European Parliament: Forming and maintaining a political group

How hard should it be to acquire the privileges accorded to political groups in the European Parliament?

What happens if members of a small group threaten to leave?


***

Affinities

Even if the Europarties and the EP political groups are mainly coalitions, the Rules of Procedure require ‘political affinities’, which means that members are prevented from banding together on purely technical grounds to gain influence; Rule 29(1).
The Rules of Procedure add the following official explanation: Parliament need not normally evaluate the political affinity of members of a group. In forming a group together under this Rule, Members concerned accept by definition that they have political affinity. Only when this is denied by the Members concerned is it necessary for Parliament to evaluate whether the group has been constituted in conformity with the Rules.


***


Minimum requirements

The following hurdle is that a political group must have members from at least one fifth of the member states (now six) and a minimum membership of twenty MEPs: Rule 29(2).



CHAPTER 4 POLITICAL GROUPS

Rule 29 Formation of political groups

1. Members may form themselves into groups according to their political affinities.

2. A political group shall comprise Members elected in at least one-fifth of the Member States. The minimum number of Members required to form a political group shall be twenty.

3. A Member may not belong to more than one political group.

4. The President shall be notified in a statement when a political group is set up. This statement shall specify the name of the group, its members and its bureau.

5. The statement shall be published in the Official Journal of the European
Union.


***

Higher hurdle after European elections 2009

When the newly elected European Parliament convenes after the June 2009 elections, the requirements for forming a political group are going to be higher, according to the Decision on amendment of Rule 29 of Parliament’s Rules of Procedure ─ Formation of political groups; Resolution P6_TA-PROV(2008)0351.

As voted by the EPP and the PES, MEPs from at least a quarter of the member states will be needed; seven instead of six. The minimum number of MEPs rises from twenty to twenty-five.

Officially the European Parliament has aligned the number of member states with the number of states mentioned with regard to political parties at European level and their funding, but for Europarties it is enough to have elected representatives at national level in seven member states.

The committee report also compared the percentages of total membership needed in national parliaments to form political groups.

In fact it will be harder for motley crews of MEPs to the right of the centre-right (EPP) and to the left of the centre-left (PES) to find enough soul-mates to form political groups after the European elections.

The new Rule 29(2) sets the following requirements:

2. A political group shall comprise Members elected in at least one-quarter of the Member States. The minimum number of Members required to form a political group shall be twenty-five.


***

Transitional rule

If a duly constituted group slips under one of the thresholds or both, it can provisionally continue to exist on certain conditions according to the new Article 29(2a):

2a. Where a group falls below the required threshold, the President, with the agreement of the Conference of Presidents, may allow it to continue to exist until Parliament’s next constitutive sitting, provided the following conditions are met:
- the members continue to represent at least one-fifth of the Member States;
- the group has been in existence for a period longer than one year.
The President shall not apply this derogation where there is sufficient evidence to suspect that it is being abused.


***

Are these changes needed for the orderly conduct of business, or were the largest groups out to make life hard for potential secessionists?


Ralf Grahn

European Parliament: Political groups run the show

The first paragraph of Article 197 of the Treaty establishing the European Community (TEC) as well as the future(?) Lisbon Treaty Article 14(4) of the Treaty on European Union (TEU) let the European Parliament decide freely on most of its internal organisation.


Rules of Procedure

The main text in this respect is the Rules of Procedure (16th edition, October 2008), available at:

http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//NONSGML+RULES-EP+20081022+0+DOC+PDF+V0//EN&language=EN


***

Group and strength

The Rules of Procedure make it quite clear that the political groups run the show. After a recent amendment ─ Resolution P6_TA(2007)0499 ─ only one of the non-attached members (non-inscrits, NI) is allowed to attend the meetings of the Conference of Presidents, without a vote.

Among the political groups, the bottom line is that the larger ones decide. Even if each group is represented in the Conference of Presidents, the chairs of the political groups vote according to the parliamentary strength of their groups:

Rule 23 Composition of the Conference of Presidents

1. The Conference of Presidents shall consist of the President of Parliament and the chairs of the political groups. The chair of a political group may arrange to be represented by a member of that group.

2. The non-attached Members shall delegate one of their number to attend meetings of the Conference of Presidents, without having the right to vote.

3. The Conference of Presidents shall endeavour to reach a consensus on matters referred to it.

Where a consensus cannot be reached, the matter shall be put to a vote subject to a weighting based on the number of Members in each political group.


***

The requirements for a political group will be treated in a later post.


Ralf Grahn

European Parliament: Political groups

At the present stage of development, in the absence of a real European party statute, the political groups of the European Parliament are mainly coalitions of representatives from different national political parties, but they are still vital to the conduct of political business.

***

Overview

Those who want an overview of the history until the present situation can read the Wikipedia article Political groups of the European Parliament (latest modification 27 February 2009):

http://en.wikipedia.org/wiki/Political_groups_of_the_European_Parliament


***

Political groups

The 785 members of the European Parliament are spread across seven political groups, but some MEPs are non-attached. The membership numbers of the groups are from the Wikipedia article. I have added the web addresses.

The lengthy names are an indication that the political groups (and the political parties) at European level are still mainly coalitions of more or less likeminded national political parties.

EPP-ED

The Group of the European People’s Party (Christian Democrats) and European Democrats (EPP-ED) is the largest political group with 288 members of the European Parliament:

http://www.epp-ed.eu/home/en/default.asp


PES

With 215 MEPs the Socialist Group in the European Parliament (PSE) is the second largest:

http://www.socialistgroup.eu/gpes/



ALDE

Third in size is the Alliance of Liberals and Democrats for Europe (ALDE) with 101 MEPs:

http://www.alde.eu/



UEN

Union for Europe of the Nations (UEN) has the fourth largest group, with 44 members:

http://www.uengroup.org/home.html



Greens─EFA

The Group of Greens─European Free Alliance (Greens─EFA) has a group of 42 MEPs:

http://www.greens-efa.org/index.htm


GUE─NGL

The Confederal Group of the European United Left─Nordic Green Left (GUE─NGL) has 41 members:

http://www.guengl.eu/showPage.jsp


I/D

Independence/Democracy (I/D) houses 24 MEPs:

http://indemgroup.org/


NI

There are now 30 MEPs outside the political groups, classified as Non-Inscrits (NI).


***

In the following post we look at how the EP’s Rules of Procedure make the political groups the lifeblood of parliamentary business.


Ralf Grahn

European Parliament: Committees ─ parliamentary engine

Many are content to see the more or less shiny exteriors of a car, but some want to understand how the engine works. The committees of the European Parliament are essential parts of the parliamentary engine.


Plenary sittings are the tip of the iceberg, but the preparatory work takes place in specialised committees, most of them standing (permanent).

The names of the committees give a fair indication of their areas of activity. In Eurospeak the committees are known under their acronyms.


***

Overview

The European Parliament’s web pages offer a listing on the existing committees, and from there you can access information about the work of each of them:

http://www.europarl.europa.eu/activities/committees/committeesList.do?language=EN





Standing committees

AFET
Foreign Affairs


Sub-committee DROI Human Rights


Sub-committee SEDE Security and Defence


DEVE
Development


INTA
International Trade


BUDG
Budgets


CONT
Budgetary Control


ECON
Economic and Monetary Affairs


EMPL
Employment and Social Affairs


ENVI
Environment, Public Health and Food Safety


ITRE
Industry, Research and Energy


IMCO
Internal Market and Consumer Protection


TRAN
Transport and Tourism


REGI
Regional Development


AGRI
Agriculture and Rural Development


PECH
Fisheries


CULT
Culture and Education


JURI
Legal Affairs


LIBE
Civil Liberties, Justice and Home Affairs


AFCO
Constitutional Affairs


FEMM
Women's Rights and Gender Equality


PETI
Petitions



Temporary committees

CLIM
Climate Change





***

Common rules

The first paragraph of Article 197 of the Treaty establishing the European Community (and Article 14(4) of the Treaty on European Union as presented in the consolidated version of the Treaty of Lisbon) leave most of the internal organisation to be decided by the European Parliament itself.

The EP’s Rules of Procedure (16th edition, October 2008) constitute the backbone of its internal organisation:

http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//NONSGML+RULES-EP+20081022+0+DOC+PDF+V0//EN&language=EN

***

Committee procedures

Here we are going to sample the common rules on procedure in committee, dealt with in Chapter 2 of the Rules of Procedure.

Legislative report

The committee chair proposes the procedure to follow and the committee appoints a rapporteur to draft the report. The rapporteur drafts amendments to the legislative proposal (with short justifications) and a draft legislative resolution (with an explanatory statement including financial impact):


CHAPTER 2 PROCEDURE IN COMMITTEE

Rule 42 Legislative reports

1. The chair of the committee to which a Commission proposal has been referred shall propose to the committee the procedure to be followed.

2. Following a decision on the procedure to be followed, and if Rule 43 does not apply, the committee shall appoint a rapporteur on the Commission proposal from among its members or permanent substitutes if it has not yet done so on the basis of the annual legislative programme agreed under Rule 33.

3. The committee's report shall comprise:

a) draft amendments, if any, to the proposal, accompanied, if appropriate, by short justifications which shall be the responsibility of the rapporteur and shall not be put to the vote;

b) a draft legislative resolution, in accordance with Rule 51(2);

c) if appropriate, an explanatory statement including a financial statement which establishes the magnitude of any financial impact of the report and its compatibility with the financial perspective.


***

Simplified procedure

If there is overwhelming support in the committee for approving the legislative proposal without amendments, a simplified procedure can be adopted. Likewise if the amendments seem clear enough on the basis of the initial discussion:


Rule 43 Simplified procedure

1. Following a first discussion of a legislative proposal, the chair may propose that it be approved without amendment. Unless at least one-tenth of the members of the committee object, the chair shall present to Parliament a report approving the proposal. Rule 131(1), second subparagraph, (2) and (4) shall apply.

2. The chair may alternatively propose that a set of amendments be drafted by the chair or by the rapporteur reflecting the committee's discussion. If the committee so agrees, these amendments shall be sent to the members of the committee. Unless at least one-tenth of the members of the committee object within a set time limit, which may not be less than twenty-one days from the date of dispatch, the report shall be considered as having been adopted by the committee. In this case the draft legislative resolution and the amendments shall be submitted to Parliament without debate pursuant to Rule 131(1), second subparagraph, (2) and (4).

3. If at least one-tenth of the committee's members object, the amendments shall be put to the vote at the next meeting of the committee.

4. The first and second sentences of paragraph 1, the first, second and third sentences of paragraph 2 and paragraph 3 shall apply, mutatis mutandis, to committee opinions within the meaning of Rule 46.


***

Non-legislative report

The European Parliament does not deal solely with legislative proposals, but expresses its opinion on a variety of Commission consultation papers and requests for opinion:

Rule 44 Non-legislative reports

1. Where a committee draws up a non-legislative report, it shall appoint a rapporteur from among its members or permanent substitutes.

2. The rapporteur shall be responsible for preparing the committee's report and for presenting it to Parliament on behalf of the committee.

3. The committee's report shall comprise:

a) a motion for a resolution;

b) an explanatory statement including a financial statement which establishes the magnitude of any financial impact of the report and its compatibility with the financial perspective;

c) the texts of any motions for resolutions to be included under Rule 113(4).


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Own-initiative report

The EP may want to express its opinion and request legislative proposals on certain issues, but the Rules of Procedure impose the judicious use report on the EP’s own initiative by the requirement that such a report has to be authorised by the Conference of Presidents.

The official explanations add: The Conference of Presidents shall take a decision on requests for authorisation to draw up reports submitted pursuant to paragraph 1 on the basis of implementing provisions which it shall itself lay down. If a committee's competence to draw up a report for which it has requested authorisation is challenged, the Conference of Presidents shall take a decision within six weeks on the basis of a recommendation from the Conference of Committee Chairs, or, if no such recommendation is forthcoming, from its chair. If the Conference of Presidents fails to take a decision within that period, the recommendation shall be declared to have been approved.

Rule 45 on own-initiative reports:


Rule 45 Own-initiative reports

1. A committee intending to draw up a report and to submit a motion for a resolution to Parliament on a subject within its competence on which neither a consultation nor a request for an opinion has been referred to it pursuant to Rule 179(1) may do so only with the authorisation of the Conference of Presidents. Where such authorisation is withheld the reason must always be stated.

2. Motions for resolutions contained in own-initiative reports shall be examined by Parliament pursuant to the short presentation procedure set out in Rule 131a. Amendments to such motions for resolutions shall not be admissible for consideration in plenary unless tabled by the rapporteur to take account of new information, but alternative motions for resolutions may be tabled in accordance with Rule 151(4). This paragraph shall not apply where the subject of the report qualifies for a key debate in plenary, where the report is drawn up pursuant to the right of initiative referred to in Rule 38a or 39, or where the report can be considered a strategic report according to the criteria set out by the Conference of Presidents. [Cf. Annex XVIc]

3. Where the subject of the report comes under the right of initiative referred to in Rule 38a, authorisation may be withheld only on the grounds that the conditions set out in the Treaties are not met.

4. In the cases referred to in Rule 38a and Rule 39, the Conference of Presidents shall take a decision within two months.


***

Opinions of committees

Reports to be drafted have to be assigned to a responsible committee, but the issues often have implications for other policy areas (and committees). Therefore it is standard parliamentary practice to request opinions from other committees with regard to their remit:


Rule 46 Opinions of committees

1. Should the committee to which a question was first referred wish to hear the views of another committee, or should another committee wish to make known its views on the report of the committee to which a question was first referred, such committees may ask the President that, in accordance with Rule 179(3), one committee be named as the committee responsible and the other as the committee asked for an opinion.

2. In the case of documents of a legislative nature within the meaning of Rule 40(1), the opinion shall consist of draft amendments to the text referred to the committee accompanied, if appropriate, by short justifications. Such justifications shall be the responsibility of the rapporteur for the opinion and shall not be put to the vote. If necessary the committee may submit a short written justification for the opinion taken as a whole.

In the case of non-legislative texts, the opinion shall consist of suggestions for parts of the motion for a resolution submitted by the committee responsible.

The committee responsible shall put these draft amendments or suggestions to the vote.

The opinions shall deal solely with those matters that fall under the areas of responsibility of the committee giving an opinion.

3. The committee responsible shall fix a deadline within which the committee asked for an opinion must deliver it if it is to be taken into account in the committee responsible. Any changes to the announced timetable shall be immediately communicated by the committee responsible to the committee(s) asked for an opinion. The committee responsible shall not reach its final conclusions before that time limit has expired.

4. All adopted opinions shall be annexed to the report of the committee responsible.

5. Only the committee responsible may table amendments in Parliament.

6. The chair and rapporteur of the committee asked for an opinion shall be invited to take part in an advisory capacity in meetings of the committee responsible, insofar as these relate to the matter of common concern.


***

Joint responsibility

Borderline cases where a matter falls more or less equally within the remit of more than one committee require rules for cooperation in order to ensure consistency in the reports brought to the floor (and the output of the European Parliament).

The official explanations add: The wording of this Rule does not lay down any limits to its scope. Requests for application of the procedure with associated committees concerning non- legislative reports based on Rules 45(1) and 112(1) and (2) are admissible.


Rule 47 on associated committees:


Rule 47 Procedure with associated committees

Where a question of competence has been referred to the Conference of Presidents pursuant to Rules 179(2) or 45, and the Conference of Presidents, on the basis of Annex VI, considers that the matter falls almost equally within the competence of two or more committees, or that different parts of the matter fall under the competence of two or more committees, Rule 46 shall apply with the following additional provisions:

- the timetable shall be jointly agreed by the committees concerned;

- the rapporteur and the rapporteurs for opinions shall keep each other informed and shall endeavour to agree on the texts they propose to their committees and on their position regarding amendments;

- the chairs, rapporteur and rapporteurs for opinions concerned shall endeavour to jointly identify areas of the text falling within their exclusive or joint competences and agree on the precise arrangements for their cooperation;

- the committee responsible shall accept without a vote amendments from an associated committee where they concern matters which the chair of the committee responsible considers, on the basis of Annex VI, after consulting the chair of the associated committee, to fall under the exclusive competence of the associated committee and which do not contradict other elements of the report. The chair of the committee responsible shall take account of any agreement reached under the third indent;

- in the event of a conciliation procedure taking place on the proposal, Parliament's delegation shall include the rapporteur of any associated committee.


***

Drafting reports

Even if the explanatory statement is the responsibility of the rapporteur, he or she has to respect the rule that it has to accord with the approved draft resolution. At least the total committee vote is recorded as well as a summary of the minority opinion. In some cases a report may not be forthcoming; the committee can appoint a new rapporteur or propose a plenary debate on the basis of an oral report:



Rule 48 Drafting of reports

1. The explanatory statement shall be the responsibility of the rapporteur and shall not be put to the vote. It must, however, accord with the text of the motion for a resolution as adopted and any amendments proposed by the committee. If it fails to do so, the chair of the committee may delete the explanatory statement.

2. The report shall state the result of the vote taken on the report as a whole. In addition, if at least one-third of the members present so request when the vote is taken, the report shall indicate how each member voted.

3. Where the committee's opinion is not unanimous the report shall also give a summary of the minority opinion. Minority opinions shall be expressed when the vote on the text as a whole is taken, and may, at the request of their authors, be the subject of a written declaration not exceeding 200 words in length, annexed to the explanatory statement.

The chair shall settle any disputes which may arise as a result of the application of these provisions.

4. On a proposal from its bureau, a committee may set a deadline within which the rapporteur shall submit the draft report. This deadline may be extended or a new rapporteur appointed.

5. Once the deadline has expired, the committee may instruct its chair to ask for the matter referred to it to be placed on the agenda of one of the next sittings of Parliament. The debates may then be conducted on the basis of an oral report by the committee concerned.

***

The committees are central to the functioning of the European Parliament, and the common rules sampled above cover just a part of nearly forty index references to EP committees in the Rules of Procedure.


Ralf Grahn

European Parliament: MEPs’ assistants

The so called Assistants’ Statute has now been published. Officially it is Council Regulation (EC) No 160/2009 of 23 February 2009 amending the Conditions of Employment of Other Servants of the European Communities; Official Journal of the European Union (OJEU) 27.2.2009 L 55/1.

The Regulation enters into force after the European elections in June 2009. It lays down basic rules on ‘accredited parliamentary assistants’, employed at one of the European Parliament's three places of work under the specific legal arrangements adopted on the basis of Article 283 of the Treaty and whose contracts are concluded and administered directly by the European Parliament. These assistants will be employed directly by the European Parliament.

The European Parliament will adopt implementing rules.

Local assistants will still work on contracts concluded according to the applicable national laws, but subject to the implementing provisions to be issued.


Ralf Grahn

European Parliament: “Trust us ─ we are clean (soon)”

It is a promising sign. The European Parliament has reacted to reports on wide-spread sleaze.

But the statement is an almost blanket denial. The issues are serious enough to merit space. First, let the EP speak.

Then we try to evaluate the measures and trust of the European Parliament.


***

European Parliament press statement

On 24 February 2009 the European Parliament issued the following press release:


Getting the facts straight on MEPs’ allowances

Institutions - 24-02-2009 - 10:34

Recent media reports in some Member States have given a false impression of the situation on MEPs’ expenses. In fact, following an Internal Audit Report made one year ago, the European regulatory framework was subject to a major change last December when Parliament and Council approved a new statute for Parliamentary Assistants.

Moreover, effective controls have already taken place: 99.5 per cent of the payments made by Parliament to Members' assistants in years 2004-2007 under the rules governing parliamentary expenses and allowances has now been cleared as regular based on extensive checks of the relevant documentation.

These checks have been carried out by Parliament’s services for all Members, whether or not they have been subject of reporting in the media and whether or not payments made to their assistants were mentioned in the Internal Audit Report. The checking of the payments relating to parliamentary assistance made in 2008 is currently ongoing.

Major reforms of systems for employment of assistants and travel expenses

Various claims have been made relating to an Internal Audit Report, which found a number of weaknesses in the system for the employment of MEPs’ assistants. The aim of Internal Audit Reports is to enable problems to be fixed, and this report was one of the factors behind Parliament’s decision essentially to replace the system governing the payments of parliamentary assistance allowances with a new European and common regime.

From July this year, Brussels-based assistants are being added on to the employment system for EU officials, with those based in the MEPs’ Member State being handled by qualified paying agents chosen by the Institution, guaranteeing tax and social security arrangements in the relevant Member State. The practice of Members employing close relatives as assistants is being phased out with new contracts no longer allowed.

A major reform of MEPs’ travel expenses will see, from July this year, expenses refunded on the basis of documented costs incurred rather than on a flat-rate basis as is the current practise.

Effective controls in place

Parliament’s services have undertaken and undertake a variety of checks on the various payments made to MEPs' assistants and request further information where doubts arise. If it has turned out that funds have been improperly claimed, the relevant sums have been recovered from the payments concerned. Where there has been and is good reason to suspect fraud, Parliament’s services can, and do, call in the EU’s anti-fraud investigations office, OLAF. This can ultimately lead to cases being passed to the relevant national prosecutors.


***

The EP press release is available at:

http://www.europarl.europa.eu/news/expert/infopress_page/008-50236-054-02-09-901-20090224IPR50235-23-02-2009-2009-false/default_en.htm

***

Documentation

The European Parliament offers supporting documentation, available through the same web page.

‘Allowances paid to Members of the European Parliament’ offers basic information about the amounts paid to MEPs.

There is a link to Decision 2005/684/EC, Euratom of the European Parliament of 28 September 2005 adopting the Statute for Members of the European Parliament, published in the Official Journal of the European Union 7.10.2005 L 262/1.

There is also a link to the so called Assistants’ statute, European Parliament legislative resolution P6_TA-PROV(2008)0606 of 16 December 2008 on the proposal for a Council regulation amending the Conditions of employment of other servants of the European Communities, awaiting final approval and publication.

In addition, there is an explanatory press release of 16 December 2008 ‘New employment and payment system for MEPs' assistants’.


***

Evaluation

It is indeed a positive sign that the European Parliament engages in a discussion about its practices. But can the case it presents be likened to more than white-wash?

The European Parliament offers no excuses for the notorious misuse of public funds by elected representatives, for the lack of controls and action against culprits, or for the active suppression of available evidence.

Only the belated reforms undertaken serve as an indirect admission of guilt.

We are now told to trust the European Parliament that the 99.5 per cent of MEPs’ expenses currently cleared as regular are indeed in order. How can we verify that? Are we offered any credible proof? Has the EP decided to publish audit reports?

The European Parliament has placed itself in the unenviable position of having forfeited the trust it might have had.

There is but one remedy to the credibility problem on past history and existing practices: earning back trust by extreme openness. Publish every audit report and invite new ones, open the books for outside inspection and take action against the sinners.


***

Promised reforms

Unrepentant and secretive about the past and present, the European Parliament lets us understand that it is going to become virtuous in July 2009, after the European elections.

The MEPs’ Statute seems to plug one gaping hole, since Article 20 foresees reimbursement or actual travel expenses only, from July 2009. Other allowances can still be flat-rate.

Late in the day, some changes were made to the status of MEPs’ assistants by way of a Bureau decision on 9 July 2008 on Implementing Measures for the Statute for the Members of the European Parliament. (Where are these Implementing Measures on the EP’s web pages?)

If the 16 December 2008 resolution on the so called Assistants’ Statute enters into force, accredited assistants at the EP’s places of work would be paid by the Parliament.

The Assistants’ Statute seemed less clear about the salaries of local assistants in MEPs’ home countries, but perhaps the following sentence in the press release should be interpreted as a promise of implementing measures (reforms) to come:

“The larger package of measures includes not only a European statute for assistants working in Brussels but also the handling of contracts of and payments to assistants working in the Member States by qualified and duly recognised payroll organisations in those countries.”


***

Let me get the facts straight: The European Parliament’s grudging reforms and recent press statement are still a long way off from a public relations success, especially from an institution which profiles itself as a watchdog with regard to how taxpayers’ funds are spent by other EU bodies and member states.


Ralf Grahn

European Parliament: Committee Chairs and Delegation Chairs

Article 197 TEC and the possible future Article 14(4) TEU place few restrictions on the European Parliament’s powers to organise its internal work, except for the President and the officers (Bureau).

The Bureau, which consists of the EP President and the fourteen Vice-Presidents with the five (now six) Quaestors in an advisory capacity is the main administrative body. The EP President and the chairs of the political groups convene in the Conference of Presidents to deal with the political and legislative work of the European Parliament.


