2007 C 306/86).
In other words, Article 172 TEC underwent no specific amendment.
***
Renumbering the Treaty of Lisbon (ToL)
(The Table of equivalences of the original Treaty of Lisbon tells us that Title XVIII first became Title XVIII with the addition of space in the TFEU (ToL), and later renumbered Title XIX Research and technological development and space in the consolidated version.)
Article 172 TEC initially became Article 172 TFEU (ToL) before the renumbering of the treaty made it into Article 188 TFEU in the consolidated version of the Lisbon Treaty (OJEU 17.12.2007 C 306/217–218).
***
Lisbon Treaty consolidated
Article 188 TFEU
The legislative procedures remain the same, although the first paragraph no longer refers to qualified majority voting and the second paragraph uses the name ordinary legislative procedure (horizontal amendments). The Article was renumbered as were the provisions referred to. Article 188 TFEU appears like this in the consolidated version of the Treaty of Lisbon (OJEU 9.5.2008 C 115/131):
(TITLE XIX
RESEARCH AND TECHNOLOGICAL DEVELOPMENT AND SPACE)
Article 188 TFEU
(ex Article 172 TEC)
The Council, on a proposal from the Commission and after consulting the European Parliament and the Economic and Social Committee, shall adopt the provisions referred to in Article 187.
The European Parliament and the Council, acting in accordance with the ordinary legislative procedure and after consulting the Economic and Social Committee, shall adopt the provisions referred to in Articles 183, 184 and 185. Adoption of the supplementary programmes shall require the agreement of the Member States concerned.
***
Joint undertakings and other research structures
Here are some proposals and legislative acts pertaining to Article 172(1) TEC on joint undertakings and other structures.
Research infrastructures proposal
The Commission has made the Proposal for a Council Regulation on the Community legal framework for a European Research Infrastructure (ERI), Brussels, 25.7.2008 COM(2008) 467 final.
In the Commission’s view, the legal framework for a European Research Infrastructure is designed to facilitate the joint establishment and operation of research facilities of European interest between several Member States and countries associated to the Community R&D Framework Programme. It is being developed in response to requests from the Member States and the scientific community, because the available national and international legal forms are not fully adequate.
The legal base of the Regulation would be Article 171 TEC. The proposed Article 1 of the Regulation presents the intended scope:
Article 1
Subject-matter and scope
1. This Regulation establishes a framework laying down the requirements and procedures for and the effects of setting up a European Research Infrastructure (hereinafter referred to as "ERI").
2. It shall apply to research infrastructures of pan-European interest.
The Commission’s ERI proposal is available here:
http://ec.europa.eu/research/press/2008/pdf/com_2008_467_en.pdf
***
Joint Technology Initiatives (JTIs)
One of the concepts in the area of joint undertakings is Joint Technology Initiatives (JTIs), with the following description given on one of the Commission’s web pages:
JTIs aim to achieve greater strategic focus by supporting common ambitious research agendas in areas that are crucial for competitiveness and growth, assembling and coordinating at European level a critical mass of research. They therefore draw on all sources of R&D investment - public or private - and couple research tightly to innovation.
Source: Joint Technology Initiatives (web page):
http://ec.europa.eu/information_society/tl/research/priv_invest/jti/index_en.htm
Cordis offers more comprehensive information about Joint Technology Initiatives, under the Seventh Research Framework Programme (FP7), and subtitled Public-Private Partnerships in EU Research:
http://cordis.europa.eu/fp7/jtis/
***
Galileo
The first European Community joint research undertaking set up pursuant to Article 171 TEC, was Galileo.
Council Regulation (EC) No 876/2002 of 21 May 2002 setting up the Galileo Joint Undertaking
(originally published OJ 28.5.2002 L 138/1). The consolidated Regulation is available here:
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CONSLEG:2002R0876:20061222:EN:PDF
***
New joint undertakings
Since the beginning of the Seventh Framework Programme for Research and Technological Development (FP7) the establishment of new joint undertakings has boomed as a promising sign of intensifying EU research efforts.
