Saturday 31 January 2009

Coordinating EU development cooperation

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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