***

Conference of Committee Chairs

Both at national and European level much of the real legislative work takes place in committees, where the chairs are responsible for the smooth and orderly running of business. Collectively the Committee Chairs constitute the Conference of Committee Chairs, an auxiliary body to the Bureau and the Conference of Presidents.

The composition and the main tasks of the Conference of Committee Chairs is laid down in Rule 26 of the EP’s Rules of Procedure (16th edition, October 2008), available at:

http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//NONSGML+RULES-EP+20081022+0+DOC+PDF+V0//EN&language=EN




Rule 26 Conference of Committee Chairs

1. The Conference of Committee Chairs shall consist of the chairs of all standing or temporary committees and shall elect its chair.

2. The Conference of Committee Chairs may make recommendations to the Conference of Presidents about the work of committees and the drafting of the agenda of part-sessions.

3. The Bureau and the Conference of Presidents may instruct the Conference of Committee Chairs to carry out specific tasks.


***

Parliamentary committees

A quick overview of the European Parliament’s committees is offered on the web page Parliamentary committees:

http://www.europarl.europa.eu/parliament/public/staticDisplay.do?id=45&pageRank=5&language=EN


The meeting documents, draft reports and reports of the committees are available to the public. In Eurospeak the committees are known by their acronyms. Here is a list of the committees, from page:

http://www.europarl.europa.eu/activities/committees/committeesList.do?language=EN




Standing committees
AFET
Foreign Affairs
Meeting documents

DROI Human Rights
Meeting documents

SEDE Security and Defence
Meeting documents

DEVE
Development
Meeting documents

INTA
International Trade
Meeting documents

BUDG
Budgets
Meeting documents

CONT
Budgetary Control
Meeting documents

ECON
Economic and Monetary Affairs
Meeting documents

EMPL
Employment and Social Affairs
Meeting documents

ENVI
Environment, Public Health and Food Safety
Meeting documents

ITRE
Industry, Research and Energy
Meeting documents

IMCO
Internal Market and Consumer Protection
Meeting documents

TRAN
Transport and Tourism
Meeting documents

REGI
Regional Development
Meeting documents

AGRI
Agriculture and Rural Development
Meeting documents

PECH
Fisheries
Meeting documents

CULT
Culture and Education
Meeting documents

JURI
Legal Affairs
Meeting documents

LIBE
Civil Liberties, Justice and Home Affairs
Meeting documents

AFCO
Constitutional Affairs
Meeting documents

FEMM
Women's Rights and Gender Equality
Meeting documents

PETI
Petitions
Meeting documents

Temporary committees
CLIM
Climate Change




***

Committee chairs

The members of the Conference of the Committee Chairs are the following:


23 Members found for
Other bodies : Conference of Committee Chairmen

1. GALEOTE, Gerardo
Chairman

2. SARYUSZ-WOLSKI, Jacek
Member

3. BORRELL FONTELLES, Josep
Member

4. MARKOV, Helmuth
Member

5. BÖGE, Reimer
Member

6. BÖSCH, Herbert
Member

7. BERÈS, Pervenche
Member

8. ANDERSSON, Jan
Member

9. OUZKÝ, Miroslav
Member

10. NIEBLER, Angelika
Member

11. McCARTHY, Arlene
Member

12. COSTA, Paolo
Member

13. PARISH, Neil
Member

14. MORILLON, Philippe
Member

15. BATZELI, Katerina
Member

16. GARGANI, Giuseppe
Member

17. DEPREZ, Gérard
Member

18. LEINEN, Jo
Member

19. ZÁBORSKÁ, Anna
Member

20. LIBICKI, Marcin
Member

21. FLAUTRE, Hélène
Member

22. von WOGAU, Karl
Member

23. SACCONI, Guido
Member





***


Conference of Delegation Chairs

The Conference of Delegation Chairs is the collective of the chairs of the standing interparliamentary delegations, and it acts in an advisory capacity to the Bureau and the Conference of Presidents:


Rule 27 Conference of Delegation Chairs

1. The Conference of Delegation Chairs shall consist of the chairs of all standing interparliamentary delegations and shall elect its chair.

2. The Conference of Delegation Chairs may make recommendations to the Conference of Presidents about the work of delegations.

3. The Bureau and the Conference of Presidents may instruct the Conference of Delegation Chairs to carry out specific tasks.


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Delegations

The web page Delegations presents brief information about interparliamentary contacts outside the European Union; 34 delegations in all:

http://www.europarl.europa.eu/parliament/public/staticDisplay.do?id=45&pageRank=6&language=EN

You can link to delegations for European and non-European parliaments.


***

Delegation chairs


Here is a list of the delegation chairs, from page:

http://www.europarl.europa.eu/members/expert/otherBodies/search.do?body=1514&language=EN


38 Members found for
Other bodies : Conference of Delegation Chairmen

1. OBIOLS i GERMÀ, Raimon
Chairman

2. SCHMITT, Pál
Member

3. TRAKATELLIS, Antonios
Member

4. LAGENDIJK, Joost
Member

5. MANN, Erika
Member

6. CATANIA, Giusto
Member

7. RAEVA, Bilyana Ilieva
Member

8. PACK, Doris
Member

9. OOMEN-RUIJTEN, Ria
Member

10. SEVERIN, Adrian
Member

11. MIKKO, Marianne
Member

12. PROTASIEWICZ, Jacek
Member

13. JUKNEVIČIENĖ, Ona
Member

14. ISLER BÉGUIN, Marie Anne
Member

15. HYBÁŠKOVÁ, Jana
Member

16. TRIANTAPHYLLIDES, Kyriacos
Member

17. ITURGAIZ ANGULO, Carlos José
Member

18. PATRIE, Béatrice
Member

19. BEER, Angelika
Member

20. EVANS, Jonathan
Member

21. Ó NEACHTAIN, Seán
Member

22. LIPIETZ, Alain
Member

23. SOUSA PINTO, Sérgio
Member

24. JARZEMBOWSKI, Georg
Member

25. STERCKX, Dirk
Member

26. EVANS, Robert
Member

27. GILL, Neena
Member

28. PODESTÀ, Guido
Member

29. NASSAUER, Hartmut
Member

30. PIRKER, Hubert
Member

31. CHICHESTER, Giles
Member

32. PRODI, Vittorio
Member

33. LOCATELLI, Pia Elda
Member

34. KINNOCK, Glenys
Member

35. SALAFRANCA SÁNCHEZ-NEYRA, José Ignacio
Member

36. PÖTTERING, Hans-Gert
Member

37. SARYUSZ-WOLSKI, Jacek
Member

38. BORRELL FONTELLES, Josep
Member







Ralf Grahn

EU: lawyer-linguists Estonian Slovenian Czech Latvian

The European Personnel Selection Office (EPSO) is organising open competitions, based on qualifications and tests, to constitute a reserve from which to recruit lawyer-linguists.

The notices have been published in the Official Journal of the European Union (OJEU) 25.2.2009 C 46 A/1 with regard to applicants with Estonian or Slovenian as their main language and (page 14) concerning Czech or Latvian language hopefuls.

The main requirements are the following:

“The European institutions recruit highly qualified lawyers, who must be able to translate often complex legal/legislative texts into the language of the competition from at least two languages and check such texts. The work will involve use of standard IT and other office-technology tools.”

The purpose of the competitions is to draw up reserve lists from which to fill vacant posts in the European institutions, in particular the Court of Justice, the Parliament and the Council.


Ralf Grahn

European Central Bank: Procurement amendments

The European Central Bank has aligned its procurement rules with the Procurement Directive 2004/18/EC.

The ECB is going to use the amended EU thresholds, establish lists of suitable suppliers for contracts below the thresholds and exclude bidders guilty of criminal acts or having conflicting interests.


The Decision of the European Central Bank ECB/2009/2 of 27 January 2009 amending Decision ECB/2007/5 laying down the Rules on Procurement has been officially published in the Official Journal of the European Union (OJEU) 24.2.2009 L 51/10. The Decision enters into force on 1 March 2009.

The original Decision ECB/2007/5 of 3 July 2007 was published in the OJEU 14.7.2007 L 184/34.


Ralf Grahn

European Parliament: Conference of Presidents ─ political business

The English versions of the current Article 197 TEC and Article 14(4) TEU of the consolidated Lisbon Treaty regulate only that the European Parliament elects its President and its officers from among its members. In other language versions the officers are defined as the Bureau.

The rest of the internal organisation of the European Parliament is left to itself, with the EP Rules of Procedure as the centrepiece.

Among the various 16th editions the one from October 2008 seems to be the latest, available here:

http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//NONSGML+RULES-EP+20081022+0+DOC+PDF+V0//EN&language=EN


***

Conference of Presidents

Composition

Rule 23 lays down the composition of the Conference of Presidents. The composition highlights the importance of the political groups in the running of parliamentary business. Their chairs are members of the Conference of Presidents, chaired by the EP President. Despite the aim to reach consensus the bottom line is that the largest parliamentary groups dominate, because their chairs vote with their number of MEPs. One non-attached member participates, but without a vote:


Rule 23 Composition of the Conference of Presidents

1. The Conference of Presidents shall consist of the President of Parliament and the chairs of the political groups. The chair of a political group may arrange to be represented by a member of that group.

2. The non-attached Members shall delegate one of their number to attend meetings of the Conference of Presidents, without having the right to vote.

3. The Conference of Presidents shall endeavour to reach a consensus on matters referred to it.

Where a consensus cannot be reached, the matter shall be put to a vote subject to a weighting based on the number of Members in each political group.


***

Duties

The Conference of Presidents is responsible for planning the legislative work and the agendas of the part-sessions, for questions relating to committees, for relations with the Commission and the Council as well as other EU bodies. The Conference maintains relations with national parliaments and non-EU countries and organisations. Seating arrangements and matters relating to the political groups fall within the remit of the Conference:


Rule 24 Duties of the Conference of Presidents

1. The Conference of Presidents shall carry out the duties assigned to it under the Rules of Procedure.

2. The Conference of Presidents shall take decisions on the organisation of Parliament's work and matters relating to legislative planning.

3. The Conference of Presidents shall be the authority responsible for matters relating to relations with the other institutions and bodies of the European Union and with the national parliaments of Member States. The Bureau shall name two Vice-Presidents who shall be entrusted with the implementation of the relations with national parliaments. They shall report back regularly to the Conference of Presidents on their activities in this regard.

4. The Conference of Presidents shall be the authority responsible for matters relating to relations with non-member countries and with non-Union institutions and organisations.

5. The Conference of Presidents shall draw up the draft agenda of Parliament's part-sessions.

6. The Conference of Presidents shall be the authority responsible for the composition and competence of committees, committees of inquiry and joint parliamentary committees, standing delegations and ad hoc delegations.

7. The Conference of Presidents shall decide how seats in the Chamber are to be allocated pursuant to Rule 32.

8. The Conference of Presidents shall be the authority responsible for authorising the drawing up of own-initiative reports.

9. The Conference of Presidents shall submit proposals to the Bureau concerning administrative and budgetary matters relating to the political groups.


***

Suspension or removal of MEP

Among the penalties for serious misconduct, generally decided by the President, is the submission to the Conference of Presidents, pursuant to Rule 18, of a proposal for the Member's suspension or removal from one or more of the elected offices held by the Member in Parliament, according to Rule 147(2)(d).


***

Europarty in breach of f(o)unding principles

Title XI of the Rules of Procedure deal with the relations with Europarties, officially political parties at European level (Rules 198 to 200).

According to Rule 200(1) the Conference of Presidents engages in an exchange of views ahead of a possible decision to refer to the committee responsible the question whether or not a political party at European level is continuing to observe (in particular in its programme and in its activities) the principles upon which the European Union is founded, namely the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law.


***

Accountability

Again we see a positive commitment to openness and transparency. The minutes of the Conference of Presidents are distributed to all MEPs.

The minutes are ‘accessible to the public’, but the meaning of that is unclear. My meager efforts to locate these and other internal documents of the European Parliament on its web pages have come to naught:


Rule 28 Accountability of the Bureau and the Conference of Presidents

1. The minutes of the Bureau and the Conference of Presidents shall be translated into the official languages, printed and distributed to all Members of Parliament and shall be accessible to the public, unless the Bureau or the Conference of Presidents exceptionally, for reasons of confidentiality, as laid down in Article 4(1) to (4) of European Parliament and Council Regulation (EC) No 1049/2001, decides otherwise with regard to certain items of the minutes.

2. Any Member may ask questions related to the work of the Bureau, the Conference of Presidents and the Quaestors. Such questions shall be submitted to the President in writing and published in the Bulletin of Parliament within thirty days of tabling, together with the answers given.


***

Who are they?

There is a listing of the members of the Conference of Presidents on the following EP web page:

http://www.europarl.europa.eu/members/expert/otherBodies/search.do?body=1510&language=EN


1.
PÖTTERING, Hans-Gert President
2.
DAUL, Joseph Member
3.
SCHULZ, Martin Member
4.
WATSON, Graham Member
5.
CROWLEY, Brian Member
6.
MUSCARDINI, Cristiana Member
7.
FRASSONI, Monica Member
8.
COHN-BENDIT, Daniel Member
9.
WURTZ, Francis Member
10.
FARAGE, Nigel Member
11.
BELOHORSKÁ, Irena Member



***

The European Parliament should step up its efforts to inform the public of the internal aspects of its work.


Ralf Grahn

European Parliament: Bureau ─ spider in the web

Whether you wonder at MEPs’ expenses or the funding debacle of Libertas, the spider in the web is the Bureau of the European Parliament.


***

We have seen that the European Parliament elects its President and its officers among its members (Article 197 TEC; Article 14(4) TFEU in the consolidated Lisbon Treaty).

We have also seen that the English treaty text refers to the constituent parts (officers), whereas other language versions point to the Bureau.

After looking at the different offices ─ President, fourteen Vice-Presidents and five (now six) Quaestors ─ we turn to the internal ruling body of the European Parliament: the Bureau.




***

Composition of the Bureau

Elected for two and a half years (Rule 16) the President and the fourteen Vice-Presidents automatically form the Bureau, with the Quaestors in an advisory capacity; Rule 21 of the European Parliament’s Rules of Procedure (16th edition, October 2008):


Rule 21 Composition of the Bureau

1. The Bureau shall consist of the President and the fourteen Vice-Presidents of Parliament.

2. The Quaestors shall be members of the Bureau in an advisory capacity.

3. Should voting in the Bureau result in a tie, the President shall have a casting vote.


***

Duties of the Bureau

In the internal life of the European Parliament, the Bureau is the spider in the web. Finances, organisation, administration, members’ issues, personnel as well as funding for Europarties and their political foundations are either regulated or decided by the Bureau, as we see from Rule 22:


Rule 22 Duties of the Bureau

1. The Bureau shall carry out the duties assigned to it under the Rules of Procedure.

2. The Bureau shall take financial, organisational and administrative decisions on matters concerning Members and the internal organisation of Parliament, its Secretariat and its bodies.

3. The Bureau shall take decisions on matters relating to the conduct of sittings.

(Official explanation: The term 'conduct of sittings' includes the matter of the conduct of Members within all of Parliament's premises.)

4. The Bureau shall adopt the provisions referred to in Rule 31 concerning non-attached Members.

5. The Bureau shall decide the establishment plan of the Secretariat and lay down regulations relating to the administrative and financial situation of officials and other servants.

6. The Bureau shall draw up Parliament's preliminary draft estimates.

7. The Bureau shall adopt the guidelines for the Quaestors pursuant to Rule 25.

8. The Bureau shall be the authority responsible for authorising meetings of committees away from the usual places of work, hearings and study and fact-finding journeys by rapporteurs.

Where such meetings are authorised, the language arrangements shall be determined on the basis of the official languages used and requested by the members and substitutes of the committee concerned.

The same shall apply in the case of the delegations, except where the members and substitutes concerned agree otherwise.

9. The Bureau shall appoint the Secretary-General pursuant to Rule 197.

10. The Bureau shall lay down the implementing rules relating to European Parliament and Council Regulation (EC) No 2004/2003 on the regulations governing political parties at European level and the rules regarding their funding and shall, in implementing that Regulation, assume the tasks conferred upon it by these Rules of Procedure.

11. The President and/or the Bureau may entrust one or more members of the Bureau with general or specific tasks lying within the competence of the President and/or the Bureau. At the same time the ways and means of carrying them out shall be laid down.

12. When a new Parliament is elected, the outgoing Bureau shall remain in office until the first sitting of the new Parliament.


***

Who are they?

Who are the ones responsible for the orderly and savoury conduct of EP affairs? Take the rules on MEPs’ expenses, the controls put in place, corrective measures and information to the public. The Bureau is the linchpin.


You can find the composition of the Bureau on the web pages of the European Parliament at:

http://www.europarl.europa.eu/members/expert/otherBodies/search.do?body=2370&language=EN



1.
PÖTTERING, Hans-Gert President
2.
KRATSA-TSAGAROPOULOU, Rodi Vice-President
3.
VIDAL-QUADRAS, Alejo Vice-President
4.
ONESTA, Gérard Vice-President
5.
McMILLAN-SCOTT, Edward Vice-President
6.
MAURO, Mario Vice-President
7.
MARTÍNEZ MARTÍNEZ, Miguel Angel Vice-President
8.
COCILOVO, Luigi Vice-President
9.
ROTHE, Mechtild Vice-President
10.
MORGANTINI, Luisa Vice-President
11.
ROURE, Martine Vice-President
12.
dos SANTOS, Manuel António Vice-President
13.
WALLIS, Diana Vice-President
14.
SIWIEC, Marek Vice-President
15.
BIELAN, Adam Vice-President
16.
NICHOLSON, James Quaestor
17.
LULLING, Astrid Quaestor
18.
DE VITS, Mia Quaestor
19.
FRIEDRICH, Ingo Quaestor
20.
FAZAKAS, Szabolcs Quaestor
21.
MULDER, Jan Quaestor


***

Language arrangements

The Rules of Procedure mention a number of specific tasks for the Bureau. All documents of the European Parliament are drawn up in the official languages and the speeches of MEPs are interpreted simultaneously into the other official languages and other languages the Bureau may decide . Interpretation is provided in committees according to wishes of members. If committees or delegations meet outside the EP, the language arrangements can be more flexible, but in case of disagreement the decision is taken by the Bureau (Rule 138).

The Bureau recommends the abolishment or extension of provisional language arrangements (Article 139).


***

Serious misconduct

The President rules on penalties for MEPs guilty of serious misconduct (Rule 147), but the member concerned can lodge an internal appeal to the Bureau (Rule 148).


***

Funding of Europarties and their foundations

The 2009 EU budget for the European Parliament contains non-negligible funds for political parties at European level (10.9 million euros) and their foundations (7.0 million euros).

The main provisions have been laid down by Regulation (EC) No 2004/2003 of the European Parliament and of the Council of 4 November 2003 on the regulations governing political parties at European level and the rules regarding their funding, originally published OJEU 15.11.2003 L 297/1, but amended by Regulation 1524/2007, so this is a link to the consolidated version (of 27 December 2007):

http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CONSLEG:2003R2004:20071227:EN:PDF


More detailed rules were issued by the Decision of the Bureau of the European Parliament of 29 March 2004 laying down the procedures for implementing Regulation (EC) No 2004/2003 of the European Parliament and of the Council on the Regulations governing political parties at European level and the rules regarding their funding (OJEU 12.6.2004 C 155/1).
There is a second entry in the Official Journal OJEU 2008 C 252/1, but it was published in the C series, so it should not be an amending decision, only republication for informational purposes:

Decision of the Bureau of the European Parliament of 29 March 2004 laying down the procedures for implementing Regulation (EC) No 2004/2003 of the European Parliament and of the Council on the regulations governing political parties at European level and the rules regarding their funding,
OJEU 3.10.2008 C 252/1.

Anyway, there are the hoops to jump through and the forms to fill out for the political parties and foundations concerned.

As we see, the Decision has been made by the Bureau.


***

Deciding on funding for Europarties

After the provisions on the funding system and its implementation, the EP’s Rules of Procedure regulate the concrete decision making on funds to be distributed to the European level parties and their foundations:


Rule 199 Powers and responsibilities of the Bureau

1. The Bureau shall take a decision on any application for funding submitted by a political party at European level and on the distribution of appropriations amongst the beneficiary political parties. It shall draw up a list of the beneficiaries and of the amounts allocated.

2. The Bureau shall decide whether or not to suspend or reduce funding and to recover amounts which have been wrongly paid.

3. After the end of the budget year the Bureau shall approve the beneficiary political party’s final activity report and final financial statement.

4. Under the terms and conditions laid down in European Parliament and Council Regulation (EC) No 2004/2003 the Bureau may grant technical assistance to political parties at European level in accordance with their proposals. The Bureau may delegate specific types of decisions to grant technical assistance to the Secretary- General.

5. In all the cases set out in the above paragraphs the Bureau shall act on the basis of a proposal from the Secretary-General. Except in the cases set out in paragraphs 1 and 4 the Bureau shall, before taking a decision, hear the representatives of the political party concerned. The Bureau may at any time consult the Conference of Presidents.

6. Where Parliament - following verification - establishes that a political party at European level has ceased to observe the principles of liberty, democracy, respect for human rights and fundamental freedoms and the rule of law, the Bureau shall decide that that political party shall be excluded from funding.


***

Libertas controversy

As far as we know from statements to the media, the potential pan-European political party Libertas has fallen foul of these regulations, which its chairman Declan Ganley has interpreted as a conspiracy against Libertas.

In principle, Libertas’ application for status and funds has failed, if I understand correctly, but the Bureau has mandated the EP’s legal services to consider if Libertas should have fulfilled the requirements by the dead-line for the application (1 November 2008) or if irregular or defected “representatives” can be replaced by new ones, which Ganley has offered to do.


***

Budget estimates

The Bureau draws up the preliminary draft estimates of the Euroepan Parliament on the basis of a report by the Secretary-General (Rule 73).


***

Accountability and questions

We have seen that the Bureau has a crucial role in questions of utmost importance to the conduct of the MEPs and the handling of party funding. Therefore the openness, transparency and accountability of the Bureau towards the public are significant.

Rule 28 of the EP’s Rules of Procedure looks promising:


Rule 28 Accountability of the Bureau and the Conference of Presidents

1. The minutes of the Bureau and the Conference of Presidents shall be translated into the official languages, printed and distributed to all Members of Parliament and shall be accessible to the public, unless the Bureau or the Conference of Presidents exceptionally, for reasons of confidentiality, as laid down in Article 4(1) to (4) of European Parliament and Council Regulation (EC) No 1049/2001, decides otherwise with regard to certain items of the minutes.

2. Any Member may ask questions related to the work of the Bureau, the Conference of Presidents and the Quaestors. Such questions shall be submitted to the President in writing and published in the Bulletin of Parliament within thirty days of tabling, together with the answers given.


***

Accessibility?

After navigating a fair number of pages on the European Parliament website, I am less certain if the European Parliament and I understand the same thing when we employ the term ‘accessible’.

By ‘accessible’ I mean information easily found, but I have failed to locate the decisions of the Bureau.

Based on earlier posts and this one I have come across a few areas, where I think that the European Parliament should step up its efforts to inform the public.

The European Parliament should post all the regulations concerning the European election procedures visibly (both permanently and on its election web pages).

The European Parliament’s decisions concerning MEPs’ allowances, control and the deliberate suppression of information including audit reports have been deplorable. The Bureau is the main responsible for the harm done to the EP’s reputation.

The Bureau’s minutes should be posted visbly on the EP’s web pages.

This includes decisions and documentation with regard to the Libertas funding controversy.



Ralf Grahn

European Parliament: Are the Quaestors doing their job?

After looking at the rules on the Quaestors of the European Parliament and failing to find more exact guidelines on their duties, we have to turn to sources outside the EP to assess the accountability and probity of this important institution and the effectiveness of its officers.

Times Online features the findings of an audit report, sadly leaked instead of being published by the EP, which is less than flattering for members of the European Parliament (MEPs).

‘Secret report reveals how MEPs make millions’ was published 22 February 2009, and it recalls the earlier instance of non-publication we have discussed on this blog:

http://www.timesonline.co.uk/tol/news/politics/article5780750.ece


My two words of advice to the European Parliament are: Come clean!



Ralf Grahn

European Parliament: Quaestors

After the blog posts on the President of the European Parliament and the fourteen Vice-Presidents, we turn to the five Quaestors (or six until the next Parliament).

The deliberate choice of an ancient Roman title for these EP officers invites us to take a look at what these earlier role models were up to.

The Wikipedia article Quaestor starts by telling us that Quaestor is a type of public official. In the Roman Republic a quaestor was an elected official who supervised the treasury and the financial affairs of the state, its armies and its officers.