Clean Sky Joint Undertaking
Council Regulation (EC) No 71/2007 of 20 December 2007 setting up the Clean Sky Joint Undertaking, published OJEU 4.2.2008 L 30/1 (but later corrigenda), is available here:
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2008:030:0001:0020:EN:PDF
Introducing the concept Joint Technology Initiative (JTI), the Regulation sets up a joint undertaking within the meaning of Article 171 TEC:
Article 1
Setting up of a Joint Undertaking
1. For the implementation of the Joint Technology Initiative on Clean Sky, a Joint Undertaking within the meaning of Article 171 of the Treaty is hereby set up for the period up to 31 December 2017 (hereinafter referred to as the Clean Sky Joint Undertaking).
2. Its seat shall be located in Brussels, Belgium.
***
ENIAC
Council Regulation (EC) No 72/2008 of 20 December 2007 setting up the ENIAC Joint Undertaking, originally published OJEU 4.2.2008 L 30/21. The consolidated version is available here:
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CONSLEG:2008R0072:20080207:EN:PDF
The joint undertaking was based on Articles 171 and 172 TEC:
Article 1
Establishment of a Joint Undertaking
1. For the implementation of the Joint Technology Initiative (hereinafter JTI) on nanoelectronics, a Joint Undertaking within the meaning of Article 171 of the Treaty (hereinafter the ENIAC Joint Undertaking) is hereby set up for a period up to 31 December 2017.
2. The seat of the ENIAC Joint Undertaking shall be located in Brussels, Belgium.
***
IMI
Council Regulation (EC) No 73/2008 of 20 December 2007 setting up the Joint Undertaking for the implementation of the Joint Technology Initiative on Innovative Medicines, published OJEU 4.2.2008 L 30/38, is accessible here:
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2008:030:0038:0051:EN:PDF
The IMI Regulation was based on Articles 171 and 172 TEC:
Article 1
Establishment of a Joint Undertaking
1. A Joint Undertaking for the implementation of the Joint Technology Initiative on Innovative Medicines is hereby set up for a period up to 31 December 2017 (hereinafter referred to as IMI Joint Undertaking).
2. The seat of the IMI Joint Undertaking shall be located in Brussels, Belgium.
***
ARTEMIS
Council Regulation (EC) No 74/2008 of 20 December 2007 on the establishment of the ‘ARTEMIS Joint Undertaking’ to implement a Joint Technology Initiative in Embedded Computing Systems, originally published =JEU4.2.2008 L 30/52, but the consolidated version is available here:
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CONSLEG:2008R0074:20080207:EN:PDF
The Artemis Regulation was based on Articles 171 and 172 TEC:
Article 1
Establishment of a Joint Undertaking
1. For the implementation of the Joint Technology Initiative (JTI) on Embedded Computing Systems, a Joint Undertaking within the meaning of Article 171 of the Treaty, hereinafter referred to as the ‘ARTEMIS Joint Undertaking’, is hereby set up for a period up to 31 December 2017.
2. The seat of the ARTEMIS Joint Undertaking shall be located in Brussels, Belgium.
***
Fuel Cells and Hydrogen (FCH)
Council Regulation (EC) No 521/2008 of 30 May 2008 setting up the Fuel Cells and Hydrogen Joint Undertaking, published OJEU 12.6.2008 L 153/1, is available here:
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2008:153:0001:0020:EN:PDF
The Fuel Cells and Hydrogen Joint Undertaking Regulation was based on Articles 171 and 172 TEC:
Article 1
Establishment
1. For the implementation of the Joint Technology Initiative (hereinafter referred to as JTI) on Fuel Cells and Hydrogen, a Joint Undertaking within the meaning of Article 171 of the Treaty (hereinafter referred to as the FCH Joint Undertaking) is hereby set up for a period up to 31 December 2017.
2. The seat of the FCH Joint Undertaking shall be located in Brussels, Belgium.
***
Implementation, supplementary and participation
Here we look at some of the legal acts adopted according to the second paragraph of Article 172 TEC: implementing rules for the participation in the multiannual framework programme and the dissemination of research results (Article 167), supplementary research programmes, especially dissemination of knowledge and access by other member states (Article 168) and participation in research and development programmes undertaken by several member states (Article 169).