For more information, go to:

http://en.wikipedia.org/wiki/Quaestor


***

Electing Quaestors

The five Quaestors are elected by secret ballot (Rule 12) for two and a half years (Rule 16), by the same procedure as the Vice-Presidents:


Rule 15 Election of Quaestors

After the election of the Vice-Presidents, Parliament shall elect five Quaestors.

The Quaestors shall be elected by the same procedure as the Vice-Presidents.

Notwithstanding the provisions of the first paragraph, for the period from January 2007 to July 2009 Parliament shall elect six Quaestors.


***

Duties of Quaestors

The duties of the Quaestors are laid down generally in Rule 25:


Rule 25 Duties of the Quaestors

The Quaestors shall be responsible for administrative and financial matters directly concerning Members, pursuant to guidelines laid down by the Bureau.


***


Financial interests

The Quaestors keep a record of the MEPs’ declarations of professional activities and financial interests, as laid down in Rule 9(1) and Annex I


***


Bureau meetings

The Quaestors form part of the Bureau in an advisory capacity, according to Rule 21(2), and thus they participate in the duties of the Bureau, mentioned in Rule 22.



***

Passes for lobbyists

Under Rule 9(4) and Annex IX the Quaestors issue passes to registered lobbyists.


***

Members’ questions to Quaestors


MEPs can ask questions of Questors and other officers according to Rule 28(2):

2. Any Member may ask questions related to the work of the Bureau, the Conference of Presidents and the Quaestors. Such questions shall be submitted to the President in writing and published in the Bulletin of Parliament within thirty days of tabling, together with the answers given.


***

Accessible information?

According to the EP Rules of Procedure, Rule 28(1), the minutes of the Bureau and the Conference of Presidents shall be translated into the official languages, printed and distributed to all Members of Parliament and shall be accessible to the public, unless the Bureau or the Conference of Presidents exceptionally, for reasons of confidentiality, as laid down in Article 4(1) to (4) of European Parliament and Council Regulation (EC) No 1049/2001, decides otherwise with regard to certain items of the minutes.

*

I am not quite sure about the accessibility of this information. I found a list of members of the Bureau, but failed to find other detailed information such as its minutes. I failed to find other Bureau guidelines to the Quaestors than those mentioned above.

What does the European Parliament mean by accessible to the public?



Ralf Grahn

European Parliament: Vice-Presidents

In addition to the rare appearances of the oldest member (Rule 11) and the President we looked at earlier, Chapter 2 of the European Parliament’s Rules of Procedure mentions the following officers: Vice-Presidents and Quaestors.

Rule 14 provides for the election of fourteen Vice-Presidents after the election of the President and his or her opening address.

(The official explanation added to Rule 14(1) allows nominations between the ballots: Although this Rule, unlike Rule 13(1), does not expressly provide for new nominations to be introduced between ballots during the election of Vice-Presidents, such action is permissible because Parliament, being a sovereign body, must be able to consider all possible candidates, especially since the absence of such an option might impede the smooth running of the election.)


The EP Rules of Procedure, 16th edition, October 2008, are available here:

http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//NONSGML+RULES-EP+20081022+0+DOC+PDF+V0//EN&language=EN



***

Electing the Vice-Presidents

The election procedure is laid down in Rule 14:


Rule 14 Election of Vice-Presidents

1. The Vice-Presidents shall then be elected on a single ballot paper. Those who on the first ballot, up to the number of fourteen, obtain an absolute majority of the votes cast shall be declared elected in the numerical order of their votes. Should the number of candidates elected be less than the number of seats to be filled, a second ballot shall be held under the same conditions to fill the remaining seats. Should a third ballot be necessary, a relative majority shall suffice for election to the remaining seats. In the event of a tie the eldest candidates shall be declared elected.

2. Subject to the provisions of Rule 17(1), the Vice-Presidents shall take precedence in the order in which they were elected and, in the event of a tie, by age.

Where they are not elected by secret ballot, the order in which their names are read out to the House by the President shall determine the order of precedence.


***

Vacancies

Rule 14(2) relates the precedence of officers to Rule 17(1) on offices becoming vacant:


Rule 17 Vacancies

1. Should it be necessary for the President, a Vice-President or a Quaestor to be replaced, the successor shall be elected in accordance with the above rules.

A newly elected Vice-President shall take the place of the predecessor in the order of precedence.

2. Should the President's seat become vacant, the first Vice-President shall act as President until a new President is elected.


***


The duties of the Vice-Presidents, in order of precedenc, are laid down in Rule 20:


Rule 20 Duties of the Vice-Presidents

1. Should the President be absent or unable to discharge his duties, or wish to take part in a debate pursuant to Rule 19(3), he shall be replaced by one of the Vice-Presidents pursuant to Rule 14(2).

2. The Vice-Presidents shall also carry out the duties conferred upon them under Rules 22, 24(3) and 64(3).

3. The President may delegate to the Vice-Presidents any duties such as representing Parliament at specific ceremonies or acts. In particular, the President may designate a Vice-President to take charge of the responsibilities conferred on the President in Rules 109(3) and 110(2).


***

Chairman ad hoc

In addition to the general rule that the President is replaced by a Vice-President if he is absent or unable to discharge his duties, there are a number of specific tasks which can be allotted to Vice-Presidents.

Should the President abandon his role as chairman of the plenary debate to engage in the contents of an issue, he would be replaced by a Vice-President until the end of the debate according to Rule 19(3).


***

Bureau

The Vice-Presidents are members of the Bureau, and Rule 22 refers to the duties of the Bureau, which regulates the internal work of the European Parliament.


***

Conference of Presidents

Rule 24(3) deals with the Conference of Presidents, which cooperates with the other EU institutions with regard to legislative planning and relations with national parliaments.


Rule 24(3):

3. The Conference of Presidents shall be the authority responsible for matters relating to relations with the other institutions and bodies of the European Union and with the national parliaments of Member States. The Bureau shall name two Vice- Presidents who shall be entrusted with the implementation of the relations with national parliaments. They shall report back regularly to the Conference of Presidents on their activities in this regard.


***

Conciliation Committee

When the European Parliament and the Council try to reach agreement on a legislative proposal, delegations from these institutions meet in a Conciliation Committee. Rule 64(3) lays down that three Vice-Presidents are appointed to the shifting EP delegation as permanent members for twelve months.


***

Ruling on Questions

The President can delegate to a Vice-President the ruling on the admissibility and order of Questions put to the Commission and the Council at Question Time, according to Rule 109(3).


***

Written questions

The President can designate a Vice-President to rule on the admissibility of written questions to the Council or the Commission, according to Rule 110(2).


***

Comment

The European Parliament is still excluded from or in an inferior position with regard to a number of crucial areas and issues relating to the security and prosperity of European Union citizens, but the EP has become an important co-legislator and the Lisbon Treaty would improve the legitimacy of EU legislation.

In its areas of competence, the European Parliament is an important player, setting standards for nearly 500 million Europeans. Lobbyists have discovered the EP’s importance ages ago, but public awareness remains low. Both mainstream media and citizens seem to be stumped by the complexity European Union decision-making.

Every organisation needs an internal machinery to work. The Vice-Presidents of the directly elected European Parliament form part of the backbone of an institution of growing importance. Some day even the European voters may realise it.


Ralf Grahn

European Parliament: Officers or Bureau?

In addition to its President, the European Parliament elects ‘its officers’ from among its members.

Interestingly, the treaty in English seems to refer to a different Chapter of the Rules of Procedure than other language versions.

It is hard to see that this difference could lead to harmful results in practice, but perhaps the European Parliament helps to bring the English text of the treaty in line with the other language versions next time around.


***


Treaty provisions

The first paragraph of the current Article 197 of the Treaty establishing the European Community (TEC) provides that:

The European Parliament shall elect its President and its officers from among its Members.


In the Treaty of Lisbon this paragraph is formally deleted when Article 197 TEC is amended; formally because exactly the same wording appears first in Article 9a(4) of the Treaty on European Union in the original version and then as Article 14(4) TEU in the consolidated version of the Lisbon Treaty.


***

Officers?

The generic English term ‘officers’ seems to leave everything to the European Parliament, but interestingly other language versions give the impression that the drafters had something a bit more specific in mind.

Here are six language versions for comparison, chosen for the sake of convenience from Article 14(4) of the Treaty on European Union as published in the consolidated version of the Treaty of Lisbon (OJEU 9.5.2008 C 115):



Spanish

4. El Parlamento Europeo elegirá a su Presidente y a la Mesa de entre sus diputados.


German

(4) Das Europäische Parlament wählt aus seiner Mitte seinen Präsidenten und sein Präsidium.


English

4. The European Parliament shall elect its President and its officers from among its members.


French

4. Le Parlement européen élit parmi ses membres son président et son bureau.


Finnish

4. Euroopan parlamentti valitsee jäsentensä keskuudesta puhemiehen ja puhemiehistön.


Swedish

4. Europaparlamentet ska välja sin ordförande och sitt presidium bland sina ledamöter.



***


EP Rules of Procedure

Terminology


Chapter 2 of the European Parliament’s Rules of Procedure (16th edition, October 2008) is called Officers of Parliament.

In Spanish the Chapter heading is ‘De los mandatos’, in German ‘Amtsträger des Parlaments’, in French ‘Mandats’, in Finnish ‘Parlamentin toimihenkilöt’ and in Swedish ‘Uppdrag’.


In Spanish Chapter 3 is called ‘De los órganos y funciones’, in German ‘Organe und Aufgaben’, in French ‘Organes et fonctions’, in Finnish ‘Parlamentin elimet ja niiden tehtävät’, in Swedish ‘Organ och uppgifter’.

In five of the sampled languages the treaty provisions, Article 197 TEC and Article 14 TEU, refer to the “praesidium”, “Bureau” or words to that effect in Chapter 3. Only the English treaty text, which employs the word ‘officers’ seems to refer to Chapter 2.

It is hard to imagine any harmful consequences arising out of this, because the ‘officers’ form the ‘Bureau’, but five treaty versions are consistent in what they refer to, whereas the English treaty text is not:


Spanish

Articulo 21 Composición de la Mesa
Articulo 22 Funciones de la Mesa


German

Artikel 21 Zusammensetzung des Präsidiums
Artikel 22 Aufgaben des Präsidiums



English

Rule 21 Composition of the Bureau
Rule 22 Duties of the Bureau



French

Article 21 Composition du Bureau
Article 22 Fonctions du Bureau


Finnish

21 artikla Puhemiehistön kokoonpano
22 artikla Puhemiehistön tehtävät


Swedish

Artikel 21 Presidiets sammansättning
Artikel 22 Presidiets uppgifter


***

After this linguistic detour we are going to look at the officers and the composition of the Bureau.


Ralf Grahn

European Parliament: President

Ahead of the European elections between 4 and 7 June 2009 there are people who want to know more about the European Parliament than short and simple messages convey.

We take a closer look at the internal organisation of the European Parliament, starting with its President.


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Treaty provisions

The first paragraph of the current Article 197 of the Treaty establishing the European Community (TEC) provides that:

The European Parliament shall elect its President and its officers from among its Members.


In the Treaty of Lisbon this paragraph is formally deleted when amending Article 197 TEC; formally because exactly the same wording appears in. first Article 9a(4) of the Treaty on European Union in the original version, and then as Article 14(4) TEU in the consolidated version of the Lisbon Treaty.


***

Autonomy

The treaty provisions express that the European Parliament sets its internal rules autonomously, within the limits of the treaties.

This offers the European Parliament wide discretion with regard to its internal organisation.

The treaties (rather self-evidently) make it clear that the European Parliament has to have a President.


***

President or Speaker?

Less obvious but given is that this leading figure is called President in the English version, not for instance Speaker.

If we look at a few language versions of Article 14(4) TEU, we get the following results:


Spanish

4. El Parlamento Europeo elegirá a su Presidente y a la Mesa de entre sus diputados.


German

(4) Das Europäische Parlament wählt aus seiner Mitte seinen Präsidenten und sein Präsidium.


English

4. The European Parliament shall elect its President and its officers from among its members.


French

4. Le Parlement européen élit parmi ses membres son président et son bureau.


Finnish

4. Euroopan parlamentti valitsee jäsentensä keskuudesta puhemiehen ja puhemiehistön.


Swedish

4. Europaparlamentet ska välja sin ordförande och sitt presidium bland sina ledamöter.



***

Three of the versions, two belonging to founding member states, use comparable expressions domestically and with regard to the European Parliament.

The French Assemblée nationale (National Assembly) has a Président, and the European Parliament uses the same term. The Deutscher Bundestag (Germany’s Parliament) has a Bundestagspräsident, so the national terminology and the EP terms are in line. The lower house in Spain (Congreso de los Diputados) has a Presidente.

None of the other three were among the initial member states of the ECSC and the EEC. There are small variations in the terms employed:

The UK House of Commons is led by the Speaker, but the EP has a President.

The Finnish version uses ’puhemies’ meaning Speaker, in line with national parliamentary custom.

The Swedish treaty version has opted for ‘ordförande’, the general term for Chair(man), although the Swedish Parliament has a ‘talman’ (Speaker).


***

EP Rules of Procedure

The EP’s Rules of Procedure (16th edition, October 2008) have more on the President of the European Parliament:

http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//NONSGML+RULES-EP+20081022+0+DOC+PDF+V0//EN&language=EN



According to Rule 11(1), at the first sitting after the European elections and any other sitting held for the purpose of electing the President and the Bureau, the oldest MEP present takes the Chair until the President has been elected.


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Nominations


Rule 12 provides that the President has to be nominated by a political group or by at least forty members. The President is elected by secret ballot.

The rule favours a package to be negotiated in advance, because the second paragraph expresses the wish to achieve a fair representation of member states and political views when electing the President, Vice-Presidents and Quaestors:


Rule 12 Nominations and general provisions

1. The President, Vice-Presidents and Quaestors shall be elected by secret ballot, in accordance with the provisions of Rule 162. Nominations shall be with consent. They may only be made by a political group or by at least forty Members. However, if the number of nominations does not exceed the number of seats to be filled, the candidates may be elected by acclamation.

2. In the election of the President, Vice-Presidents and Quaestors, account should be taken of the need to ensure an overall fair representation of Member States and political views.


***

Election of President

Rule 13 gives more details about the election of the President:


Rule 13 Election of President - opening address

1. The President shall be elected first. Nominations shall be handed before each ballot to the oldest Member, who shall announce them to Parliament. If after three ballots no candidate has obtained an absolute majority of the votes cast, the fourth ballot shall be confined to the two Members who have obtained the highest number of votes in the third ballot. In the event of a tie the elder candidate shall be declared elected.

2. As soon as the President has been elected, the oldest Member shall vacate the Chair. Only the elected President may deliver an opening address.


***

Term of office

The term of office of the President is two and a half years (Rule 16), meaning that the EP normally elects a President twice during its five year term.


***


Duties of the President

The President directs the activities of the European Parliament, presides over the proceedings and represents the Parliament:


Rule 19 Duties of the President

1. The President shall direct all the activities of Parliament and its bodies under the conditions laid down in these Rules and shall enjoy all the powers necessary to preside over the proceedings of Parliament and to ensure that they are properly conducted.


2. The duties of the President shall be to open, suspend and close sittings; to rule on the admissibility of amendments, on questions to the Council and Commission, and on the conformity of reports with these Rules; to ensure observance of these Rules, maintain order, call upon speakers, close debates, put matters to the vote and announce the results of votes; and to refer to committees any communications that concern them.

3. The President may speak in a debate only to sum up or to call speakers to order. Should he wish to take part in a debate, he shall vacate the Chair and shall not reoccupy it until the debate is over.

4. Parliament shall be represented in international relations, on ceremonial occasions and in administrative, legal or financial matters by the President, who may delegate these powers.



(Explanation: Rule 19(1) can be interpreted as meaning that the powers conferred by that Rule include the power to call an end to the excessive use of motions such as points of order, procedural motions, explanations of vote and requests for separate, split or roll-call votes where the President is convinced that these are manifestly intended to cause and will result in a prolonged and serious obstruction of the procedures of the House or the rights of other Members.

The powers conferred by this Rule include the power to put texts to the vote in an order other than that set out in the document to be voted on. By analogy with the provisions of Rule 155(7), the President may seek the agreement of Parliament before doing so.)


***

In coming posts we look at the EP officers.



Ralf Grahn

European Parliament: Internal organisation and relations between the institutions

Both the existing treaties and the EU Treaty of Lisbon contain basic provisions on the internal organisation of the European Parliament and on the EP’s relations with the other institutions: the Commission and the Council.

In this blog post we present the treaty changes, but ahead of the European elections in June 2009 we will then continue by taking a closer look at the detailed provisions in a number of posts.


***

Current treaty

Article 197 of the Treaty establishing the European Community (TEC) contains bare bones provisions on two areas concerning the European Parliament:

a) internal organisation, and
b) relations with the Commission and the Council.

The text of Article 197 TEC is from the latest consolidated version of the treaties, published in the Official Journal of the European Union (OJEU) 29.12.2006 C 321 E/134:


Article 197 TEC

The European Parliament shall elect its President and its officers from among its Members.

Members of the Commission may attend all meetings and shall, at their request, be heard on behalf of the Commission.

The Commission shall reply orally or in writing to questions put to it by the European Parliament or by its Members.

The Council shall be heard by the European Parliament in accordance with the conditions laid down by the Council in its Rules of Procedure.


***

Original Lisbon Treaty (ToL)

Article 2, point 185 of the original Treaty of Lisbon formally deleted the first paragraph of Article 197 TEC on the internal organisation of the European Parliament and amended two of the three other paragraphs (OJEU 17.12.2007 C 306/102):


185) Article 197 shall be amended as follows:

(a) the first paragraph shall be deleted;

(b) the second paragraph shall be replaced by the following:

‘The Commission may attend all the meetings and shall, at its request, be heard.’;

(c) the fourth paragraph shall be replaced by the following:

‘The European Council and the Council shall be heard by the European Parliament in accordance with the conditions laid down in the Rules of Procedure of the European Council and those of the Council.’.


***

I used the words formally deleted with regard to the first paragraph of Article 197 TEC, because if we look at Article 9a(4) of the Treaty on European Union (TEU) we find the following text (OJEU page 17):


4. The European Parliament shall elect its President and its officers from among its members.’.


***



Consolidated Lisbon Treaty

This means that we have two strands to follow in the consolidated Treaty of Lisbon (OJEU 9.5.2008 C 115).

The main provisions on the institutions are located in Title III of the Treaty on European Union (TEU) and Article 9a TEU (ToL) has been renumbered Article 14 TEU in the consolidated version (OJEU page 22 to 23). The whole Article is presented here as background, although the fourth paragraph will be our point of departure:


Article 14 TEU

1. The European Parliament shall, jointly with the Council, exercise legislative and budgetary functions. It shall exercise functions of political control and consultation as laid down in the Treaties. It shall elect the President of the Commission.

2. The European Parliament shall be composed of representatives of the Union's citizens. They shall not exceed seven hundred and fifty in number, plus the President. Representation of citizens shall be degressively proportional, with a minimum threshold of six members per Member State. No Member State shall be allocated more than ninety-six seats.

The European Council shall adopt by unanimity, on the initiative of the European Parliament and with its consent, a decision establishing the composition of the European Parliament, respecting the principles referred to in the first subparagraph.

3. The members of the European Parliament shall be elected for a term of five years by direct universal suffrage in a free and secret ballot.

4. The European Parliament shall elect its President and its officers from among its members.


***

The European Parliament’s relations with the Commission and the Council remained in slightly amended form in Article 197 (ToL), which was renumbered Article 230 of the Treaty on the Functioning of the European Union (TFEU) in the consolidated Lisbon Treaty (OJEU page 151):


Article 230 TFEU
(ex Article 197, second, third and fourth paragraph, TEC)

The Commission may attend all the meetings and shall, at its request, be heard.

The Commission shall reply orally or in writing to questions put to it by the European Parliament or by its Members.

The European Council and the Council shall be heard by the European Parliament in accordance with the conditions laid down in the Rules of Procedure of the European Council and those of the Council.


***

After this general presentation of the changes brought about by the Lisbon Treaty we are going to dedicate a few blog posts to the internal organisation of the European Parliament before we turn to the inter-institutional relations.


Ralf Grahn

European Parliament session

The legislative term of the European Parliament is divided into annual sessions, part-sessions and sittings, but the internal autonomy of the EP does not extend to where it sits.


***

Current treaty

Article 196 of the Treaty establishing the European Community (TEC) in force offers us information about the sessions of the European Parliament. The annual session meets on the second Tuesday in March. Extraordinary sessions can be convened (latest consolidated version of the treaties, OJEU 29.12.2006 C 321 E/134):


Article 196 TEC

The European Parliament shall hold an annual session. It shall meet, without requiring to be convened, on the second Tuesday in March.

The European Parliament may meet in extraordinary session at the request of a majority of its Members or at the request of the Council or of the Commission.


***

Original Lisbon Treaty

Article 2, point 184 of the original Treaty of Lisbon makes two small amendments to the wording of Article 196 TEC (OJEU 17.12.2007 C 306/102):


184) In the second paragraph of Article 196, the words ‘in extraordinary session’ shall be replaced by ‘in extraordinary part-session’ and the words ‘of its Members’ shall be replaced by ‘of its component members’.


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Consolidated Lisbon Treaty

When extraordinary part-session and component members have been inserted and the provision renumbered, the consolidated (readable) Lisbon Treaty version of Article 229 of the Treaty on the Functioning of the European Union (TFEU) looks like this (OJEU 9.5.2008 C 115/151):


Article 229 TFEU
(ex Article 196 TEC)

The European Parliament shall hold an annual session. It shall meet, without requiring to be convened, on the second Tuesday in March.

The European Parliament may meet in extraordinary part-session at the request of a majority of its component Members or at the request of the Council or of the Commission.


***

Comment

After the amendments Article 229 TFEU is identical with Article III-336 of the Constitutional Treaty. Component members does not alter the meaning, although it makes it clearer for the reader. Part-session takes into account that the annual session in practice lasts the whole year.

At the first glance a provision like this may look dull or even meaningless, but it is significant for the orderly conduct of parliamentary business and has connections with other provisions.


***

EP Rules of Procedure

Internally the European Parliament has arranged for the conduct of business in its Rules of Procedure (16th edition, October 2008):


http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//NONSGML+RULES-EP+20081022+0+DOC+PDF+V0//EN&language=EN


Title VI Sessions starts with Chapter 1 Sessions of Parliament, comprising Rules 126 to 129:


TITLE VI SESSIONS

CHAPTER 1 SESSIONS OF PARLIAMENT


Rule 126 Parliamentary term, sessions, part-sessions, sittings

1. The parliamentary term shall run concurrently with the term of office of Members provided for in the Act of 20 September 1976.

2. The session shall be the annual period prescribed by the Act and the Treaties.

3. The part-session shall be the meeting of Parliament convened as a rule each month and subdivided into daily sittings.


(Explanation: Sittings of Parliament held on the same day shall be deemed to be a single sitting.)


Rule 127 Convening of Parliament

1. Parliament shall meet, without requiring to be convened, on the second Tuesday in March each year and shall itself determine the duration of adjournments of the session.

2. Parliament shall, moreover, meet without requiring to be convened on the first Tuesday after expiry of an interval of one month from the end of the period referred to in Article 10(1) of the Act of 20 September 1976.

3. The Conference of Presidents, stating its reasons, may alter the duration of adjournments decided pursuant to paragraph 1 at least two weeks before the date previously fixed by Parliament for resuming the session; the date of resumption shall not, however, be postponed for more than two weeks.

4. Exceptionally, after consulting the Conference of Presidents, the President shall convene Parliament at the request of a majority of its component Members or at the request of the Commission or the Council.

Exceptionally, with the approval of the Conference of Presidents, the President may convene Parliament in cases of urgency.


Rule 128 Venue of sittings and meetings

1. Parliament shall hold its sittings and its committee meetings in accordance with the provisions of the Treaties.

Proposals for additional part-sessions in Brussels and any amendments thereto will require only a majority of the votes cast.

2. Any committee may decide to ask that one or more meetings be held elsewhere. Its request, with the reasons therefor, shall be made to the President, who shall place it before the Bureau. If the matter is urgent, the President may take the decision himself. Should the request be rejected by the Bureau or the President the reasons for the rejection shall be stated.


Rule 129 Attendance of Members at sittings

1. An attendance register shall be laid open for signature by Members at each sitting.

2. The names of Members present, as shown in the attendance register, shall be recorded in the minutes of each sitting.


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Traveling circus

The so called traveling circus is impractical for the members of the European Parliament, costly for taxpayers and bewildering for EU citizens.

It has been imposed by the member states at treaty level through ─ in the consolidated Lisbon Treaty ─ Protocol (No 6) on the location of the seats of the institutions and of certain bodies, offices, agencies and departments of the European Union (OJEU 9.5.2008 C 115/265).

Point (a) of the Sole Article dictates twelve monthly (part-)sessions to be held in Strasbourg:


(a) The European Parliament shall have its seat in Strasbourg where the 12 periods of monthly plenary sessions, including the budget session, shall be held. The periods of additional plenary sessions shall be held in Brussels. The committees of the European Parliament shall meet in Brussels. The General Secretariat of the European Parliament and its departments shall remain in Luxembourg.


***

Rational decision-making, the will of the MEPs or citizens’ initiatives do not count. As a treaty level provision Protocol No 6 can be changed only unanimously by the member states, one of which is France.

But a great victory for all those who extol the virtues of voluntary intergovernmental cooperation between free, independent and sovereign European states!

Outside the Strasbourg part-sessions the European Parliament convenes for so called mini-sessions in Brussels, where its committees meet and the Commission is located, as well as the Council.


***

Immunity


In the consolidated Lisbon Treaty Protocol (No 7) on the privileges and immunities of the European Union means that the year long annual session of the European Parliament protects the immunity of MEPs, unless waived by the EP:

Article 9
(ex Article 10)

During the sessions of the European Parliament, its Members shall enjoy:

(a) in the territory of their own State, the immunities accorded to members of their parliament;

(b) in the territory of any other Member State, immunity from any measure of detention and from legal proceedings.

Immunity shall likewise apply to Members while they are travelling to and from the place of meeting of the European Parliament.

Immunity cannot be claimed when a Member is found in the act of committing an offence and shall not prevent the European Parliament from exercising its right to waive the immunity of one of its Members.


***

Assessment of available information

Most of the information about the European Parliament seems to be available and fairly well ordered, but when the Rules of Procedure refer to the Act of 20 September 1976 (which leads to the amending 2002 decision) there are voids to fill.

Ahead of the European elections it is necessary for the European Parliament to upgrade the available, accessible and updated information about European electoral rules (however little there is to be proud of).



Ralf Grahn

Should the Czechs join the EEA?

Without the EU Council presidency the government and the president of the Czech Republic would have been less in the limelight. But unmercifully their position of pan-European responsibility has forced upon us the unedifying spectacle of wildly Europhobic president Vaclav Klaus campaigning against a Czech government slightly less vehement in its Euro-opposition.

I rest assured that these short six months will offer material for studies and teaching on public communications and public relations for years to come.

But the political question is, why join the wrong club?

If you only want free trade in a Europe without barriers, why take part in an evolving political union?

There is a totally respectable alternative: the European Economic Area (EEA), where Iceland, Liechtenstein and Norway share the benefits of the internal market with the EU member states, without the ‘burden’ of a common political project.



Ralf Grahn


P.S. There are additional reasons to strengthen the EEA. The enlargement project of the European Union has been running on autopilot without any meaningful discussion on the borders of Europe or engagement with public opinion. Even where both European credentials and public opinion would be in favour, it would be unwise for the European Union to expand without profound political reform. The EEA could be the right solution, until an effective, democratic and solidary EU is ready to accept new members.

Libertas: Foul or foul-up?

Libertas cries foul after losing European party status, reported EUbusiness and quoted a Libertas statement: "This case is a fine example of how anti-democratic the Brussels establishment can be."

http://www.eubusiness.com/news-eu/1235038622.9

Anti-democratic?

The lashing came as a reaction to the finding by the European Parliament Bureau that two of the signatures submitted by Libertas in their application for status and funding as a political party at European level were not valid.

Libertas did not have the required representation of elected politicians in at least seven member states. The European Parliament could hardly approve the application, could they?

The deadline for Europarty applicationas expired on 1 November 2008.

Should the European Parliament ignore the deadline and allow Libertas to dig up new representatives until they get it right?


Ralf Grahn

European Parliament: Ombudsman (II)

In this part we take a closer look at the Ombudsman below the treaty level.

Besides referring to the 2007 Annual Report of the European Ombudsman as an opportunity to learn more about the Ombudsman’s work, we use it as an example of the relatively few stages when the European Parliament deals with an own-initiative report.

We refer the regulations concerning the European Ombudsman’s work, the EP’s Rules of Procedure and the European Code of Good Administrative Behaviour as well as the current Ombudsman’s thoughts on transparency.


***

Web pages

If you are an EU citizen or resident or a legal person interested in lodging a complaint, or if your interest is academic, you can find the information you want on the web pages The European Ombudsman:

http://www.ombudsman.europa.eu/home.faces


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Annual Report and EP procedure

The latest Annual Report of the European Ombudsman is for the year 2007 (published 10 March 2008):

http://www.ombudsman.europa.eu/activities/annualreports.faces



In the European Parliament the committee responsible for petitions and relations with the European Ombudsman is the Committee on Petitions (PETI), mentioned in Article 194 TEC.

On 18 September 2008 the Committee on Petitions approved the own-initiative report by Dushana Zdravkova on the annual report on the European Ombudsman's activities in 2007, A6-0358/2008; procedure 2008/2158(INI).

The European Parliament approved the annual report by a non-legislative resolution on 23 October 2008, P6_TA(2008)0524, but found the tables of statistics confusing. (The vote was 465 to 1, with 7 abstentions.)

The EP noted, despite a rising proportion of admissible complaints, that only 16 per cent of the the complaints submitted were admissible. The EP therefore recommended an enhanced information campaign be conducted amongst European citizens designed to raise their awareness of the functions and competence of the European Ombudsman (or rather the limits).


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Charter of Fundamental Rights

The European Ombudsman is mentioned in the current Article 195 TEC and the future(?) Article 228 TFEU.

In addition, two provisions of the Charter of Fundamental Rights of the European Union, which has been declared politically binding, but would become legally binding on the entry into force of the Lisbon Treaty, concern the Ombudsman.

Article 43 reiterates the right to refer cases of maladministration to the European Ombudsman concerning the activities of the institutions, bodies, offices or agencies of the Union, with the exception of the Court of Justice of the European Union acting in its judicial role.


The other Charter provision, worth presenting here in full because at the centre of the European Ombudsman’s activities, is Article 41 on the right to good administration (OJEU 14.12.2007 C 303/10─11):


Article 41
Right to good administration

1. Every person has the right to have his or her affairs handled impartially, fairly and within a reasonable time by the institutions, bodies, offices and agencies of the Union.

2. This right includes:

(a) the right of every person to be heard, before any individual measure which would affect him or her adversely is taken;

(b) the right of every person to have access to his or her file, while respecting the legitimate interests of confidentiality and of professional and business secrecy;

(c) the obligation of the administration to give reasons for its decisions.

3. Every person has the right to have the Union make good any damage caused by its institutions or by its servants in the performance of their duties, in accordance with the general principles common to the laws of the Member States.

4. Every person may write to the institutions of the Union in one of the languages of the Treaties and must have an answer in the same language.


***


Ombudsman’s duties

The detailed rules referred to in Article 195(4) TEC (Article 228(4) TFEU) have been laid down by the EP in Decision 94/262/ECSC, EC, Euratom of 9 March 1994 on the regulations and general conditions governing the performance of the Ombudsman's duties, originally published OJ 4.5.1994 L 113/35. The Decision has been amended, so this link leads to the consolidated version (of 31 July 2008):

http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CONSLEG:1994D0262:20080731:EN:PDF

The provisions are relevant not only for the European Ombudsman when conducting his inquiries, but also for EU citizens and residents considering referring a complaint to him.


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EP Rules of Procedure

Articles 194 to 196 of the European Parliament’s Rules of Procedure (16th edition, October 2008) have further provisions on the appointment, activities and dismissal of the Ombudsman:

http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//NONSGML+RULES-EP+20081022+0+DOC+PDF+V0//EN&language=EN


TITLE IX OMBUDSMAN

Rule 194 Appointment of the Ombudsman

1. At the start of each parliamentary term, immediately after his election or in the cases referred to in paragraph 8, the President shall call for nominations for the office of Ombudsman and set a time limit for their submission. A notice calling for nominations shall be published in the Official Journal of the European Union.

2. Nominations must have the support of at least forty Members who are nationals of at least two Member States.

Each Member may support only one nomination.

Nominations shall include all the supporting documents needed to show conclusively that the nominee fulfils the conditions required by the Regulations on the Ombudsman.

3. Nominations shall be forwarded to the committee responsible, which may ask to hear the nominees.

Such hearings shall be open to all Members.

4. A list of admissible nominations in alphabetical order shall then be submitted to the vote of Parliament.

5. The vote shall be held by secret ballot on the basis of a majority of the votes cast.

If no candidate is elected after the first two ballots, only the two candidates obtaining the largest number of votes in the second ballot may continue to stand.

In the event of any tie the eldest candidate shall prevail.

6. Before opening the vote, the President shall ensure that at least half of Parliament's component Members are present.

7. The person appointed shall immediately be called upon to take an oath before the Court of Justice.

8. The Ombudsman shall exercise his duties until his successor takes office, except in the case of his death or dismissal.



Rule 195 Activities of the Ombudsman

1. The decision on the regulations and general conditions governing the performance of the Ombudsman's duties and the provisions implementing that decision as adopted by the Ombudsman are annexed for information to the Rules of Procedure.

2. The Ombudsman shall, in accordance with Article 3(6) and (7) of the above decision, inform Parliament of cases of maladministration, on which the committee responsible may draw up a report. He shall also, in accordance with Article 3(8) of the above decision, submit a report to Parliament at the end of each annual session on the outcome of his inquiries. The committee responsible shall draw up a report thereon which shall be submitted to Parliament for debate.

3. The Ombudsman may also inform the committee responsible at its request, or be heard by it on his own initiative.



Rule 196 Dismissal of the Ombudsman

1. One-tenth of Parliament's component Members may request the Ombudsman's dismissal if he no longer fulfils the conditions required for the performance of his duties or is guilty of serious misconduct.

2. The request shall be forwarded to the Ombudsman and to the committee responsible, which, if it decides by a majority of its members that the reasons are well-founded, shall submit a report to Parliament. If he so requests, the Ombudsman shall be heard before the report is put to the vote. Parliament shall, following a debate, take a decision by secret ballot.

3. Before opening the vote, the President shall ensure that half of Parliament's component Members are present.

4. If the vote is in favour of the Ombudsman's dismissal and he does not resign accordingly the President shall, at the latest by the part-session following that at which the vote was held, apply to the Court of Justice to have the Ombudsman dismissed with a request for a ruling to be given without delay.

Resignation by the Ombudsman shall terminate the procedure.


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The Decision 94/262 can also be found as Annex X to the EP Rules of Procedure.


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Code of Good Administration

The Ombudsman’s European Code of Good Administrative Behaviour was adopted in 2001 by the European Parliament, and it has been updated to take into account the Charter of Fundamental Rights.

The current edition dates from 2005, and its intention is to explain in detail what the Charter’s right to good administration should mean in practice. The Code is available here:

http://www.ombudsman.europa.eu/code/en/default.htm



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Diamandouros interview

On 18 February 2009 EurActiv published an interview with the European Ombudsman P. Nikiforos Diamandouros, who took over the job in 2003 after Jacob Söderman.

Under the heading’Swedes to prioritise transparency at EU helm’ Diamandouros shared his thoughts on the incoming Swedish EU Council presidency and on this week’s European Parliament committee report on transparency.

The European Ombudsman did his best to inform the public about the limits of his mandate, namely EU institutions and bodies: “The Ombudsman conceded that the "vast majority" of the 3,500-4000 complaints he receives each year from citizens are inadmissible, because they should be dealt with at national level.”

The interview is available here:

http://www.euractiv.com/en/pa/swedes-prioritise-transparency-eu-helm/article-179559







Ralf Grahn

European Parliament: Ombudsman (I)

This blog post looks at the watchdog of EU citizens, the Ombudsman, who investigates on his own initiative and on the basis of complaints. The Ombudsman is appointed by the European Parliament, but he acts independently.



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Current treaty

Article 195 of the Treaty establishing the European Community (TEC) provides for the appointment of an Ombudsman, who investigates instances of maladministration in the EC institutions and bodies, either on his own initiative or on the basis of complaints submitted to him by EU citizens, residents of legal persons.

In case of maladministration the Ombudsman reports to the European Parliament and the institution concerned. The activities of the Ombudsman are presented in an annual report.

The Ombudsman is appointed after the European elections by the European Parliament for its term of office.

The Ombudsman shall be completely independent in the performance of his duties (OJEU 29.12.2006 C 321 E/133─134):


Article 195 TEC

1. The European Parliament shall appoint an Ombudsman empowered to receive complaints from any citizen of the Union or any natural or legal person residing or having its registered office in a Member State concerning instances of maladministration in the activities of the Community institutions or bodies, with the exception of the Court of Justice and the Court of First Instance acting in their judicial role.

In accordance with his duties, the Ombudsman shall conduct inquiries for which he finds grounds, either on his own initiative or on the basis of complaints submitted to him direct or through a Member of the European Parliament, except where the alleged facts are or have been the subject of legal proceedings. Where the Ombudsman establishes an instance of maladministration, he shall refer the matter to the institution concerned, which shall have a period of three months in which to inform him of its views. The Ombudsman shall then forward a report to the European Parliament and the institution concerned. The person lodging the complaint shall be informed of the outcome of such inquiries.

The Ombudsman shall submit an annual report to the European Parliament on the outcome of his inquiries.

2. The Ombudsman shall be appointed after each election of the European Parliament for the duration of its term of office. The Ombudsman shall be eligible for reappointment.

The Ombudsman may be dismissed by the Court of Justice at the request of the European Parliament if he no longer fulfils the conditions required for the performance of his duties or if he is guilty of serious misconduct.

3. The Ombudsman shall be completely independent in the performance of his duties. In the performance of those duties he shall neither seek nor take instructions from any body. The Ombudsman may not, during his term of office, engage in any other occupation, whether gainful or not.

4. The European Parliament shall, after seeking an opinion from the Commission and with the approval of the Council acting by a qualified majority, lay down the regulations and general conditions governing the performance of the Ombudsman's duties.


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Original Lisbon Treaty

Article 2, point 183 of the original Treaty of Lisbon amended Article 195 TEC (OJEU 17.12.2007 C 306/102):



183) Article 195 shall be amended as follows:

(a) in the first subparagraph of paragraph 1, the words at the beginning ‘The European Parliament shall appoint an Ombudsman, empowered to receive complaints’ shall be replaced by ‘A European Ombudsman, elected by the European Parliament, shall be empowered to receive complaints’; in the last part of the sentence, the words ‘and the Court of First Instance acting in their judicial role’ shall be replaced by: ‘acting in its judicial role’ and the following final sentence shall be added: ‘He or she shall examine such complaints and report on them.’;

(b) in the first subparagraph of paragraph 2, the word ‘appointed’ shall be replaced by ‘elected’;

(c) in paragraph 3, the words ‘from any body’ shall be replaced by ‘from any Government, institution, body, office or entity’;

(d) in paragraph 4, the words ‘acting by means of regulations on its own initiative in accordance with a special legislative procedure’ shall be inserted after ‘The European Parliament’.


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Consolidated Lisbon Treaty

In the consolidated (readable) version of the Lisbon Treaty the renumbered provision becomes Article 228 of the Treaty on the Functioning of the European Union (TFEU), published OJEU 9.5.2008 C 115/130─131:


Article 228 TFEU
(ex Article 195 TEC)

1. A European Ombudsman, elected by the European Parliament, shall be empowered to receive complaints from any citizen of the Union or any natural or legal person residing or having its registered office in a Member State concerning instances of maladministration in the activities of the Union institutions, bodies, offices or agencies, with the exception of the Court of Justice of the European Union acting in its judicial role. He or she shall examine such complaints and report on them.

In accordance with his duties, the Ombudsman shall conduct inquiries for which he finds grounds, either on his own initiative or on the basis of complaints submitted to him direct or through a Member of the European Parliament, except where the alleged facts are or have been the subject of legal proceedings. Where the Ombudsman establishes an instance of maladministration, he shall refer the matter to the institution, body, office or agency concerned, which shall have a period of three months in which to inform him of its views. The Ombudsman shall then forward a report to the European Parliament and the institution, body, office or agency concerned. The person lodging the complaint shall be informed of the outcome of such inquiries.

The Ombudsman shall submit an annual report to the European Parliament on the outcome of his inquiries.

2. The Ombudsman shall be elected after each election of the European Parliament for the duration of its term of office. The Ombudsman shall be eligible for reappointment.

The Ombudsman may be dismissed by the Court of Justice at the request of the European Parliament if he no longer fulfils the conditions required for the performance of his duties or if he is guilty of serious misconduct.

3. The Ombudsman shall be completely independent in the performance of his duties. In the performance of those duties he shall neither seek nor take instructions from any Government, institution, body, office or entity. The Ombudsman may not, during his term of office, engage in any other occupation, whether gainful or not.

4. The European Parliament acting by means of regulations on its own initiative in accordance with a special legislative procedure shall, after seeking an opinion from the Commission and with the approval of the Council, lay down the regulations and general conditions governing the performance of the Ombudsman's duties.


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Comment

Currently the Ombudsman is appointed, but under the Lisbon Treaty he would be elected by the European Parliament. This and other amendments do not alter the substance of the provision.


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The second part will look at detailed provisions relating to the Ombudsman.


Ralf Grahn

EU citizenship: Right of petition

One of the rights of citizens of the European Union is the right of petition, extended to other residents of the EU.

The subject matter has to come within the Community's fields of activity and it must affect the petitioner directly, which means that general grievances are inadmissible.

We look at the current treaty provisions, the Treaty of Lisbon and the European Parliament’s Rules of Procedure before suggesting a few web pages with information about the Committee on Petitions (PETI).


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Current treaty

According to Article 21(1) of the Treaty establishing the European Community (TEC) every citizen of the Union has the right to petition the European Parliament in accordance with Article 194.

Article 194 TEC actually broadens the scope of petitioners beyond EU citizens. The right extends to atural persons residing in a member state (third country nationals) and to legal persons having their residence or registered office in a member state.

Not all grievances are admissible.

The matter has to come within the European Community’s fields of activity.

The matter must affect the petitioner(s) directly (OJEU 29.12.2006 C 321 E/133):

Article 194 TEC

Any citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, shall have the right to address, individually or in association with other citizens or persons, a petition to the European Parliament on a matter which comes within the Community's fields of activity and which affects him, her or it directly.


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Original Lisbon Treaty

Article 2, point 182 of the original Treaty of Lisbon amended Article 193 TEC and point 183 amended Article 195 TEC (OJEU 17.12.2007 C 306/102).

This means that there were no specific amendments to Article 194 TEC.


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Consolidated Lisbon Treaty

The Community’s fields of activity became the Union’s according to the customary horizontal amendment and the provision was renumbered in the consolidated Lisbon Treaty, as Article 227 of the Treaty on the Functioning of the European Union (OJEU 9.5.2008 C 115/150):


Article 227 TFEU
(ex Article 194 TEC)

Any citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, shall have the right to address, individually or in association with other citizens or persons, a petition to the European Parliament on a matter which comes within the Union's fields of activity and which affects him, her or it directly.


***


Comment

In the Lisbon Treaty the EU citizenship provision corresponding to Article 21 TEC is Article 24 TFEU, which refers to Article 227 TFEU.

Article 44 of the Charter of the Fundamental Rights of the European Union is the third place where the right to petition is enshrined (OJEU 14.12.2007 C 303/11):

Article 44 Charter
Right to petition

Any citizen of the Union and any natural or legal person residing or having its registered office in a Member State has the right to petition the European Parliament.


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EP Rules of Procedure

The Title VIII Rules 191 to 193 of the European Parliament’s Rules of Procedure contain more details on petitions (16th edition, October 2008):



TITLE VIII PETITIONS

Rule 191 Right of petition

1. Any citizen of the European Union and any natural or legal person residing or having its registered office in a Member State shall have the right to address, individually or in association with other citizens or persons, a petition to Parliament on a matter which comes within the European Union's fields of activity and which affects him, her or it directly.

2. Petitions to Parliament shall show the name, nationality and permanent address of each petitioner.

3. Petitions must be written in one of the official languages of the European Union.

Petitions written in any other language will be considered only where the petitioner has attached a translation or summary drawn up in an official language of the European Union. The translation or summary shall form the basis of Parliament's work. Parliament's correspondence with the petitioner shall employ the official language in which the translation or summary is drawn up.

4. Petitions shall be entered in a register in the order in which they are received if they comply with the conditions laid down in paragraph 2; those that do not shall be filed, and the petitioner shall be informed of the reasons therefor.

5. Petitions entered in the register shall be forwarded by the President to the committee responsible, which shall first ascertain whether the petitions registered fall within the sphere of activities of the European Union.

6. Petitions declared inadmissible by the committee shall be filed; the petitioner shall be informed of the decision and the reasons therefor.

7. In such cases the committee may suggest to the petitioner that he contact the competent authority of the Member State concerned or of the European Union.

8. Unless the petitioner asks for it to be treated in confidence, it shall be entered in a public register.

9. Where the committee deems it appropriate, it may refer the matter to the Ombudsman.

10. Petitions addressed to Parliament by natural or legal persons who are neither citizens of the European Union nor reside in a Member State nor have their registered office in a Member State shall be registered and filed separately. The President shall send a monthly record of such petitions received during the previous month, indicating their subject matter, to the committee responsible for considering petitions, which may request those which it wishes to consider.



Rule 192 Examination of petitions

1. The committee responsible may decide to draw up a report or otherwise express its opinion on petitions it has declared admissible.

The committee may, particularly in the case of petitions which seek changes in existing law, request opinions from other committees pursuant to Rule 46.

2. An electronic register shall be set up in which citizens may lend their support to the petitioner, appending their own electronic signature to petitions which have been declared admissible and entered in the register.

3. When considering petitions or establishing facts, the committee may organise hearings of petitioners or general hearings or dispatch members to establish the facts of the situation in situ.

4. With a view to preparing its opinions, the committee may request the Commission to submit documents, to supply information and to grant it access to its facilities.

5. The committee shall, where necessary, submit motions for resolutions to Parliament on petitions which it has considered.

The committee may also request that its opinions be forwarded by the President to the Commission or the Council.

6. The committee shall inform Parliament every six months of the outcome of its deliberations.

The committee shall, in particular, inform Parliament of the measures taken by the Council or the Commission on petitions referred to them by Parliament.

7. The President shall inform petitioners of the decisions taken and the reasons therefor.



Rule 193 Notice of petitions

1. Notice shall be given in Parliament of the petitions entered in the register referred to in Rule 191(4) and the main decisions on the procedure to be followed in relation to specific petitions. Such announcements shall be entered in the minutes of proceedings.

2. The title and a summary of the texts of petitions entered in the register, together with the texts of the opinions and the most important decisions forwarded in connection with the examination of the petitions, shall be made available to the public in a database, provided the petitioner agrees to this. Confidential petitions shall be preserved in the records of Parliament, where they shall be available for inspection by Members.


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We note that the current Article 194 TEC speaks of matters coming within the fields of activity of the Community, whereas the EP Rules of Procedure refer to the European Union’s field of activity.

If the Lisbon Treaty enters into force, Article 227 TFEU will refer to a matter which comes within the Union's fields of activity, but nothing says that the member states (Council) will want to contribute to petitions with regard to the CFSP and CSDP. At least we will have to wait for petition practice to evolve.


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European Parliament information

The European Parliament offers five web pages with readable information about Petitions:

http://www.europarl.europa.eu/parliament/public/staticDisplay.do;jsessionid=774E682BEF855A02BF18F0B99FE49F68.node2?language=EN&id=49



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EP Committee on Petitions (PETI)


News and information about the EP’s Committee on Petitions can be found on:

http://www.europarl.europa.eu/activities/committees/homeCom.do?language=EN&body=PETI


For the seriously inclined, the web pages on Reports may be of interest:

http://www.europarl.europa.eu/activities/committees/reportsCom.do?language=EN&body=PETI


The same can be said for draft reports:

http://www.europarl.europa.eu/activities/committees/draftReportsCom.do?language=EN&body=PETI


An overview of the work of the Committee on Petitions is offered by the fresh (9 February 2009) draft Report on the deliberations of the Committee on Petitions during the parliamentary
year 2008 (2008/2301(INI)); rapporteur: Mairead McGuinness:


http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//NONSGML+COMPARL+PE-418.130+01+DOC+PDF+V0//EN&language=EN


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EP and EU citizenship

A related topic: The European Parliament’s Committee on Civil Liberties, Justice and Home Affairs (LIBE) conducted a hearing on European citizenship on 16 February 2009.