Rules for participation and dissemination
The rules for participation mentioned in the first indent and for dissemination of research results mentioned in the second indent of Article 167 TEC (and Article 183 TFEU) are set out in Regulation (EC) No 1906/2006 of the European Parliament and of the Council of 18 December 2006 laying down the rules for the participation of undertakings, research centres and universities in actions under the Seventh Framework Programme and for the dissemination of research results (2007-2013), published OJEU 30.12.2006 L 391/1, available here:
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2006:391:0001:0018:EN:PDF
***
Supplementary research programmes
In an earlier post we found supplementary programmes mentioned as an option for the future.
***
Participation (joint implementation)
CORDIS (the Community Research and Development Information Service) has established a portal dedicated to Article 169 initiatives:
http://cordis.europa.eu/fp7/art169/home_en.html
The web pages seem to contain ‘everything’ you need to know about joint implementation.
Ralf Grahn
EU Procurement Directive: Fuel extraction and terminal facilites
The general European Community (European Union) Procurement Directive 2004/18/EC, also known as the Classic Directive, does not apply to public contracts in the special sectors covered by the Utilities Directive 2004/17/EC.
Here we look at contracts excluded from the Procurement Directive because they fall within the scope of Article 7 of the Utilities Directive: Exploration for, or extraction of, oil, gas, coal or other solid fuels, as well as ports and airports.
***
Article 12 Procurement Directive
Article 12 of the Procurement Directive 2004/18/EC excludes the sectors to which the so called Utilities Directive 2004/17/EC applies as ‘lex specialis’: water, energy, transport and postal services:
S e c t i o n 3
Excluded contracts
Article 12
Contracts in the water, energy, transport and postal services sectors
This Directive shall not apply to public contracts which, under Directive 2004/17/EC, are awarded by contracting authorities exercising one or more of the activities referred to in Articles 3 to 7 of that Directive and are awarded for the pursuit of those activities, or to public contracts excluded from the scope of that Directive under Article 5(2) and Articles 19, 26 and 30 thereof.
[However, this Directive shall continue to apply to public contracts awarded by contracting authorities carrying out one or more of the activities referred to in Article 6 of Directive 2004/17/EC and awarded for those activities, insofar as the Member State concerned takes advantage of the option referred to in the second subparagraph of Article 71 thereof to defer its application.]
(Although not relevant for today’s blog post, the second paragraph is obsolete since 1 January 2009.)
***
Exclusion of utilities explained
Recital 20 of the Procurement Directive refers to Directive 2004/17/EC, the so called Utilities Directive, and explains the exclusion of specific sectors from the Procurement Directive:
(20) Public contracts which are awarded by the contracting authorities operating in the water, energy, transport and postal services sectors and which fall within the scope of those activities are covered by Directive 2004/17/EC of the European Parliament and of the Council of 31 March 2004 coordinating the procurement procedures of entities operating in the water, energy, transport and postal services sectors. However, contracts awarded by the contracting authorities in the context of their service activities for maritime, coastal or river transport must fall within the scope of this Directive.
***
Additional contracts excluded (and included)
The headline ‘water, energy, transport and postal services sectors’ gives us a rough indication of the activities, which fall under the Utilities Directive 2004/17/EC, but the scope of the Utilities Directive needs to be defined in order to determine when this Directive takes precedence.
The Utilities Directive is the primary source concerning public contracts awarded by contracting authorities exercising one or more of the activities referred to in Articles 3 to 7 of that Directive and awarded for the pursuit of those activities.
In earlier blog posts we have looked at Articles 3 to 6 of the Utilities Directive. Article 7 of the Utilities Directive applies to activities relating to the exploitation of a geographical area – land or water – for certain purposes (subject to further precisions):
Article 7 Utilities Directive
Exploration for, or extraction of, oil, gas, coal or other solid fuels, as well as ports and airports
This Directive shall apply to activities relating to the exploitation of a geographical area for the purpose of:
(a) exploring for or extracting oil, gas, coal or other solid fuels, or
(b) the provision of airports and maritime or inland ports or other terminal facilities to carriers by air, sea or inland waterway.