The hearing was related to the 5 February 2009 draft Report on Problems and prospects concerning European Citizenship (2008/2234(INI); rapporteur: Urszula Gacek. The draft Report, 2008/2234(INI), is available here:

http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//NONSGML+COMPARL+PE-419.850+02+DOC+PDF+V0//EN&language=EN



Ralf Grahn

EU procurement law: Technical specifications (II)

Article 23(1) of the Procurement Directive 2004/18/EC lays down the obligation for the contracting authority to set out the technical specifications as defined in point 1 of Annex VI in the contract documentation:


CHAPTER IV
Specific rules governing specifications and contract documents

Article 23
Technical specifications

1. The technical specifications as defined in point 1 of Annex VI shall be set out in the contract documentation, such as contract notices, contract documents or additional documents. Whenever possible these technical specifications should be defined so as to take into account accessibility criteria for people with disabilities or design for all users.



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Public works contracts

Annex VI Definition of certain technical specifications distinguishes between public works contracts and public supply or public service contracts.

Therefore we look at public works contracts separately:




For the purposes of this Directive:

1. (a) ‘technical specification’, in the case of public works contracts, means the totality of the technical prescriptions contained in particular in the tender documents, defining the characteristics required of a material, product or supply, which permits a material, a product or a supply to be described in a manner such that it fulfils the use for which it is intended by the contracting authority. These characteristics shall include levels of environmental performance, design for all requirements (including accessibility for disabled persons) and conformity assessment, performance, safety or dimensions, including the procedures concerning quality assurance, terminology, symbols, testing and test methods, packaging, marking and labelling and production processes and methods. They shall also include rules relating to design and costing, the test, inspection and acceptance conditions for works and methods or techniques of construction and all other technical conditions which the contracting authority is in a position to prescribe, under general or specific regulations, in relation to the finished works and to the materials or parts which they involve;

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Public supply or service contract

For public supply or service contracts point 1(b) of Annex VI lists the required technical specifications for the purposes of the Procurement Directive 2004/18/EC slightly differently from public works contracts:



For the purposes of this Directive:

(b) ‘technical specification’, in the case of public supply or service contracts, means a specification in a document defining the required characteristics of a product or a service, such as quality levels, environmental performance levels, design for all requirements (including accessibility for disabled persons) and conformity assessment, performance, use of the product, safety or dimensions, including requirements relevant to the product as regards the name under which the product is sold, terminology, symbols, testing and test methods, packaging, marking and labelling, user instructions, production processes and methods and conformity assessment procedures;


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Hierarchy of standards

Insofar as technical standards apply, Article 23 of the Procurement Directive introduces a hierarchy of standards ─ order of preference ─, which leads us to the definitions contained in points 2 to 5 of Annex VI:



2. ‘standard’ means a technical specification approved by a recognised standardising body for repeated or continuous application, compliance with which is not compulsory and which falls into one of the following categories:

— international standard: a standard adapted by an international standards organisation and made available to the general public,

— European standard: a standard adopted by a European standards organization and made available to the general public,

— national standard: a standard adopted by a national standards organization and made available to the general public;

3. ‘European technical approval’ means a favourable technical assessment of the fitness for use of a product for a particular purpose, based on the fulfilment of the essential requirements for building works, by means of the inherent characteristics of the product and the defined conditions of application and use. European technical approvals are issued by an approval body designated for this purpose by the Member State;

4. ‘Common technical specification’ means a technical specification laid down in accordance with a procedure recognised by the Member States which has been published in the Official Journal of the European Union;

5. ‘technical reference’: any product produced by European standardisation bodies, other than official standards, according to procedures adopted for the development of market needs.


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We should now have the tools at hand to begin looking at the Directive’s rules on the use of technical specifications in coming blog posts.


Ralf Grahn

Lisbon Treaty: Aland Islands and Gibraltar

I have noticed that some people are looking for information about the approval of the EU Treaty of Lisbon in Aland and Gibraltar.

Finland and the United Kingdom have ratified the Lisbon Treaty, but these autonomous regions decide if the treaty is to be applied in their territories.

This post can be called an update ─ in theory.

Three weeks since my latest post on the Aland Islands and the EU Treaty of Lisbon, no report has emanated from the Legal Committee of the Aland Parliament. If the treaty reaches the plenary a two thirds majority is needed for approval.

The other self-ruling region with a population of 28,000 is Gibraltar. A government official was kind enough to promise an answer about the plans for the approval of the Lisbon Treaty as soon as possible, but nothing has been heard of since.

Scanning speeches, press releases etc. on the web pages of the Government of Gibraltar (no search function available) drew a blank, as did a search on Laws of Gibraltar, although at least the Wikipedia article on the Lisbon Treaty tells us that Gibraltar is supposed to decide on approval. The Gibraltar Parliament seems to have but one all-purpose home page, without any links to political business.

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The Treaty of Lisbon was signed 13 December 2007. It was published in the Official Journal of the European Union on 17 December 2007. Fourteen months have now passed.

Self-rule, population count and discretion seem to be common characteristics despite the geographical distance between Aland and Gibraltar.

Small and agile? Open communications?


Forget it.


Ralf Grahn

European Parliament: Committee of Inquiry

What can EU law teach us about the powers of the European Parliament to investigate alleged contraventions or maladministration of European Community (European Union) law?

We look at the current treaty provisions, the Treaty of Lisbon, detailed provisions, internal EP rules and a few examples of inquiries.



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Current treaty

Article 193 of the Treaty establishing the European Community (TEC) foresees that an extraordinary Committee of Inquiry in relation to the implementation of Community law, to investigate:

· contraventions or
· maladministration.

The Committee of Inquiry is temporary. One quarter of the MEPs must request the setting up of the Committee, but the decision is taken by the plenary.

If the matter is being examined before a court, no Committee shall be set up during the proceedings, but otherwise the provision is without prejudice to other investigations and actions.


The text of Article 193 TEC is from the latest consolidated version of the treaties, OJEU 29.12.2006 C 321 E/133:


Article 193 TEC

In the course of its duties, the European Parliament may, at the request of a quarter of its Members, set up a temporary Committee of Inquiry to investigate, without prejudice to the powers conferred by this Treaty on other institutions or bodies, alleged contraventions or maladministration in the implementation of Community law, except where the alleged facts are being examined before a court and while the case is still subject to legal proceedings.

The temporary Committee of Inquiry shall cease to exist on the submission of its report.

The detailed provisions governing the exercise of the right of inquiry shall be determined by common accord of the European Parliament, the Council and the Commission.


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Original Lisbon Treaty

Article 2, point 182 of the original Treaty of Lisbon amended Article 193 TEC (OJEU 17.12.2007 C 306/102):


182) Article 193 shall be amended as follows:

(a) in the first paragraph, the words ‘of its Members’ shall be replaced by ‘of its component Members’;

(b) the third paragraph shall be replaced by the following:

‘The detailed provisions governing the exercise of the right of inquiry shall be determined by the European Parliament, acting by means of regulations on its own initiative in accordance with a special legislative procedure, after obtaining the consent of the Council and the Commission.’.


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Consolidated Lisbon Treaty

In the consolidated (readable) Lisbon Treaty the provision appears renumbered as Article 226 of the Treaty on the Functioning of the European Union, TFEU (OJEU 9.5.2008 C 115/150):


Article 226 TFEU
(ex Article 193 TEC)

In the course of its duties, the European Parliament may, at the request of a quarter of its component Members, set up a temporary Committee of Inquiry to investigate, without prejudice to the powers conferred by the Treaties on other institutions or bodies, alleged contraventions or maladministration in the implementation of Union law, except where the alleged facts are being examined before a court and while the case is still subject to legal proceedings.

The temporary Committee of Inquiry shall cease to exist on the submission of its report.

The detailed provisions governing the exercise of the right of inquiry shall be determined by the European Parliament, acting by means of regulations on its own initiative in accordance with a special legislative procedure, after obtaining the consent of the Council and the Commission.


***


Comment

The addition of the word ‘component’ to the quarter of members needed for a request makes life easier for the reader, without changing the substance. In theory, this would mean 188 MEPs under the Lisbon Treaty, if it enters into force and if the actual number of members at some point tallies with the 751 intended by Article 14(2) TEU.

The decision to set up the Committee of Inquiry is still taken by majority vote.

The material scope of the provision encompasses the implementation of EU law. The greater part of the EU budget is spent in the member states, where most of the implementation of Union law takes place.

Rephrasing the third paragraph makes it into one of the few instances where a special legislative procedure emanates from the European Parliament (not the Council), but since the consent of the Council and the Commission is still needed, there is little change in practice.


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Detailed provisions on Committees of Inquiry

Annex VIII of the European Parliament’s Rules of Procedure reproduces the text of Decision of the European Parliament, the Council and the Commission of 19 April 1995 on the detailed provisions governing the exercise of the European Parliament's right of inquiry (OJ 19.5.1995 L 113/2).




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EP Rules of Procedure

Rule 176 of the European Parliament’s Rules of Procedure (16th edition, October 2008) provides detailed internal provisions on Committees of inquiry:


Rule 176 Committees of inquiry

1. Parliament may, at the request of one-quarter of its component Members, set up a committee of inquiry to investigate alleged contraventions of Community law or alleged maladministration in the application of Community law which would appear to be the act of an institution or body of the European Communities, of a public administrative body of a Member State, or of persons empowered by Community law to implement that law.

The decision to set up a committee of inquiry shall be published in the Official Journal of the European Union within one month. In addition, Parliament shall take all the necessary steps to make this decision as widely known as possible.

2. The modus operandi of a committee of inquiry shall be governed by the provisions of these Rules relating to committees, save as otherwise specifically provided for in this Rule and in the Decision of the European Parliament, the Council and the Commission of 19 April 1995 on the detailed provisions governing the exercise of the European Parliament's right of inquiry which is annexed to these Rules.

3. The request to set up a committee of inquiry must specify precisely the subject of the inquiry and include a detailed statement of the grounds for it. Parliament, on a proposal from the Conference of Presidents, shall decide whether to set up a committee and, if it decides to do so, on its composition, in accordance with the provisions of Rule 177.

4. A committee of inquiry shall conclude its work with the submission of a report within not more than twelve months. Parliament may twice decide to extend this period by three months.

Only full members or, in their absence, permanent substitutes may vote in a committee of inquiry.

5. A committee of inquiry shall elect its chair and two vice-chairs and appoint one or more rapporteurs. The committee may also assign responsibilities, duties or specific tasks to its members who must subsequently report to the committee in detail thereon.

In the interval between one meeting and another, the bureau of the committee shall, in cases of urgency or need, exercise the committee's powers, subject to ratification at the next meeting.

6. When a committee of inquiry considers that one of its rights has been infringed, it shall propose that the President take appropriate measures.

7. A committee of inquiry may contact the institutions or persons referred to in Article 3 of the Decision referred to in paragraph 2 with a view to holding a hearing or obtaining documents.

Travel and accommodation expenses of members and officials of Community institutions and bodies shall be borne by the latter. Travel and accommodation expenses of other persons who appear before a committee of inquiry shall be reimbursed by the European Parliament in accordance with the rules governing hearings of experts.

Persons called to give evidence before a committee of inquiry may claim the rights they would enjoy if acting as a witness before a tribunal in their country of origin. They must be informed of these rights before they make a statement to the committee.

With regard to the languages used, a committee of inquiry shall apply the provisions
of Rule 138. However, the bureau of the committee:

- may restrict interpretation to the official languages of those who are to take part in the deliberations, if it deems this necessary for reasons of confidentiality,

- shall decide about translation of the documents received in such a way as to ensure that the committee can carry out its deliberations efficiently and rapidly and that the necessary secrecy and confidentiality are respected.

8. The chair of a committee of inquiry shall, together with the bureau, ensure that the secrecy or confidentiality of deliberations are respected and shall give members due notice to this effect.

The chair shall also explicitly refer to the provisions of Article 2(2) of the Decision referred to above. Annex VII(A) of the Rules of Procedure shall apply.

9. Secret or confidential documents which have been forwarded shall be examined using technical measures to ensure that only the members responsible for the case have personal access to them. The members in question shall give a solemn undertaking not to allow any other person access to secret or confidential information, in accordance with this Rule, and to use such information exclusively for the purposes of drawing up their report for the committee of inquiry. Meetings shall be held on premises equipped in such a way as to make it impossible for any non-authorised persons to listen to the proceedings.

10. After completion of its work a committee of inquiry shall submit to Parliament a report on the results of its work, containing minority opinions if appropriate in accordance with the conditions laid down in Rule 48. The report shall be published.

At the request of the committee of inquiry Parliament shall hold a debate on the report at the part-session following its submission.

The committee may also submit to Parliament a draft recommendation addressed to institutions or bodies of the European Communities or the Member States.

11. The President shall instruct the committee responsible pursuant to Annex VI to monitor the action taken on the results of the work of the committee of inquiry and, if appropriate, to report thereon, and shall take any further steps which are deemed appropriate to ensure that the conclusions of the inquiry are acted upon in practice.


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The Rules of Procedure add the following explanations to Rule 176:


Only the proposal from the Conference of Presidents concerning the composition of a committee of inquiry (paragraph 3) is open to amendments, in accordance with Rule 177(2).

The subject of the inquiry as defined by one-quarter of Parliament's component Members (paragraph 3) and the period laid down in paragraph 4 are not open to amendments.


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Examples of Committees of Inquiry


Under the existing Decision (inter-institutional agreement) the following procedures can be mentioned. The interested readers can follow the procedures after the decisions setting up the Committees of inquiry:


A temporary committee of inquiry to investigate alleged contraventions or maladministration under the Community transit system [of goods under customs supervision], OJ 12.1.1996 C 7/1.
EP file to follow INI/1995/2321



European Parliament Decision of 17 July 1996 setting up a temporary commitee of inquiry to investigate alleged contraventions or maladministration in the implementation of Community law in relation to BSE, without prejudice to the jurisdiction of the national and Community courts, Official Journal 17.8.1996 C 239/1; plus follow-up committee.


Decision 2006/469/EC of the European Parliament of 18 January 2006 on setting up a Committee of Inquiry into the crisis of the Equitable Life Assurance Society, OJ 7.7.2006 L 186/58.
EP file INI/2006/2199

European Parliament decision setting up a temporary committee on the alleged use of European
countries by the CIA for the transportation and illegal detention of prisoners, based on P6_TA(2006)0012, published OJ 24.11.2006 C 287 E/159.
EP file 2006/2027(INI)


Ralf Grahn

EU procurement law: Technical specifications (I)

The aim of European Community (European Union) procurement rules is to open up public purchasing to competition in the internal market. Technical specifications favouring certain (national) tenderers can defeat this purpose before the competition has started.

The subject of technical specifications will be covered in more than one post.


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Article 23 Technical specifications

Article 23 of the Procurement Directive 2004/18/EC lays down long and complicated rules for the technical specifications allowed in order to ensure a fairly level playing-field between potential bidders:


CHAPTER IV
Specific rules governing specifications and contract documents

Article 23
Technical specifications

1. The technical specifications as defined in point 1 of Annex VI shall be set out in the contract documentation, such as contract notices, contract documents or additional documents. Whenever possible these technical specifications should be defined so as to take into account accessibility criteria for people with disabilities or design for all users.

2. Technical specifications shall afford equal access for tenderers and not have the effect of creating unjustified obstacles to the opening up of public procurement to competition.

3. Without prejudice to mandatory national technical rules, to the extent that they are compatible with Community law, the technical specifications shall be formulated:

(a) either by reference to technical specifications defined in Annex VI and, in order of preference, to national standards transposing European standards, European technical approvals, common technical specifications, international standards, other technical reference systems established by the European standardization bodies or — when these do not exist — to national standards, national technical approvals or national technical specifications relating to the design, calculation and execution of the works and use of the products. Each reference shall be accompanied by the words ‘or equivalent’;

(b) or in terms of performance or functional requirements; the latter may include environmental characteristics. However, such parameters must be sufficiently precise to allow tenderers to determine the subject-matter of the contract and to allow contracting authorities to award the contract;

(c) or in terms of performance or functional requirements as mentioned in subparagraph (b), with reference to the specifications mentioned in subparagraph (a) as a means of presuming conformity with such performance or functional requirements;

(d) or by referring to the specifications mentioned in subparagraph (a) for certain characteristics, and by referring to the performance or functional requirements mentioned in subparagraph (b) for other characteristics.

4. Where a contracting authority makes use of the option of referring to the specifications mentioned in paragraph 3(a), it cannot reject a tender on the grounds that the products and services tendered for do not comply with the specifications to which it has referred, once the tenderer proves in his tender to the satisfaction of the contracting authority, by whatever appropriate means, that the solutions which he proposes satisfy in an equivalent manner the requirements defined by the technical specifications.

An appropriate means might be constituted by a technical dossier of the manufacturer or a test report from a recognised body.

5. Where a contracting authority uses the option laid down in paragraph 3 to prescribe in terms of performance or functional requirements, it may not reject a tender for works, products or services which comply with a national standard transposing a European standard, with a European technical approval, a common technical specification, an international standard or a technical reference system established by a European standardisation body, if these specifications address the performance or functional requirements which it has laid down.

In his tender, the tenderer must prove to the satisfaction of the contracting authority and by any appropriate means that the work, product or service in compliance with the standard meets the performance or functional requirements of the contracting authority.

An appropriate means might be constituted by a technical dossier of the manufacturer or a test report from a recognised body.

6. Where contracting authorities lay down environmental characteristics in terms of performance or functional requirements as referred to in paragraph 3(b) they may use the detailed specifications, or, if necessary, parts thereof, as defined by European or (multi-) national eco-labels, or by and any other eco-label, provided that:

— those specifications are appropriate to define the characteristics of the supplies or services that are the object of the contract,

— the requirements for the label are drawn up on the basis of scientific information,

— the eco-labels are adopted using a procedure in which all stakeholders, such as government bodies, consumers, manufacturers, distributors and environmental organisations can participate, and

— they are accessible to all interested parties.

Contracting authorities may indicate that the products and services bearing the eco-label are presumed to comply with the technical specifications laid down in the contract documents; they must accept any other appropriate means of proof, such as a technical dossier of the manufacturer or a test report from a recognised body.

7. ‘Recognised bodies’, within the meaning of this Article, are test and calibration laboratories and certification and inspection bodies which comply with applicable European standards.

Contracting authorities shall accept certificates from recognised bodies established in other Member States.

8. Unless justified by the subject-matter of the contract, technical specifications shall not refer to a specific make or source, or a particular process, or to trade marks, patents, types or a specific origin or production with the effect of favouring or eliminating certain undertakings or certain products. Such reference shall be permitted on an exceptional basis, where a sufficiently precise and intelligible description of the subject-matter of the contract pursuant to paragraphs 3 and 4 is not possible; such reference shall be accompanied by the words ‘or equivalent’.


***

Annex VI

Article 23(1) refers to Annex VI Definition of certain technical specifications (on page 137 of the consolidation of 15 September 2008 of the Procurement Directive), which contains a number of definitions necessary for understanding and navigating the provisions.

Perhaps the best solution is the present the text in full for ease of reference:


ANNEX VI
DEFINITION OF CERTAIN TECHNICAL SPECIFICATIONS

For the purposes of this Directive:

1. (a) ‘technical specification’, in the case of public works contracts, means the totality of the technical prescriptions contained in particular in the tender documents, defining the characteristics required of a material, product or supply, which permits a material, a product or a supply to be described in a manner such that it fulfils the use for which it is intended by the contracting authority. These characteristics shall include levels of environmental performance, design for all requirements (including accessibility for disabled persons) and conformity assessment, performance, safety or dimensions, including the procedures concerning quality assurance, terminology, symbols, testing and test methods, packaging, marking and labelling and production processes and methods. They shall also include rules relating to design and costing, the test, inspection and acceptance conditions for works and methods or techniques of construction and all other technical conditions which the contracting authority is in a position to prescribe, under general or specific regulations, in relation to the finished works and to the materials or parts which they involve;

(b) ‘technical specification’, in the case of public supply or service contracts, means a specification in a document defining the required characteristics of a product or a service, such as quality levels, environmental performance levels, design for all requirements (including accessibility for disabled persons) and conformity assessment, performance, use of the product, safety or dimensions, including requirements relevant to the product as regards the name under which the product is sold, terminology, symbols, testing and test methods, packaging, marking and labelling, user instructions, production processes and methods and conformity assessment procedures;

2. ‘standard’ means a technical specification approved by a recognised standardising body for repeated or continuous application, compliance with which is not compulsory and which falls into one of the following categories:

— international standard: a standard adapted by an international standards organisation and made available to the general public,

— European standard: a standard adopted by a European standards organization and made available to the general public,

— national standard: a standard adopted by a national standards organization and made available to the general public;

3. ‘European technical approval’ means a favourable technical assessment of the fitness for use of a product for a particular purpose, based on the fulfilment of the essential requirements for building works, by means of the inherent characteristics of the product and the defined conditions of application and use. European technical approvals are issued by an approval body designated for this purpose by the Member State;

4. ‘Common technical specification’ means a technical specification laid down in accordance with a procedure recognised by the Member States which has been published in the Official Journal of the European Union;

5. ‘technical reference’: any product produced by European standardisation bodies, other than official standards, according to procedures adopted for the development of market needs.


***


Where and when?

According to Article 23(1) of the Procurement Directive the technical specifications (as defined in point 1 of Annex VI) are to be in the contract documentation, such as contract notices, contract documents or additional documents.


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Accessibility criteria: Disabled persons



Article 23(1) contains a strong recommendation to take into account accessibility criteria for people with disabilities or design for all users whenever possible in defining the technical specifications.


***

We continue the presentation of technical specifications in public procurement in later blog posts.



Ralf Grahn

Czech stewardship: We don’t give a damn

This blog has highlighted governments of European Union member states doing their level best to ignore the fundamental principles of European integration and loyal cooperation.

France’s president Nicolas Sarkozy entered the race to the bottom with his disregard for the internal market and its competition rules, calling French automakers home to roost and banning local ones from exiting.

The UK Home Office qualified by preventing both free movement and free speech by Dutch MP Geert Wilders, reasoning that the object of a security threat is to be excluded as the perpetrator.

The Czech government has repeatedly postponed the parliamentary ratification votes for various unrelated reasons of internal politicking. It should probably have entered this inglorious competition on past merits.

But now deputy prime minister Alexandr Vondra has told the rest of Europe that it is the sovereign right of the Czech and Irish governments to delay ratification at will.

Don’t pressure us over EU treaty: Czechs, reports EUbusiness (15 February 2009):

http://www.eubusiness.com/news-eu/1234731721.43

***

Words like these can be expected from populists on the political fringes, but they are hardly the message to brandish if you are in office in an EU member state.

Unconcern toward the express wishes of the quasi-totality of EU governments and parliaments would be damning during the best of times.

But the European elections are coming up, and the longer the uncertainty prevails, the more complicated the composition of the European Parliament gets and the harder it will be to elect the new Commission. The new role of the High Representative and the European External Action Service are postponed, when Europe urgently needs to get its act together on the world stage.

Vondra has discredited his country, doubly so because it is in charge of the EU Council, with a moral obligation to drive forward the common interests, not pander to nationalist sentiments.

At the same time the Czech government has contributed to the survival of the rotating Council presidencies long enough to prove eloquently, why the current lottery system needs to be scrapped.

***

We have at least three strong government level contenders for the 2009 Esprit de Clocher UE knighthood.

Name your favourite (with reasons) or enter a new contender for the master class of gaffes.


Ralf Grahn

European Parliament: Legislative initiative?

Does a parliament legislate on government proposals on its own initiative? These are interesting questions at national level and the same things can be discussed at supra-national level with regard to the European Communities (European Union).

From the European Economic Community to the possible unitary European Union development has been characterised by a delicate creation called the institutional balance. Representative democracy has been allowed to take root only gradually and cautiously.

The main rule is that secondary legislation is initiated by the Commission, to the extent that its right to make proposals often is described as a monopoly.

The “legislative branch” consists of the Council and the directly elected European Parliament.

In this blog post we look at the European Parliament’s possibilities to initiate Community legislation.


***

Current treaty

Article 192 of the Treaty establishing the European Community (TEC) mentions the legislative procedures the European Parliament participates in: the co-decision procedure and the cooperation procedure. The assent procedure and consultation are also mentioned.

For today’s blog post our focus is on the second paragraph.

There are of course many ways in which the European Parliament can informally draw attention to the need for Community legislation.

But formally, we see that the European Parliament is not mentioned as an initiator of legislation.

The EP has the formal right to request a legislative proposal from the Commission (OJEU 29.12.2006 C 321 E/132):



Article 192 TEC

In so far as provided in this Treaty, the European Parliament shall participate in the process leading up to the adoption of Community acts by exercising its powers under the procedures laid down in Articles 251 and 252 and by giving its assent or delivering advisory opinions.

The European Parliament may, acting by a majority of its Members, request the Commission to submit any appropriate proposal on matters on which it considers that a Community act is required for the purpose of implementing this Treaty.


***

Original Lisbon Treaty

Article 2, point 181 of the original Treaty of Lisbon formally deleted the first paragraph of Article 192 TEC and amended the second paragraph (OJEU 17.12.2007 C 306/101):



181) In Article 192, the first paragraph shall be deleted; in the second paragraph, the words ‘of its Members’ shall be replaced by ‘of its component members’ and the following sentence shall be added at the end of the paragraph: ‘If the Commission does not submit a proposal, it shall
inform the European Parliament of the reasons.’.


***


Consolidated Lisbon Treaty

In the consolidated (readable) version of the Treaty of Lisbon, Article 14(1) of the Treaty on European Union (TEU) expresses the principal tasks of the formally deleted first paragraph 1 of Article 192 TEC, arguably more elegantly (OJEU 9.5.2008 C 115/22):


Article 14 TEU

1. The European Parliament shall, jointly with the Council, exercise legislative and budgetary functions. It shall exercise functions of political control and consultation as laid down in the Treaties. It shall elect the President of the Commission.


*

The second paragraph, with amendments, becomes the renumbered Article 225 of the Treaty on the Functioning of the European Union (TFEU), on OJEU page 150:


Article 225 TFEU
(ex Article 192, second subparagraph, TEC)

The European Parliament may, acting by a majority of its component Members, request the Commission to submit any appropriate proposal on matters on which it considers that a Union act is required for the purpose of implementing the Treaties. If the Commission does not submit a proposal, it shall inform the European Parliament of the reasons.


***

Comment

The Lisbon Treaty does not give the European Parliament the power to legislate on its own initiative (with the exception of issues mainly internal in character). The Council’s powers in this regard are almost equal (although in justice and home affairs, known as the area of freedom, security and justice, even individual member states retain some powers to make formal proposals).

Generally the institutional balance is maintained by upholding the Commission’s so called monopoly of initiative.

The EP’s right to initiate legislation remains indirect, by requesting a proposal from the Commission.

Even such a request is not made lightly. A majority of all MEPs has to support the request.

The novelty ─ at treaty level ─ is the obligation of the Commission to state its reasons if it refuses to submit a proposal. This addition is modeled on Article III-332 of the Constitutional Treaty.

The obligation to inform the EP of the reasons is far from revolutionary in practice, bacause the Commission has undertaken to act in this manner in inter-institutional agreements.


***

Procedures

The European Parliament’s Rules of Procedure (16th edition, October 2008) lay down internal procedures for requesting a legislative proposal from the Commission.

Rule 39 sets out the following rules to be followed:


Rule 39 Initiative pursuant to Article 192 of the EC Treaty

1. Parliament may request the Commission, pursuant to Article 192, second paragraph, of the EC Treaty, to submit to it any appropriate proposal for the adoption of a new act or the amendment of an existing act, by adopting a resolution on the basis of an own-initiative report from the committee responsible. The resolution shall be adopted by a majority of the component Members of Parliament. Parliament may, at the same time, fix a deadline for the submission of such a proposal.

2. Parliament's resolution shall indicate the appropriate legal basis and be accompanied by detailed recommendations as to the content of the required proposals, which shall respect fundamental rights and the principle of subsidiarity.

3. Where a proposal has financial implications, Parliament shall indicate how sufficient financial resources can be provided.

4. The committee responsible shall monitor the progress of preparation of any legislative proposal drawn up following a particular request by Parliament.

*

Relevant is also Rule 45, which requires the authorization of the Conference of Presidents for such an own-initiative report (paragraph 1). Paragraph 2 does not apply to reports referred to in Rule 39. The time-limit for a decision is two months:


Rule 45 Own-initiative reports

1. A committee intending to draw up a report and to submit a motion for a resolution to Parliament on a subject within its competence on which neither a consultation nor a request for an opinion has been referred to it pursuant to Rule 179(1) may do so only with the authorisation of the Conference of Presidents. Where such authorisation is withheld the reason must always be stated.
.
2. Motions for resolutions contained in own-initiative reports shall be examined by Parliament pursuant to the short presentation procedure set out in Rule 131a. Amendments to such motions for resolutions shall not be admissible for consideration in plenary unless tabled by the rapporteur to take account of new information, but alternative motions for resolutions may be tabled in accordance with Rule 151(4). This paragraph shall not apply where the subject of the report qualifies for a key debate in plenary, where the report is drawn up pursuant to the right of initiative referred to in Rule 38a or 39, or where the report can be considered a strategic report according to the criteria set out by the Conference of Presidents.

3. Where the subject of the report comes under the right of initiative referred to in Rule 38a, authorisation may be withheld only on the grounds that the conditions set out in the Treaties are not met.

4. In the cases referred to in Rule 38a and Rule 39, the Conference of Presidents shall take a decision within two months.


*

The explanations under Rule 45(1) add the following:


The Conference of Presidents shall take a decision on requests for authorisation to draw up reports submitted pursuant to paragraph 1 on the basis of implementing provisions which it shall itself lay down. If a committee's competence to draw up a report for which it has requested authorisation is challenged, the Conference of Presidents shall take a decision within six weeks on the basis of a recommendation from the Conference of Committee Chairs, or, if no such recommendation is forthcoming, from its chair. If the Conference of Presidents fails to take a decision within that period, the recommendation shall be declared to have been approved.


*

Annex XVIc of the EP Rules of Procedure contains rules ofn the procedure for granting authorization to draw up own-initiative reports.


***

We have seen the existing and new treaty provisions on the European Parliament’s indirect powers to initiate legislation by requesting a proposal. In addition we have got a foretaste of the EP as a rules based institution, bearing little resemblance to the anarchic feeling spread by some on-line campaigners and even parts of main-stream media.



Ralf Grahn

EU services procurement: Mixed contracts

Earlier we looked at the procurement of priority services (Annex II A) and at non-priority services (Annex II B). What to do when the same public contract covers both?

These contracts are defined as mixed.


The Procurement Directive 2004/18/EC offers a simple rule, based on the value of the different services. If the value of the priority services is greater, the full procurement procedures apply.

If not, only the provisions concerning non-priority services have to be observed.





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Article 22 Mixed contracts


Article 22 of the Procurement Directive 2004/18/EC, or the Classic Directive, lays down the rules concerning mixed contracts based on the value of priority and non-priority services:


Article 22
Mixed contracts including services listed in Annex II A and services listed in Annex II B

Contracts which have as their object services listed both in Annex II A and in Annex II B shall be awarded in accordance with Articles 23 to 55 where the value of the services listed in Annex II A is greater than the value of the services listed in Annex II B. In other cases, contracts shall be awarded in accordance with Article 23 and Article 35(4).


***


UK reminder: Under single contract

In the United Kingdom the EU Procurement Directive was transposed through the Public Contracts Regulations 2006 (No. 5). For the sake of the clarifying words ‘under a single contract’ the text of Section 2(3), under Crown copyright, is reproduced here:



(3) Where services specified in both Parts A and B of Schedule 3 are to be provided under a single contract, then the contract shall be treated as—

(a) a Part A services contract if the value of the consideration attributable to the services specified in Part A is greater than that attributable to those specified in Part B; and

(b) a Part B services contract if the value of the consideration attributable to the services specified in Part B is equal to or greater than that attributable to those specified in Part A.


***

Reminder: EU threshold

The Finnish Act on Public Contracts (348/2007) is another example of national transposing legislation. Here the latter part of Section 21(1) reminds us that the EU contract values (thresholds) determine if the procurement procedures apply to a certain contract:


Chapter 4 — Application rules for various contract types

Section 21 — Application rules for public supply and service contracts, service concessions and public works contracts

(1) The provisions laid out in this Act shall be applied to public supply contracts, public service contracts referred to in Annex A and to works contracts above the EU threshold, as referred to in Section 16, subsection 1, paragraphs 1 or 2, with the exception of the provisions laid down in Chapter 9. The provisions of this Act shall be applied to the cases in which services referred to in Annex A are purchased together with services referred to in Annex B, insofar as the value of the services referred to in Annex A is greater than the value of the services referred to in Annex B and the total value of such a service contract exceeds the value of the EU threshold.


***


Don’t get mixed up

Article 22 concerns mixed services contracts, including both priority and non-priority services. The contract should form a logical whole, without artificial bundling of unrelated non-priority services to avoid the rigours of the full tendering procedure.

But the term mixed contracts is used for other mixtures as well. Different components of services, works and supplies are possible and they follow their own rules. Just as an example of other mixes, here is an excerpt from the Office of Government Commerce (OGC) EU procurement guidance: Introduction to the EU procurement rules (March 2008; page 5):


8. Mixed contracts

Although the public sector Regulations have been consolidated, some differences in treatment remain for supplies, services and works contracts. Usually it will be clear how to categorise a requirement from its subject matter but there are occasions when contracts contain elements of both supplies and services, for example. In those cases:

• Where a contract covers both services and supplies, the classification should be determined by the respective values of the two elements.

• Where it covers works/supplies or works/services, it should be classified according to its predominant purpose.

• Where a contract provides for the supply of equipment and an operator it should be regarded as a services contract.

• Contracts for software are considered to be for supplies unless they have to be tailored to the purchaser’s specification, in which case they are services.


***


If priority services constitute the greater part a mixed public services contract reaching the EU threshold, without artificial devices, the procurement procedures apply in full.


Ralf Grahn

EU Law: Political parties at European level

Europarties, officially political parties at European level, are seen as a means to forming a European awareness and to expressing the political will of the EU citizens.

The existing treaty offers a legal base for rules on the Europarties and their funding.

We describe what the Treaty of Lisbon proposes before looking at some of the secondary legislation concerning European political parties and the funding newcomers, the European political foundations.

***

Current treaty

Article 191 of the Treaty establishing the European Community (TEC) lays down the basic principles governing political parties at European level.

According to the first subparagraph the Europarties are seen as a factor for EU integration.

Regulations concerning (the status of) European parties and their funding can be issued by co-decision (OJEU 29.12.2006 C 321 E/132): .


Article 191 TEC

Political parties at European level are important as a factor for integration within the Union. They contribute to forming a European awareness and to expressing the political will of the citizens of the Union.

The Council, acting in accordance with the procedure referred to in Article 251, shall lay down the regulations governing political parties at European level and in particular the rules regarding their funding.


***

Original Lisbon Treaty

Article 1, point 12 of the original Treaty of Lisbon replaced the existing Article 8 of the Treaty on European Union (TEU) by four Articles, 8 to 8c. Of these Article 8a(4) contained words on forming European political awareness and on the expression of the will of EU citizens (OJEU 17.12.2007 C 306/15):

4. Political parties at European level contribute to forming European political awareness and to expressing the will of citizens of the Union.


*

Article 2, point 180 ‘deleted’ the first paragraph of Article 191 TEC. As we saw, its slimmed resemblance had appeared in the new Article 8a(4) TEU (ToL). Then came some amendments to the wording of the second subparagraph (OJEU page 101):

180) In Article 191, the first paragraph shall be deleted. In the second paragraph, the words ‘, by
means of regulations,’ shall be inserted before ‘shall lay down’ and the words ‘referred to
in Article 8 A(4) of the Treaty on European Union’ shall be inserted after ‘at European level’.


***

Consolidated Lisbon Treaty

The basic provisions on representative democracy and the Europarties have been renumbered in the consolidated version of the Lisbon Treaty.

First Article 10 of the amended Treaty on European Union, in Title II Provisions on democratic principles (OJEU 9.5.2008 C 115/20), with the political parties mentioned in paragraph 4:


Article 10 TEU

1. The functioning of the Union shall be founded on representative democracy.

2. Citizens are directly represented at Union level in the European Parliament.

Member States are represented in the European Council by their Heads of State or Government and in the Council by their governments, themselves democratically accountable either to their national Parliaments, or to their citizens.

3. Every citizen shall have the right to participate in the democratic life of the Union. Decisions shall be taken as openly and as closely as possible to the citizen.

4. Political parties at European level contribute to forming European political awareness and to expressing the will of citizens of the Union.



*

Article 224 of the Treaty on the Functioning of the European Union (TFEU) took over the substance of the second subparagraph of Article 191 TEC, with the minor amendments seen above (OJEU page 149):


Article 224 TFEU
(ex Article 191, second subparagraph, TEC)

The European Parliament and the Council, acting in accordance with the ordinary legislative procedure, by means of regulations, shall lay down the regulations governing political parties at European level referred to in Article 10(4) of the Treaty on European Union and in particular the rules regarding their funding.


***

Secondary legislation


Statute for a European political party

There are existing statutes for European companies (SE) and European co-operatives as well as proposals for European associations and European mutuals, but there is no enactment on truly European political parties.


***

Funding for Europarties


It took a long time before the European Parliament and the Council were able to agree on European level political parties. The result was Regulation (EC) No 2004/2003 of the European Parliament and of the Council of 4 November 2003 on the regulations governing political parties at European level and the rules regarding their funding (OJEU 15.11.2003 L 297/1), since amended by Regulation No 1524/2007 (OJEU 27.12.2007 L 343/5).

The consolidated version (of 27 December 2007) of Regulation 2004/2003 is available here:

http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CONSLEG:2003R2004:20071227:EN:PDF



If no true category of European political party is created, the Regulation lays down certain criteria for the parties eligible for funding from the European Union. Cf. Article 1:

Article 1
Subject matter and scope

This Regulation establishes rules on the regulations governing political parties at European level and rules regarding their funding.


***

Europarty defined

Article 2 defines a political party at European level eligible for funding from the budget of the European Union:

Article 2
Definitions

For the purposes of this Regulation:

1. ‘political party’ means an association of citizens:

— which pursues political objectives, and

— which is either recognised by, or established in accordance with, the legal order of at least one Member State;

2. ‘alliance of political parties’ means structured cooperation between at least two political parties;

3. ‘political party at European level’ means a political party or an alliance of political parties which satisfies the conditions referred to in Article 3;
-----


***

As we see, both a political party and an alliance of political parties can fulfil the criteria.


***

Conditions for EU funding

Article 3(1) of Regulation 2004/2003 lays down the conditions for funding from the EU budget. Respect for the founding principles of the European Union is required and it must at least have the intention to participate in the European elections.

In addition the Europarty has to be represented by elected politicians in the EP or in national or regional parliaments in at least a quarter of the member states (meaning at least 7). Alternatively at least 3 % of the votes in the EP elections in seven member states qualify:


Article 3
Conditions

A political party at European level shall satisfy the following conditions:

(a) it must have legal personality in the Member State in which its seat is located;

(b) it must be represented, in at least one quarter of Member States, by Members of the European Parliament or in the national Parliaments or regional Parliaments or in the regional assemblies, or it must have received, in at least one quarter of the Member States, at least three per cent of the votes cast in each of those Member States at the most recent European Parliament elections;

(c) it must observe, in particular in its programme and in its activities, the principles on which the European Union is founded, namely the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law;

(d) it must have participated in elections to the European Parliament, or have expressed the intention to do so.
-----


***

There are more detailed provisions on applying for funds, verification of the conditions, obligations linked to funding etc.


***

Implementing decision

The implementing procedures have been laid down in a Decision by the EP Bureau. The first Decision (published OJEU 2004 C 155/1) seems to have been replaced by the Decision below.


The Decision of the Bureau of the European Parliament of 29 March 2004 laying down the procedures for implementing Regulation (EC) No 2004/2003 of the European Parliament and of the Council on the regulations governing political parties at European level and the rules regarding their funding, has been published as amended by the bureau Decision 1 February 2006 in OJEU 28.6.2006 C 150/9.

The Decision contains detailed provisions including application forms.

It is worth notice that the conditions have to be met prior to 15 November the preceding year.


***


Eurofoundations




The amended Article 2(4) of Regulation 2004/2003 introduced the definitions concerning a political foundation at European level. These show that only foundations affiliated to the Europarties are eligible:


4. ‘political foundation at European level’ means an entity or network of entities which has legal personality in a Member State, is affiliated with a political party at European level, and which through its activities, within the aims and fundamental values pursued by the European Union, underpins and complements the objectives of the political party at European level by performing, in particular, the following tasks:

— observing, analysing and contributing to the debate on European public policy issues and on the process of European integration,

— developing activities linked to European public policy issues, such as organising and supporting seminars, training, conferences and studies on such issues between relevant stakeholders, including youth organisations and other representatives of civil society,

— developing cooperation with entities of the same kind in order to promote democracy,

— serving as a framework for national political foundations, academics, and other relevant actors to work together at European level;

-----


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Funding conditions for Eurofoundations

According to Article 3(2) of Regulation 2004/2003 the Eurofoundation has to fulfil the following criteria:

2. A political foundation at European level shall satisfy the following conditions:

(a) it must be affiliated with one of the political parties at European level recognised in accordance with paragraph 1, as certified by that party;

(b) it must have legal personality in the Member State in which its seat is located. This legal personality shall be separate from that of the political party at European level with which the foundation is affiliated;

(c) it must observe, in particular in its programme and in its activities, the principles on which the European Union is founded, namely the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law;

(d) it shall not promote profit goals;

(e) its governing body shall have a geographically balanced composition.


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Expenditure

Under the European Parliament in the European Union budget for 2009 there are the following appropriations:

Article 402 contains EUR 10.858 million for European political parties and Article 403 allows contributions to European political foundations worth 7.0 million.



Ralf Grahn

Members of the European Parliament: Regulations and general conditions

Parts of the rights and duties of members of the European Parliament are covered by the Statute laying down the regulations and general conditions governing the performance of the duties of MEPs, finally approved and set to enter into force after the European Parliamentary elections on 4 to 7 June 2009.

How much the Statute cleans up the unsavoury practices concerning MEPs’ expenses depends on detailed rules set by the European Parliament and the control exercised by the EP in the future.


***

Current treaty

Article 190(5) of the Treaty establishing the European Community (TEC) gives the European Parliament some autonomy in devising the rules governing the performance of the duties of its Members (MEPs).

The EP’s initiative is subject to checks and balances. The Commission issues an opinion and the approval of the Council is needed.

Article 190(5) TEC as published in the latest consolidated version of the treaties, OJEU 29.12.2006 C 321 E/132:

Article 190(5) TEC

5. The European Parliament, after seeking an opinion from the Commission and with the approval of the Council acting by a qualified majority, shall lay down the regulations and general conditions governing the performance of the duties of its Members. All rules or conditions relating to the taxation of Members or former Members shall require unanimity within the Council.


***

Consolidated Lisbon Treaty



The substance remains the same if the Treaty of Lisbon enters into force. Taxation of MEPs and former MEPs still requires unanimity within the Council.

Article 223(2) of the Treaty on the Functioning of the European Union (TFEU) takes over and rephrases paragraph 5 of Article 190 TEC, OJEU 9.5.2008 C 115/149:




Article 223(2) TFEU


2. The European Parliament, acting by means of regulations on its own initiative in accordance with a special legislative procedure after seeking an opinion from the Commission and with the approval of the Council, shall lay down the regulations and general conditions governing the performance of the duties of its Members. All rules or conditions relating to the taxation of Members or former Members shall require unanimity within the Council.


***


Problems

The lack of a common Statute for the members of the European Parliament has led to gross iniquities between MEPs from different member states, with huge differences in remuneration tied to salaries of national parliamentarians.

On the other hand, reimbursement of travel and other expenses based on theoretical flat-rate amounts in combination with poor control resulted in a murky culture of MEPs lining their pockets and those of family members.

Cleaning the Augean stables proved to be a long and arduous task. Only after protracted efforts were the European Parliament and the Council able to reconcile their views.

***

Statute

Finally the Decision of the European Parliament 2005/684/EC, Euratom of 28 September 2005 adopting the Statute for Members of the European Parliament was able to introduce uniform rules concerning some aspects of the rules and general conditions applicable to the exercise of MEPs’ mandates.

The old rules apply until the end of the present term of the EP. The Statute enters into force only after the June 2009 European elections, on the first day of the European Parliament parliamentary term beginning in 2009 (Article 30), but there are transitional provisions for old members who might lose out (Articles 25 to 29).



The MEPs’ s Statute is much less than a comprehensive act on the rights and duties of members. Article 1 gives the scope of the Statute:


Article 1

This Statute lays down the regulations and general conditions governing the performance of the duties of Members of the European Parliament.


***

Overview

Many of the provisions refer to the EP’s Rules of Procedure (which will be presented in a later blog post). Here is a ‘telegraphic’ list of the contents of the Articles of the Statute:

Article 2: Freedom and independence of MEPs; agreements on resignation void.
Article 3: Individual and personal vote; binding mandate prohibited.
Article 4: Only tabled documents regarded as EP documents.
Article 5: Right to table proposals for Community acts.
Article 6: Right to inspect EP files (but not personal files and accounts).
Article 7: Translation of documents and speeches into all official languages.
Article 8: Forming political groups.
Article 9: Right to appropriate salary, transitional end-of-service allowance and pension. Survivor’s pension.
Article 10: Salary 38.5 % of the basic salary of a judge at the Court of Justice of the European Communities.
Article 11: Salary from another parliament is offset against EP salary.
Article 12: Salary subject to Community tax, but abatements not. National tax takes Community tax into account.
Article 13: Amount of transitional allowance at the end of office.
Article 14: Amount of old-age pension from the age of 63.
Article 15: Invalid pension.
Article 16: Choice between transitional allowance and invalid pension.
Article 17: Survivor's pension for the spouse and dependent children.
Article 18: Reimbursement of the costs incurred as a result of sickness, pregnancy or the birth of a child.
Article 19: Insurance cover.
Article 20: Reimbursement for expenses subject to rules laid down by the EP.
Article 21: Right to personal staff and expenses met by the EP.
Article 22: Right to the EP's office facilities, telecommunications equipment and official vehicles.
Article 23: All payments from EU budget.
Article 25: Old system optional for re-elected members.
Article 26: Notification of choice of old system.
Article 27: Voluntary pension fund remains for old members.
Article 28: Old national pension entitlements remain in force.
Article 29: Member states’ transitional rules.
Article 30: Entry into force on the first day of the parliamentary term 2009.


***

Allowances paid to MEPs

The European Parliament offers information about the current Allowances paid to Members of the European Parliament, including the general expenditure allowance (4,052 euros per month), the flat-rate travel allowance, the annual travel allowance (EUR 4,000) for other than official meetings, the subsistence allowance (EUR 287 per day) for participation in official business and remuneration of MEPs’ assistants (EUR 16,914 per month plus costs):

http://www.europarl.europa.eu/parliament/expert/staticDisplay.do?id=39&pageRank=1&language=EN

The web pages also refer to the coming detailed rules based on the Statute.


***

Detailed rules

The coming detailed rules concerning the amounts, payment and control of expenses are only referred to in the Statute, but the ingrained practices have been an eyesore for too long.

According to the web page referred to above the work on the new rules is unfinished.


***

EP Rules of Procedure

For those who want to look at the conduct of EP business the European Parliament’s Rules of Procedure (16th edition, October 2008) are available here:

http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//NONSGML+RULES-EP+20081022+0+DOC+PDF+V0//EN&language=EN

But it is somewhat bewildering to find that Eur-Lex refers to the European Parliament ─ Rules of Procedure 16th edition July 2004 (OJEU 15.2.2005 L 44/1), which seems to be the last version officially published and I failed to find the 2008 version through the Publications Office.

Clarifications from readers are invited. We are going to return to the EP’s Rules of Procedure in a later blog post.


Ralf Grahn

Members of the European Parliament: Privileges and immunities

My third Valentine’s Day post goes out with my best wishes to all readers and commentators as well as my fellow Eurobloggers and the aggregators of the Euroblogosphere at Bloggingportal.eu.

***

After this outburst of sentimentalism, a quick return to the bricks and mortar of European integration.

Starting from the normal presentation of the current treaties and the Lisbon Treaty, this short detour began from the provisions on the European Parliament. The European elections are coming up in June 2009, so I wanted to look at the available official information about the basics concerning these largest supra-national elections in the world, with almost 400 million potential voters.