***
Fuel exploration or extraction
Recital 38 Utilities Directive
The exploitation of a geographical area for the purpose of exploring for or extracting oil, gas, coal or other solid fuels is given the following explanation in Recital 38 of the Utilities Directive:
(38) To forestall the proliferation of specific arrangements applicable to certain sectors only, the current special arrangements created by Article 3 of Directive 93/38/EEC and Article 12 of Directive 94/22/EC of the European Parliament and of the Council of 30 May 1994 on the conditions for granting and using authorisations for the prospection, exploration and production of hydrocarbons governing entities exploiting a geographical area for the purpose of exploring for or extracting oil, gas, coal or other solid fuels should be replaced by the general procedure allowing for exemption of sectors directly exposed to competition. It has to be ensured, however, that this will be without prej
Here we look at contracts excluded from the Procurement Directive because they fall within the scope of Article 7 of the Utilities Directive: Exploration for, or extraction of, oil, gas, coal or other solid fuels, as well as ports and airports.
***
Article 12 Procurement Directive
Article 12 of the Procurement Directive 2004/18/EC excludes the sectors to which the so called Utilities Directive 2004/17/EC applies as ‘lex specialis’: water, energy, transport and postal services:
S e c t i o n 3
Excluded contracts
Article 12
Contracts in the water, energy, transport and postal services sectors
This Directive shall not apply to public contracts which, under Directive 2004/17/EC, are awarded by contracting authorities exercising one or more of the activities referred to in Articles 3 to 7 of that Directive and are awarded for the pursuit of those activities, or to public contracts excluded from the scope of that Directive under Article 5(2) and Articles 19, 26 and 30 thereof.
[However, this Directive shall continue to apply to public contracts awarded by contracting authorities carrying out one or more of the activities referred to in Article 6 of Directive 2004/17/EC and awarded for those activities, insofar as the Member State concerned takes advantage of the option referred to in the second subparagraph of Article 71 thereof to defer its application.]
(Although not relevant for today’s blog post, the second paragraph is obsolete since 1 January 2009.)
***
Exclusion of utilities explained
Recital 20 of the Procurement Directive refers to Directive 2004/17/EC, the so called Utilities Directive, and explains the exclusion of specific sectors from the Procurement Directive:
(20) Public contracts which are awarded by the contracting authorities operating in the water, energy, transport and postal services sectors and which fall within the scope of those activities are covered by Directive 2004/17/EC of the European Parliament and of the Council of 31 March 2004 coordinating the procurement procedures of entities operating in the water, energy, transport and postal services sectors. However, contracts awarded by the contracting authorities in the context of their service activities for maritime, coastal or river transport must fall within the scope of this Directive.
***
Additional contracts excluded (and included)
The headline ‘water, energy, transport and postal services sectors’ gives us a rough indication of the activities, which fall under the Utilities Directive 2004/17/EC, but the scope of the Utilities Directive needs to be defined in order to determine when this Directive takes precedence.
The Utilities Directive is the primary source concerning public contracts awarded by contracting authorities exercising one or more of the activities referred to in Articles 3 to 7 of that Directive and awarded for the pursuit of those activities.
In earlier blog posts we have looked at Articles 3 to 6 of the Utilities Directive. Article 7 of the Utilities Directive applies to activities relating to the exploitation of a geographical area – land or water – for certain purposes (subject to further precisions):
Article 7 Utilities Directive
Exploration for, or extraction of, oil, gas, coal or other solid fuels, as well as ports and airports
This Directive shall apply to activities relating to the exploitation of a geographical area for the purpose of:
(a) exploring for or extracting oil, gas, coal or other solid fuels, or
(b) the provision of airports and maritime or inland ports or other terminal facilities to carriers by air, sea or inland waterway.
***
Fuel exploration or extraction
Recital 38 Utilities Directive
The exploitation of a geographical area for the purpose of exploring for or extracting oil, gas, coal or other solid fuels is given the following explanation in Recital 38 of the Utilities Directive:
(38) To forestall the proliferation of specific arrangements applicable to certain sectors only, the current special arrangements created by Article 3 of Directive 93/38/EEC and Article 12 of Directive 94/22/EC of the European Parliament and of the Council of 30 May 1994 on the conditions for granting and using authorisations for the prospection, exploration and production of hydrocarbons governing entities exploiting a geographical area for the purpose of exploring for or extracting oil, gas, coal or other solid fuels should be replaced by the general procedure allowing for exemption of sectors directly exposed to competition. It has to be ensured, however, that this will be without prej