After the background and the general provisions concerning the European Parliament, we now look at what Protocol (No 36) on the privileges and immunities of the European Communities, OJEU 29.12.2006 C 321 E/318, has to say about the Members of the European Parliament (MEPs):

CHAPTER III
MEMBERS OF THE EUROPEAN PARLIAMENT


Article 8

No administrative or other restriction shall be imposed on the free movement of Members of the European Parliament travelling to or from the place of meeting of the European Parliament.

Members of the European Parliament shall, in respect of customs and exchange control, be accorded:

(a) by their own government, the same facilities as those accorded to senior officials travelling abroad on temporary official missions;

(b) by the government of other Member States, the same facilities as those accorded to representatives of foreign governments on temporary official missions.


Article 9

Members of the European Parliament shall not be subject to any form of inquiry, detention or legal proceedings in respect of opinions expressed or votes cast by them in the performance of their duties.


Article 10

During the sessions of the European Parliament, its Members shall enjoy:

(a) in the territory of their own State, the immunities accorded to members of their parliament;

(b) in the territory of any other Member State, immunity from any measure of detention and from legal proceedings.

Immunity shall likewise apply to Members while they are travelling to and from the place of meeting of the European Parliament.

Immunity cannot be claimed when a Member is found in the act of committing an offence and shall not prevent the European Parliament from exercising its right to waive the immunity of one of its Members.

***
Comment

These EU-wide parliamentary rights and immunities resemble those applicable nationally to parliamentarians in the member states, and they seem necessary for the functioning of the European Parliament.

Still, I am doubtful if provisions tying the members to the legal rules concerning the immunities accorded at national level are the right solution. If we think that the citizens of the European Union should be represented equally, the rules pertaining to their representatives (MEPs) should be the same, to the extent possible, shouldn’t they?


Ralf Grahn

European Parliament: Privileges and immunities

The previous blog post painted the background of the privileges and immunities of the European Communities. Protocol (No 36) on the privileges and immunities of the European Communities, OJEU 29.12.2006 C 321 E/318, contains provisions relevant to the institutions, including the European Parliament.

Article 1 could be called the key-note provision:

Article 1

The premises and buildings of the Communities shall be inviolable. They shall be exempt from
search, requisition, confiscation or expropriation. The property and assets of the Communities shall not be the subject of any administrative or legal measure of constraint without the authorisation of the Court of Justice.

***

Article 2 extends the inviolability to the archives of the Communities.

Articles 3 and 4 exempts the Communities from all direct taxes as well as indirect taxes and customs duties for all articles intended for official use.

Communications and travel documents enjoy the same privileges as diplomatic communications and passports (Articles 6 and 7).

***

Government representatives

The European Union is the world’s largest international convention centre, so Article 11 concerns huge numbers of government representatives each year:

Article 11

Representatives of Member States taking part in the work of the institutions of the Communities, their advisers and technical experts shall, in the performance of their duties and during their travel to and from the place of meeting, enjoy the customary privileges, immunities and facilities.

This Article shall also apply to members of the advisory bodies of the Communities.

***

EU officials

Officials and other servants of the Communities are immune from national legal proceedings concerning their official acts, exempt with their families from immigration restrictions and formalities, enjoy the currency exchange rules applicable to their counterparts in international organisations, have a right to import their furniture and personal car duty-free and are exempted from national taxes, subject to more exact rules (Articles 12 to 16).

***

In short, the European Communities, including the institutions such as the European Parliament, are treated like international organisations and diplomatic missions.


Ralf Grahn

European Parliament: Privileges and immunities (background)

In some nightmares and some dreams the European Union may be a super-power or even a super-state, but its feet are firmly stuck in public international law. States are members, treaties form the foundations, the European Communities are international organisations and diplomatic relations are maintained inside and out.

***

Diplomatic relations

Do you want to experience the public international law roots of the European Communities and the European Union?

For comparison and before you advance, read the ‘global’ codification of diplomatic law, the Vienna Convention on Diplomatic Relations, available for instance here:

http://untreaty.un.org/ilc/texts/instruments/english/conventions/9_1_1961.pdf


***

Current treaty

The general reference to the privileges and immunities of the European Community is Article 291 of the Treaty establishing the European Community (TEC), in the latest consolidated version of the treaties OJEU 29.12.2006 C 321 E/172:

Article 291 TEC

The Community shall enjoy in the territories of the Member States such privileges and immunities as are necessary for the performance of its tasks, under the conditions laid down in the Protocol of 8 April 1965 on the privileges and immunities of the European Communities. The same shall apply to the European Central Bank, the European Monetary Institute, and the European Investment
Bank.


***

Protocol currently

Annexed to the EC and Euratom treaties we find Protocol (No 36) on the privileges and immunities of the European Communities, OJEU 29.12.2006 C 321 E/318.


***

Lisbon Treaty

Despite the existing add-ons of supranational decision-making and representative democracy somewhat enhanced, the Treaty of Lisbon still stands firmly on the foundations of treaty law and diplomatic relations, far from a federal basic law.

The Treaty of Lisbon would replace the European Community by the European Union and it would drop the historic European Monetary Institute from the text, but the substance of the treaty provision on privileges and immunities is found alive and well in Article 343 of the Treaty on the Functioning of the European Union (TFEU), OJEU 9.5.2008 C 115/194.

In the consolidated Lisbon Treaty the protocol has drawn a new number, and it appears slightly updated as Protocol (No 7) on the privileges and immunities of the European Union (page 266 ff).

If anybody still needs convincing, the newest version of the Protocol still starts with the words ‘The High Contracting Parties’, hardly part of a federal vocabulary.


***


Overview: Privileges and immunities

The Lisbon Treaty may enter into force during the legislative term from 2009 to 2014, but the European Parliament elections between 4 and 7 June 2009 are going to take place under the current Treaty on European Union (TEU) and the Treaty establishing the European Community (TEC).

We continue our presentation of EU electoral law and the status of the European Parliament and its members (MEPs) with themes that seem a bit neglected by the member states and even by the EU institutions.

Ahead of the European elections it feels natural to proceed on the basis of the Protocol in force (although normally this blog dedicates more space to the Lisbon Treaty provisions than to the existing ones).

We start with a brief overview of Protocol (No 36) on the privileges and immunities of the European Communities, OJEU 29.12.2006 C 321 E/318.

The ‘raison d’être’ of the privileges and immunities is functional:
… these Communities and the European Investment Bank shall enjoy in the territories of the Member States such privileges and immunities as are necessary for the performance of their tasks …


Here are the Chapter headings for a cursory glance at the contents:

Chapter I Property, funds, assets and operations of the European Community
Chapter II Communications and laissez-passer
Chapter III Members of the European Parliament
Chapter IV Representatives of the Member States taking part in the work of the institutions of the European Communities
Chapter V Officials and other servants of the European Communities
Chapter VI Privileges and immunities of missions of third countries accredited to the European Communities
Chapter VII General provisions


***

With the European elections in June 2009 in mind, we advance towards the status of the European Parliament and the MEPs in the following posts.


Ralf Grahn

European election law

How much of a joke is a uniform electoral code for the European elections?

It took from 1952 to 1979 to get the first directly elected Assembly for the European Communities.


Article 190(4) of the Treaty establishing the European Community sets out a uniform election code as the first option:

4. The European Parliament shall draw up a proposal for elections by direct universal suffrage in accordance with a uniform procedure in all Member States or in accordance with principles common to all Member States.

The Council shall, acting unanimously after obtaining the assent of the European Parliament, which shall act by a majority of its component members, lay down the appropriate provisions, which it shall recommend to Member States for adoption in accordance with their respective constitutional requirements.


***

The substance remains the same in the Lisbon Treaty, in Article 223(1) of the Treaty on the Functioning of the European Union (TFEU).


***

Repeated failure

The European Parliament’s efforts have been in vain, because both currently and under the Treaty of Lisbon the decision has to be made by a unanimous Council and approved (ratified) by every member state.


***

Common principles


On Eur-Lex we find the rudiments of the historically important ‘sui generis’ decision 76/787/ECSC, EEC, Euratom: Decision of the representatives of the Member States meeting in the council relating to the Act concerning the election of the representatives of the Assembly by direct universal suffrage (published OJ 8.10.1976 L 278/1) here:

http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:41976D0787:EN:HTML


Here is the available text:
DECISION (76/787/ECSC, EEC, Euratom)
THE COUNCIL
composed of the representatives of the Member States and acting unanimously,
Having regard to Article 21 (3) of the Treaty establishing the European Coal and Steel Community,
Having regard to Article 138 (3) of the Treaty establishing the European Economic Community,
Having regard to Article 108 (3) of the Treaty establishing the European Atomic Energy Community,
Having regard to the proposal from the Assembly,
Intending to give effect to the conclusions of the European Council in Rome on 1 and 2 December 1975, that the election of the Assembly should be held on a single date within the period May/June 1978,
Has laid down the provisions annexed to this Decision which it recommends to the Member States for adoption in accordance with their respective constitutional requirements.
This Decision and the provisions annexed hereto shall be published in the Official Journal of the European Communities.
The Member States shall notify the Secretary-General of the Council of the European Communities without delay of the completion of the procedures necessary in accordance with their respective constitutional requirements for the adoption of the provisions annexed to this Decision.
This Decision shall enter into force on the day of its publication in the Official Journal of the European Communities.
Udfærdiget i Bruxelles, den tyvende september nitten hundrede og seksoghalvfjerds.
Geschehen zu Brüssel am zwanzigsten September neunzehnhundertsechsundsiebzig.
Done at Brussels on the twentieth day of September in the year one thousand nine hundred and seventy-six.
Fait à Bruxelles, le vingt septembre mil neuf cent soixante-seize.
Arna dhéanamh sa Bhruiséil, an fichiú lá de mhí Mhéan Fómhair, míle naoi gcéad seachtó a sé.
Fatto a Bruxelles, addì venti settembre millenovecentosettantasei.
Gedaan te Brussel, de twintigste september negentienhonderd zesenzeventig.
For Rådet for De europæiske Fællesskaber
Für den Rat der Europäischen Gemeinschaften
For the Council of the European Communities
Pour le Conseil des Communautés européennes
Thar ceann Chomhairle na gComhphobal Eorpach
Per il Consiglio delle Comunità europee
Voor de Raad van de Europese Gemeenschappen
Formand
Der Präsident
The President
Le président
An t-Uachtaran
Il Presidente
De Voorzitter >PIC FILE= "T0010317">
>PIC FILE= "T0010318">
>PIC FILE= "T0010319">
***

The text of the corrigendum (published OJ 25.11.1976 L 326/32) is unavailable.

We see that provisions have been annexed to the decision, but the annexes are unavailable.

No searches yield documents based on this document.


***

The end of the beginning

With the help of literature we find out that there is an amending decision, which we find.

Council Decision 2002/772/EC, Euratom of 25 June and 23 September 2002 amending the Act concerning the election of the representatives of the European Parliament by direct universal suffrage, annexed to the decision 76/787/ECSC, EEC, Euratom (published OJ 21.10.2002 L 283/1).

The amending Council decision is available here:

http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2002:283:0001:0004:EN:PDF


We have a text amending not readily available annexes and without a consolidated text. Still, some common principles emerge from the amendments where whole Articles appear:

Here are some common principles in shortened form:

· Proportional representation based on the list system or the single transferable vote
· A preferential list system as an option for member states
· Direct universal suffrage with free and secret vote
· Member states decide constituencies or electoral areas without generally affecting the proportional nature of the voting system
· Maximum national threshold of votes cast is 5 per cent
· National ceiling for candidates’ campaign expenses is possible
· MEPs enjoy the privileges and immunities applicable to them according to the Protocol of 8 April 1965 on the privileges and immunities of the European Communities
· From the 2004 European elections an MEP’s office is incompatible with that of a member of a national parliament
· National provisions rule the electoral procedure in each member state, subject to the provisions of the Act

***

Prayer

How much of a joke is a uniform electoral code for the European elections? It comes closer to being a disgrace. The same goes for the presentation.


Electoral laws come fairly close to constitutions in most jurisdictions. The acts concerning citizens’ right to vote are important historically and for their democratic value.

Not only has the European Union failed to enact a uniform electoral code. The little there is can be described as incomplete, partly unreadable and far from accessible.

The European Parliament, at least, should start taking citizens’ political rights seriously. The next step could be to publish the existing electoral principles in full for all interested citizens to read.

European elections ─ It’s your choice!


Ralf Grahn

European Parliament composition under Lisbon Treaty

What happens if the Lisbon Treaty enters into force, when the European Parliament has been elected under the modified Nice Treaty rules? Here are some suggestion for discussion.


***


On 4 to 7 June 2009 the citizens of the European Union elect the members of the European Parliament for the term from 2009 to 2014 according to the Treaty of Nice as amended by the 2003 Act of Accession. The total number of MEPs will be 736 and yesterday’s blog post “European Parliament: Number of MEPs 2009” presented how many members will be elected from each member state.

The uncertain fate of the Treaty of Lisbon complicates the life of the EU institutions. In case the amending treaty enters into force, a number of questions have to be decided for the treaty to take full effect. This means that implementing decisions have to be prepared.

This uncertain state of affairs is disturbing with regard to the appointment of the Commission President and the rest of the new Commission. It also affects the composition of the European Parliament.


***

Consolidated Lisbon Treaty

The basic provision of the Treaty of Lisbon on the European Parliament is Article 14 of the Treaty on European Union (TEC). The provision was published in the consolidated (readable) version of the treaties in the Official Journal of the European Union (OJEU) 9.5.2008 C 115/22─23:



Article 14 TEU

1. The European Parliament shall, jointly with the Council, exercise legislative and budgetary functions. It shall exercise functions of political control and consultation as laid down in the Treaties. It shall elect the President of the Commission.

2. The European Parliament shall be composed of representatives of the Union's citizens. They shall not exceed seven hundred and fifty in number, plus the President. Representation of citizens shall be degressively proportional, with a minimum threshold of six members per Member State. No Member State shall be allocated more than ninety-six seats.

The European Council shall adopt by unanimity, on the initiative of the European Parliament and with its consent, a decision establishing the composition of the European Parliament, respecting the principles referred to in the first subparagraph.

3. The members of the European Parliament shall be elected for a term of five years by direct universal suffrage in a free and secret ballot.

4. The European Parliament shall elect its President and its officers from among its members.


***

European Parliament composition

Paragraph 2 of Article 14 TEU lays down the main parameters for the composition of the European Parliament.

The maximum number of representatives is 751, although the member states chose to ‘respect’ the maximum number of 750 by expressing it as ‘seven hundred and fifty in number, plus the President’. (Declaration No 4 attributes the additional seat to Italy.)

In June 2009 the citizens elect 736 MEPs, but if the Lisbon Treaty enters into force during the legislature, their number jumps to 751, an addition of 15.


***

European Council decision

The more exact distribution of seats would not remain in the treaty. Article 14(2) TEU mentions the total maximum, the minimum and maximum per country and the “principle” of degressive proportionality.

The Lisbon Treaty fails to present an objective formula, but it manages to avoid the need for a treaty revision and ratifications by entrusting the decision to the European Council.

A unanimous decision by the European Council is required. The decision is taken on the initiative of the European Parliament, and it needs the consent of the EP.



***

European Parliament resolution

Originally the Lisbon Treaty was meant to enter into force on 1 January 2009, ahead of the European Parliament elections.

On this basis the European Council requested and received an ‘initiative’ from the European Parliament.

The European Parliament adopted a resolution on 11 October 2007 on the composition of the European Parliament,), P6_TA(2007)0429, available here:

http://www.europarl.europa.eu/sides/getDoc.do?type=TA&language=EN&reference=P6-TA-2007-0429


The resolution was based on a report by Alain Lamassoure and Adrian Severin, A6-0351/2007. The report set out the number of seats to be allocated for the 2009─2014 parliamentary term in the form of a draft decision by the European Council, based on the coming Article 9a TEU in the coming Treaty of Lisbon (Article 14 TEU in the consolidated treaty).

In practice, the European Parliament distributed the additional seats to achieve an improved balance with regard to population numbers. Here is the text of Article 2 of the adopted resolution:


Article 2

Pursuant to Article 1, the number of representatives in the European Parliament elected in each Member State is hereby set as follows, with effect from the beginning of the 2009-2014 parliamentary term:

Belgium 22
Bulgaria 18
Czech Republic 22
Denmark 13
Germany 96
Estonia 6
Greece 22
Spain 54
France 74
Ireland 12
Italy 72
Cyprus 6
Latvia 9
Lithuania 12
Luxembourg 6
Hungary 22
Malta 6
Netherlands 26
Austria 19
Poland 51
Portugal 22
Romania 33
Slovenia 8
Slovakia 13
Finland 13
Sweden 20
United Kingdom 73

***

Winners and losers

We compare with the numbers actually in force for the 2009 European elections. Germany was the only loser because of the maximum allocation of 96 seats (now 99 representatives). Bulgaria, Latvia, Malta (because of the raised minimum), the Netherlands, Poland, Slovenia and the United Kingdom stood to gain one seat each, France, Austria and Sweden two seats each and Spain would receive four additional seats.


***

European Council

The Lisbon Treaty Declaration (No 5) on the political agreement by the European Council concerning the draft Decision on the composition of the European Parliament promised that the European Council will give its political agreement on the revised draft Decision of the composition of the European Parliament for the legislative period 2009─2014, based on the proposal from the European Parliament.

The European Council gave its political blessing to the proposal of the European Parliament, with the addition that Italy was allocated the extra seat as agreed during the intergovernmental conference (Presidency Conclusions 14 December 2007; Council document 16616/1/07, point 5):

5. In accordance with Declaration No 5 annexed to the Final Act of the Intergovernmental Conference, the European Council gives its political agreement on the draft Decision establishing the composition of the European Parliament which the European Parliament politically approved on 11 October 2007, as revised in accordance with Declaration No 4 annexed to the Final Act. Accordingly, the wording of whereas clauses Nos 2 and 3 of the draft Decision will be adapted to reflect the wording in Article 9 A(2) of the EU Treaty as amended by the Lisbon Treaty and, in the table contained in Article 2, the figure relating to Italy will be "73". This Decision will be adopted as soon as possible after the entry into force of the Lisbon Treaty, in accordance with the procedure laid down in the second subparagraph of Article 9 A(2) of the EU Treaty as amended by the Lisbon Treaty. The European Council invites the Member States to adopt the necessary domestic measures as soon as possible so that, when this Decision comes into force, the national legislation necessary for its implementation is in place in time for the European Parliament elections for the 2009-2014 parliamentary term.


***

United Kingdom?

Nothing in the political agreement of the European Council changed the draft presented by the European Parliament, with the exception of the additional seat allocated to Italy.

This means that the United Kingdom would have 73 seats under the Treaty of Lisbon (one more than in the June 2009 elections).

Still Priollaud and Siritzky, in Le traité de Lisbonne (page 64) present the number as 74 (plus 2).


If someone has better information either way, I am grateful for comments.


***

Transitory measures

Because of the embarrassing situation concerning the Lisbon Treaty, the European Council agreed on some principles to be followed in case the treaty enters into force. One of them was the attached Declaration on transitional measures concerning the composition of the European Parliament (Presidency Conclusions 11 and 12 December 2008; Council document 17271/08, page 14):


Declaration of the European Council

Treaty of Lisbon – Transitional measures concerning the composition of the European Parliament

In the event that the Treaty of Lisbon enters into force after the European elections of June 2009, transitional measures will be adopted as soon as possible, in accordance with the necessary legal procedures, in order to increase, until the end of the 2009-2014 legislative period, in conformity with the numbers provided for in the framework of the IGC which approved the Treaty of Lisbon, the number of MEPs of the twelve Member States for which the number of MEPs was set to increase. Therefore, the total number of MEPs will rise from 736 to 754 until the end of the 2009-2014 legislative period. The objective is that this modification should enter into force, if possible, during the year 2010.


***

Necessary legal procedures

Additional seats

In June 2009 Europeans elect 736 MEPs. If the Lisbon Treaty enters into force during the legislative term, the eleven countries gaining seats according to the EP resolution plus Italy would be entitled to additional seats for the rest of the term.

Since the European Council has only been able to give its political blessing, the legally binding decision would be made as soon as possible, when the European Council can make one under the new treaty rules.

Internally the situation is complicated. These countries have to devise national rules to elect potential representatives in June or plan later extraordinary elections (by-elections) to fill the extra seats, taking into account the electoral districts.


Disappearing seats

The German situation is interesting, too. Under the existing rules, three more MEPs are going to be elected than provided for under the Lisbon Treaty. The European Council points to this by obliquely mentioning to the provisional rise in the number of MEPs, above the maximum allowed by the Lisbon Treaty.

The European Council is up against the maximum number 751. It does not specify how to achieve this objective, but it hopes that this modification can enter into force during 2010.


This is but one of the many implementing issues, where the Council (Secretariat) should enter into open dialogue on alternative solutions. Lacking that, here are my tentative views on the options:

Germany is the least favoured nation in relation to population size as it is, and one can symphatise with the European Council’s wish to facilitate the election procedures there and to avoid sending home three elected representatives.

The European Union has a tradition of exceeding the maximum numbers in enlargement cases, where the accession treaties have modified the numbers temporarily. The accession treaties have been concluded unanimously and ratified by all member states.

In principle, the European Union could latch on to an accession agreement, which has to be ratified anyway. This would be expedient, since the substance requires one short sentence, but the timing may prove to be problematic.

When does the Lisbon Treaty enter into force (if it does)? When is the following accession agreement ready to be signed and when does it enter into force?

I am inclined to think that the most elegant way would be a separate agreement between the member states amending the Lisbon Treaty for the rest of the legislature.

The amendment procedure (Article 48 TEU) would have to be followed, but I am not aware of any legal obstacles to a conditional amendment right away. This would save time.

If the member states wait until it is known that the Lisbon Treaty enters into force, there will be little time to complete the procedures.

If the European Union waits even longer, until the Lisbon Treaty has entered into force, they need to follow the treaty revision procedures of the amended Article 48 TEU.

There are clear references to entry into force of treaty amendments after ratification by all member states according to their constitutional provisions. I doubt if provisional application before entry into force could be used by analogy with Article 300 TEC or .Article 218(5) TFEU.


***

My suggestion for discussion is that the member states start the procedures to convene an intergovernmental (mini)conference without undue delay in order to have the provisional amendment enter into force on the same day as the Lisbon Treaty (if it does).


Ralf Grahn

Freedom to move and reside ─ UK style

Head of Legal in ‘Geert Wilders: and another thing …’ has commented:

http://headoflegal.blogspot.com/2009/02/geert-wilders-and-another-thing.html

So have many others on the UK Home Office’s refusal to let Dutch MP Geert Wilders into the country.

But a few more posts may be needed in order to get the member states and the Commission into active mode.

We are speaking about free movement of people, one of the cornerstones of the internal market, indeed the European Union.

We are speaking about the so called Citizenship Directive 2004/38/EC.

And we are speaking of the freedom of expression and information enshrined by the European Convention for the Protection of Human Rights and Fundamental Freedoms, the Charter the United Kingdom has not opted out of.

What does the Home Office do?

It declares a supposedly peaceful man ‘persona non grata’ as a risk for public security.

***

The right to move and reside freely is subject only to a few exceptions, and as exemptions they must be interpreted narrowly. Public policy, public security and public health cannot be defined unilaterally by governments to cover every facet of human life they happen to dislike. Otherwise there would be no rule of law, only arbitrariness. Sometimes one wonders at the ability of governments to undo themselves.

***

European competition

Without vigilant media and bloggers European governments would harm themselves far more often and far more seriously than presently.

But knowingly or unknowingly they disregard the rule of law all too often.

Perhaps a measure of the open method of coordination is called for(?) Benchmarking, best (worst) practice and the like.

Let me suggest that the UK Home Office on the freedom to move and reside and French President Nicolas Sarkozy on the virtues of the internal market constitute the benchmarks for incredible government action within an EU context for the rest of the year.

Let us compare later gaffes with these to see what we come up with during the rest of 2009. We live in interesting times.


Ralf Grahn

European Parliament: Number of MEPs 2009

We have gone through a bewildering array of numbers of the members of the European Parliament in the media during these last years. Proposals by the European Convention, intergovernmental conferences leading to the Constitutional Treaty and the Treaty of Lisbon, ten new EU member states in 2004 and two newcomers in 2007. And then back to the Treaty of Nice, when the Lisbon Treaty was stalled, and the accession treaty.


***


Where do we stand ahead of the European elections in June 2009?

Since the Lisbon Treaty has not entered into force, we have to look at the current treaties, last published in a consolidated (readable) form in the Official Journal of the European Union (OJEU) 29.12.2006 C 321 E.

Article 189 of the Treaty establishing the European Community (TEC) reads like this (page 130):


Article 189 TEC

The European Parliament, which shall consist of representatives of the peoples of the States brought together in the Community, shall exercise the powers conferred upon it by this Treaty.

The number of Members of the European Parliament shall not exceed 732.


***

Fine, but …

The correct number of members of the European Parliament (MEPs) to be elected is 732, right?

But why does the Wikipedia article European Parliament election, 2009, tell us that elections to the European Parliament will be held in the 27 member states of the European Union (EU) between 4 and 7 June 2009. 736 Members of the European Parliament (MEPs) will be elected by proportional representation to represent some 500,000,000 Europeans, making these the biggest trans-national elections in history?

See: http://en.wikipedia.org/wiki/European_Parliament_election,_2009


If we believe the Wikipedia article, we would unlawfully elect four more MEPs than the mximum number allowed by the treaty.

We can soon see that the Wikipedia number is no typo “while 736 MEPs will be elected under the Nice rules, this number would have increased to 751 if the Lisbon Treaty were in force”. Even the charts below give the total number as 736.


***

Try to verify

A general reference to the Treaty of Nice does not bring us very far, so we have to look around for explanations.

The following treaty provision is Article 190 TEC, with a discrete footnote telling us: Article amended by the 2003 Act of Accession. See Appendix at the end of this publication.

Article 190(1) TEC tells us that the representatives in the European Parliament of the peoples of the States brought together in the Community shall be elected by direct universal suffrage.

The second paragraph of Article 190 TEC looks more promising, starting with the words:
The number of representatives elected in each Member State shall be as follows: ---

If we are alert, we find 25 member states mentioned. We just have to be steadfast enough to count, have a memory good enough to realize that Bulgaria and Romania are missing, and humble enough to follow the hint to look up the Annex (in a consolidation published three days before the latest accession).


***

Voilà !

Trudge to the end of the consolidation and there you find the Appendix on page 325. Two pages later the text begins under the heading Amendments to primary legislation further to the accession of the Republic of Bulgaria and Romania to the European Union, followed by:

Further to the entry in force of the Treaty concerning the accession of the Republic of Bulgaria and Romania to the European Union, the following articles shall be amended as set out below.

We do not have to proceed far to find the following point of interest:

3. With effect from the start of the 2009-2014 term, in Article 190(2) the first subparagraph shall be replaced by the following:

‘2. The number of representatives elected in each Member State shall be as follows:


***

Rejoice!

Having found a possible solution to the problem of four surplus MEPs, we are not even going to quibble that the Appendix left the misleading maximum number in place.

For the benefit of more seriously inclined EU citizens we are going to show our gratitude towards public communications official by presenting our own consolidation of the consolidated version of Article 190 TEC.

This is how it should look in everybody’s books ahead of the European elections for the 2009 to 2014 term:





Article 190 TEC as amended by the 2003 Act of Accession

1. The representatives in the European Parliament of the peoples of the States brought together
in the Community shall be elected by direct universal suffrage.

2. The number of representatives elected in each Member State shall be as follows:

Belgium 22
Bulgaria 17
Czech Republic 22
Denmark 13
Germany 99
Estonia 6
Greece 22
Spain 50
France 72
Ireland 12
Italy 72
Cyprus 6
Latvia 8
Lithuania 12
Luxembourg 6
Hungary 22
Malta 5
Netherlands 25
Austria 17
Poland 50
Portugal 22
Romania 33
Slovenia 7
Slovakia 13
Finland 13
Sweden 18
United Kingdom 72.

In the event of amendments to this paragraph, the number of representatives elected in each Member State must ensure appropriate representation of the peoples of the States brought together in the Community.

3. Representatives shall be elected for a term of five years.

4. The European Parliament shall draw up a proposal for elections by direct universal suffrage in accordance with a uniform procedure in all Member States or in accordance with principles common to all Member States.

The Council shall, acting unanimously after obtaining the assent of the European Parliament, which shall act by a majority of its component members, lay down the appropriate provisions, which it shall recommend to Member States for adoption in accordance with their respective constitutional requirements.

5. The European Parliament, after seeking an opinion from the Commission and with the approval of the Council acting by a qualified majority, shall lay down the regulations and general conditions governing the performance of the duties of its Members. All rules or conditions relating to the taxation of Members or former Members shall require unanimity within the Council.


***

Think about it ─ The truth is out there

We have now repeated the experiment of arriving at the same number of MEPs to be elected in June for the 2009 to 2014 term, despite the misleading treaty number. Our individual numbers for each country tally with those of Wikipedia.

More importantly, we have demonstrated the blessings of living in societies dedicated to the rule of law, openness and transparency.

Basic information and final decisions at least are usually found somewhere, if we care to dig. Globally we are among the lucky ones, although public information could be more accessible at times.

***

Remaining doubt

We could marry the Princess and live happily ever after, if not bothered by the doubt that our heads of government or state had cooked up something at their December 2008 powwow …


Ralf Grahn


P.S. Even if I think that public information should offer the hard facts first, such as laws, regulations, decisions, proposals, I understand that most people are interested in what happens in the real world. For the European election campaigns you can turn to Julien Frisch for coverage:
http://julienfrisch.blogspot.com/

EU law basics: European Parliamentary elections 2009?

Yesterday I tried to find easily accessible information about the upcoming European Parliamentary elections, to be held in June 2009. My chosen prism was that of an EU citizen politically interested enough to find out or a student with an assigned task to present the basics of the electoral system.

In other words, I imagine that I was more diligent than the usual reader, but not rigorous enough to unearth every buried nugget. The information had to be accessible.


***

What did I find?

In short, the Commission web pages refer to the newly launched portal of the European Parliament ‘European Elections ─ It’s your choice!’.

The Council links to the same web page, but if you look for ‘elections 2009’ with the general search function you end up with a lot of valuable information about elections elsewhere than in the European Union.

Clearly, among the EU institutions the directly elected European Parliament is the place to go if you want tangible information. At first appearances, it seemed right. The EP has just launched web pages aimed at informing the public (but when I retried a moment ago, the pages were down).

Anyway, yesterday there were pages with short texts about the upcoming European elections and links to pages on the elections in the individual member states.

For the more serious students there was little to find on two fundamental aspects: 1) the European level rules on the EP elections and 2) the rights and obligations of the members of the European Parliament we are about to elect.

I have little against hoopla ─ light snippets and visual entertainment ─ if public information still covers the basics. But without at least referrals to the laws, regulations and administrative decisions public information becomes mere infotainment.


***

EP ─ It’s your choice!

There is no need for my criticism to blacken the EP election page makers’ day for too long. First of all, the launch of the election pages is a huge step. All the needed knowledge is readily available in-house. Now it is just a question of making some serious additional information available to the public.


***

Wikipedia

In my view, the EU institutions did less well than Wikipedia in covering the basics of the European elections 2009. This said with some reservations.

I believe that I found articles in ten EU languages (out of 23 official ones and a host of regional and minority languages).


Wikipedia was all right if you read the English or the Spanish version (if I remember correctly), but in many languages the articles were mere stubs, in dire need of writing and editing.

But even the best articles were somewhat short on the harder legal basics. As a fan of Wikipedia, I hope for continued efforts, especially with regard to the ‘smaller’ languages.


***

National sites

I worked through basic Google searches on the European Parliamentary elections 2009 in just a few EU languages.

There were, of course, discussions by and about candidates, but my primary interest was to see what governments and scholars had to offer on the (European) rules concerning the EP elections 2009 as well as the rights and duties of MEPs.

The United Kingdom offered clear official information about national election law, but I think that the only exact reference to an EU document was in Spanish (referring to the status of the voting rights of residents who are citizens of other EU countries). A Maltese page referred to an EU web page on the status of such intra-EU ex-pats.

The search was far from extensive, but it tends to support the view that there is a missing link between the European level and national government information.

If the European Parliament does not fill this void, who will?


Ralf Grahn

EU Law: European Parliament elections

Direct elections to the European Parliament were a decisive victory for European citizens in 1976, with the first directly elected EP in action since 1979.

But attempts to enact a uniform election procedure have failed miserably.

So has the European Parliament in informing the public, if I did not miss something. I failed to find any relevant information about the common principles or the duties and rights of MEPs on the European Parliament’s web pages dedicated to the European elections 2009.

***

Current treaty

Paragraphs 4 and 5 of Article 190 of the Treaty establishing the European Community (TEC) set out the ambition to achieve an electoral code for the elections to the European Parliament.

The aim is expressed as a uniform procedure in all member states, but the fall-back option is the ‘or in accordance with principles common to all Member States’.
.

Paragraph 5 relates to the status and functions of the members of the European Parliament (MEPs).

Article 190(4) and (5) as published in the latest consolidated version of the treaties, OJEU 29.12.2006 C 321 E/132:



4. The European Parliament shall draw up a proposal for elections by direct universal suffrage in accordance with a uniform procedure in all Member States or in accordance with principles common to all Member States.

The Council shall, acting unanimously after obtaining the assent of the European Parliament, which shall act by a majority of its component members, lay down the appropriate provisions, which it shall recommend to Member States for adoption in accordance with their respective constitutional requirements.

5. The European Parliament, after seeking an opinion from the Commission and with the approval of the Council acting by a qualified majority, shall lay down the regulations and general conditions governing the performance of the duties of its Members. All rules or conditions relating to the taxation of Members or former Members shall require unanimity within the Council.


***


Original Lisbon Treaty

Article 2, point 117 of the original Treaty of Lisbon (ToL) changed the heading of what became Part Six of the Treaty on the Functioning of the European Union (TFEU). Point 178 repealed Article 189 TEC and point 179 deleted the first three paragraphs of Article 190 TEC (cf. Article 14 of the amended Treaty on European Union).

This left the fourth and fifth paragraphs of Article 190 to be amended as presented i the Lisbon Treaty, OJEU 17.12.2007 C 306/101:


INSTITUTIONAL AND FINANCIAL PROVISIONS

177) Part Five shall be renumbered ‘PART SIX’ and its heading shall be replaced by ‘INSTITUTIONAL AND FINANCIAL PROVISIONS’.

EUROPEAN PARLIAMENT

178) Article 189 shall be repealed.

179) Article 190 shall be amended as follows:

(a) paragraphs 1, 2 and 3 shall be deleted and paragraphs 4 and 5 shall be renumbered 1 and 2 respectively;

(b) paragraph 4, renumbered 1, shall be amended as follows:

(i) in the first subparagraph, the words ‘for elections by direct universal suffrage’ shall be replaced by the following: ‘to lay down the provisions necessary for the election of its members by direct universal suffrage’;

(ii) the second subparagraph shall be replaced by the following:

‘The Council, acting unanimously in accordance with a special legislative procedure and after obtaining the consent of the European Parliament, which shall act by a majority of its component members, shall lay down the necessary provisions. These provisions shall enter into force following their approval by the Member States in accordance with their respective constitutional requirements.’;

(c) in paragraph 5, renumbered 2, the words ‘, acting by means of regulations on its own initiative in accordance with a special legislative procedure’ shall be inserted after ‘The European Parliament’.


***

Consolidated Lisbon Treaty

In the consolidated version of the Lisbon Treaty more constitutional aspects of the institutions are found in the Treaty on European Union Title III, with Article 14 TEU laying down the basic provisions concerning the European Parliament.

More mundane provisions relating to the institutions are collected in Part Six Institutional and financial provisions of the Treaty on the Functioning of the European Union (TFEU), with Title 1 setting out institutional provisions. The first Chapter is headed The institutions, which begins with Section 1 The European Parliament.

Article 223 TFEU takes over and amends the leftovers, paragraphs 4 and 5 of Article 190 TEC, OJEU 9.5.2008 C 115/149:


PART SIX
INSTITUTIONAL AND FINANCIAL PROVISIONS

TITLE I
INSTITUTIONAL PROVISIONS

CHAPTER 1
THE INSTITUTIONS

SECTION 1
THE EUROPEAN PARLIAMENT

Article 223 TFEU
(ex Article 190(4) and (5) TEC)

1. The European Parliament shall draw up a proposal to lay down the provisions necessary for the election of its Members by direct universal suffrage in accordance with a uniform procedure in all Member States or in accordance with principles common to all Member States.

The Council, acting unanimously in accordance with a special legislative procedure and after obtaining the consent of the European Parliament, which shall act by a majority of its component Members, shall lay down the necessary provisions. These provisions shall enter into force following their approval by the Member States in accordance with their respective constitutional requirements.

2. The European Parliament, acting by means of regulations on its own initiative in accordance with a special legislative procedure after seeking an opinion from the Commission and with the approval of the Council, shall lay down the regulations and general conditions governing the performance of the duties of its Members. All rules or conditions relating to the taxation of Members or former Members shall require unanimity within the Council.


***

Comment

Direct elections were foreseen in the Treaty of Rome, but it took until 1976 for the member states to agree on a directly elected Assembly (Decision 76/787). The first directly elected European Parliament began its activities in 1979.

The uniform electoral code remains the first option in Article 223(1) TFEU, but these efforts have failed, and only principles common to all Member States have been agreed, leading to huge variations between the member states. The elections are not even held on the same day in the whole European Union.

Even if the wording on the Council decision has changed, the essentials remain as cumbersome as before: Unanimous decision and approval by every member state.

The second paragraph has been reworded to underline the internal autonomy of the European Parliament.

The Treaty of Lisbon offers little new. The same can be said about the European Parliament’s web pages about the European elections 2009.

I failed to find any basic information about the common rules for the elections, or about the general conditions governing the performance of the duties of the MEPs to be elected.


Ralf Grahn

EU procurement law: Non-priority services (Annex II B)

The full force of the procurement rules of the European Community (European Union) applies to the public service contracts with the most potential for cross-border trade in the internal market. Contract value distinguishes the larger contracts through threshold amounts. The nature of services separates so called priority services from non-priority ones.

Yesterday’s blog post looked at priority services listed in Annex II A of the Procurement Directive 2004/18/EC. Today we deal with non-priority services, listed in Annex II B.


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Article 21

Article 21 of the Procurement Directive deals with the second tier of public service contracts, the non-priority services considered to be less suitable for normal procurement procedures:


(CHAPTER III
Arrangements for public service contracts)

Article 21
Service contracts listed in Annex II B

Contracts which have as their object services listed in Annex II B shall be subject solely to Article 23 and Article 35(4).


***

Definition of service contract

Public service contracts are defined in Article 1(2)(d) of the Procurement Directive 2004/18/EC:

(d) ‘Public service contracts’ are public contracts other than public works or supply contracts having as their object the provision of services referred to in Annex II.

A public contract having as its object both products and services within the meaning of Annex II shall be considered to be a ‘public service contract’ if the value of the services in question exceeds that of the products covered by the contract.

A public contract having as its object services within the meaning of Annex II and including activities within the meaning of Annex I that are only incidental to the principal object of the contract shall be considered to be a public service contract.


***

Non-priority services explained


Recital 19 of the Procurement Directive explains the Upstairs ─ Downstairs two-tier solution adopted with regard to public service contracts.

The detailed provisions of the Procurement Directive do not encompass all services. For the time being only the contracts with most potential for cross-border trade in the internal market were made subject to the application of the detailed award procedures.

The distinctions have been made on two grounds. Contract value means that the largest contracts are included (thresholds). The type or nature of service determines the applicable rules.

For non-priority services the application of the Procurement Directive is limited.

The current situation is not the final word on the matter. The Commission monitors developments in the internal market, which may lead to legislative proposals in the future:





(19) As regards public service contracts, full application of this Directive should be limited, for a transitional period, to contracts where its provisions will permit the full potential for increased cross-frontier trade to be realised. Contracts for other services need to be monitored during this transitional period before a decision is taken on the full application of this Directive. In this respect, the mechanism for such monitoring needs to be defined. This mechanism should, at the same time, enable interested parties to have access to the relevant information.


***

Applicable provisions

As always, the principles of the Treaty establishing the European Community (TEC) apply to the actions of contracting authorities, as interpreted by the Court of Justice of the European Communities (ECJ) with regard to the requirements of transparency and non-discrimination.

The concrete provisions of the Procurement Directive 2004/18/EC applicable to non-priority services are Article 23 and Article 35(4).



Article 23

Article 23 of the Procurement Directive 2004/18/EC on technical specifications applies even to non-priority services. Primarily European standards should be used and in a non-discriminatory manner:



Article 23
Technical specifications

1. The technical specifications as defined in point 1 of Annex VI shall be set out in the contract documentation, such as contract notices, contract documents or additional documents. Whenever possible these technical specifications should be defined so as to take into account accessibility criteria for people with disabilities or design for all users.

2. Technical specifications shall afford equal access for tenderers and not have the effect of creating unjustified obstacles to the opening up of public procurement to competition.

3. Without prejudice to mandatory national technical rules, to the extent that they are compatible with Community law, the technical specifications shall be formulated:

(a) either by reference to technical specifications defined in Annex VI and, in order of preference, to national standards transposing European standards, European technical approvals, common technical specifications, international standards, other technical reference systems established by the European standardization bodies or — when these do not exist — to national standards, national technical approvals or national technical specifications relating to the design, calculation and execution of the works and use of the products. Each reference shall be accompanied by the words ‘or equivalent’;

(b) or in terms of performance or functional requirements; the latter may include environmental characteristics. However, such parameters must be sufficiently precise to allow tenderers to determine the subject-matter of the contract and to allow contracting authorities to award the contract;

(c) or in terms of performance or functional requirements as mentioned in subparagraph (b), with reference to the specifications mentioned in subparagraph (a) as a means of presuming conformity with such performance or functional requirements;

(d) or by referring to the specifications mentioned in subparagraph (a) for certain characteristics, and by referring to the performance or functional requirements mentioned in subparagraph (b) for other characteristics.

4. Where a contracting authority makes use of the option of referring to the specifications mentioned in paragraph 3(a), it cannot reject a tender on the grounds that the products and services tendered for do not comply with the specifications to which it has referred, once the tenderer proves in his tender to the satisfaction of the contracting authority, by whatever appropriate means, that the solutions which he proposes satisfy in an equivalent manner the requirements defined by the technical specifications.

An appropriate means might be constituted by a technical dossier of the manufacturer or a test report from a recognised body.

5. Where a contracting authority uses the option laid down in paragraph 3 to prescribe in terms of performance or functional requirements, it may not reject a tender for works, products or services which comply with a national standard transposing a European standard, with a European technical approval, a common technical specification, an international standard or a technical reference system established by a European standardisation body, if these specifications address the performance or functional requirements which it has laid down.

In his tender, the tenderer must prove to the satisfaction of the contracting authority and by any appropriate means that the work, product or service in compliance with the standard meets the performance or functional requirements of the contracting authority.

An appropriate means might be constituted by a technical dossier of the manufacturer or a test report from a recognised body.

6. Where contracting authorities lay down environmental characteristics in terms of performance or functional requirements as referred to in paragraph 3(b) they may use the detailed specifications, or, if necessary, parts thereof, as defined by European or (multi-) national eco-labels, or by and any other eco-label, provided that:

— those specifications are appropriate to define the characteristics of the supplies or services that are the object of the contract,

— the requirements for the label are drawn up on the basis of scientific information,

— the eco-labels are adopted using a procedure in which all stakeholders, such as government bodies, consumers, manufacturers, distributors and environmental organisations can participate, and

— they are accessible to all interested parties.

Contracting authorities may indicate that the products and services bearing the eco-label are presumed to comply with the technical specifications laid down in the contract documents; they must accept any other appropriate means of proof, such as a technical dossier of the manufacturer or a test report from a recognised body.

7. ‘Recognised bodies’, within the meaning of this Article, are test and calibration laboratories and certification and inspection bodies which comply with applicable European standards.

Contracting authorities shall accept certificates from recognised bodies established in other Member States.

8. Unless justified by the subject-matter of the contract, technical specifications shall not refer to a specific make or source, or a particular process, or to trade marks, patents, types or a specific origin or production with the effect of favouring or eliminating certain undertakings or certain products. Such reference shall be permitted on an exceptional basis, where a sufficiently precise and intelligible description of the subject-matter of the contract pursuant to paragraphs 3 and 4 is not possible; such reference shall be accompanied by the words ‘or equivalent’.


***

Article 35(4)

In the context of Chapter VI on rules on advertising and transparency and its Section 1 on publication of notices, Article 35 concerns notices. The contracting authority has an obligation to provide a notice of the results of the award or at least statistical information for non-priority services, meant to enable the Commission to monitor developments and to assess the needs for legislative initiatives:.

The fourth paragraph sets out the following obligations for the contracting authorities:


4. Contracting authorities which have awarded a public contract or concluded a framework agreement shall send a notice of the results of the award procedure no later than 48 days after the award of the contract or the conclusion of the framework agreement.

In the case of framework agreements concluded in accordance with Article 32 the contracting authorities are not bound to send a notice of the results of the award procedure for each contract based on that agreement.

Contracting authorities shall send a notice of the result of the award of contracts based on a dynamic purchasing system within 48 days of the award of each contract. They may, however, group such notices on a quarterly basis. In that case, they shall send the grouped notices within 48 days of the end of each quarter.

In the case of public contracts for services listed in Annex II B, the contracting authorities shall indicate in the notice whether they agree to its publication. For such services contracts the Commission shall draw up the rules for establishing statistical reports on the basis of such notices and for the publication of such reports in accordance with the procedure laid down in Article 77(2).

Certain information on the contract award or the conclusion of the framework agreement may be withheld from publication where release of such information would impede law enforcement or otherwise be contrary to the public interest, would harm the legitimate commercial interests of economic operators, public or private, or might prejudice fair competition between them.


***


Annex II B non-priority services

Annex II B lists the so called non-priority services mentioned in Article 21 of the Procurement Directive 2004/18/EC. Actually, all the services mentioned in points 17 to 26 are just concrete examples for the benefit of the reader, because point 27 Other services means that all services not listed as priority services in Annex II A are considered to be non-priority services.

Since an overview is intended here, the non-priority services in Annex II B are presented without the binding CPC references or the helpful CPV (Common Procurement Vocabulary) codes:


17 Hotel and restaurant services

18 Rail transport services

19 Water transport services

20 Supporting and auxiliary transport services

21 Legal services

22 Personnel placement and supply services, except employment contracts

23 Investigation and security services, except armoured car services

24 Education and vocational education services

25 Health and social services

26 Recreational, cultural and sporting services, except contracts for the acquisition, development, production or co-production of programmes by broadcasting organisations and contracts for broadcasting time.

27 Other services


***

Guidance on non-priority services


The Commission has issued an Interpretative Communication on the Community law applicable to contract awards not or not fully subject to the provisions of the Public Procurement Directives
(OJEU 1.8.2006 C 179/2).

The Communication gives guidance for two different situations, where the Procurement Directives do not apply fully to a procurement procedure.

The first concerns contracts which fall below the procurement thresholds and the second one relates to today’s theme, Annex II B services.



Ralf Grahn

EU Law: Solidarity clause

Solidarity is the mortar of the European construction work. The Lisbon Treaty’s solidarity clause would strengthen the ties between member states and citizens of the European Union.


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Original Lisbon Treaty

Article 2, point 176 of the original Treaty of Lisbon (ToL) inserts a new Title VII Solidarity clause into Part Five External action by the Union as well as a new Article 188r (OJEU 17.12.2007 C 306/100─101):


SOLIDARITY CLAUSE

176) The following new Title VII and new Article 188 R shall be inserted:

‘TITLE VII
SOLIDARITY CLAUSE

Article 188 R

1. The Union and its Member States shall act jointly in a spirit of solidarity if a Member State is the object of a terrorist attack or the victim of a natural or man-made disaster. The Union shall mobilise all the instruments at its disposal, including the military resources made available by the Member States, to:

(a) — prevent the terrorist threat in the territory of the Member States;

— protect democratic institutions and the civilian population from any terrorist attack;

— assist a Member State in its territory, at the request of its political authorities, in the event of a terrorist attack;

(b) assist a Member State in its territory, at the request of its political authorities, in the event of a natural or man-made disaster.

2. Should a Member State be the object of a terrorist attack or the victim of a natural or man-made disaster, the other Member States shall assist it at the request of its political authorities. To that end, the Member States shall coordinate between themselves in the Council.

3. The arrangements for the implementation by the Union of the solidarity clause shall be defined by a decision adopted by the Council acting on a joint proposal by the Commission and the High Representative of the Union for Foreign Affairs and Security Policy. The Council shall act in accordance with Article 15b(1) of the Treaty on European Union where this decision has defence implications. The European Parliament shall be informed.

For the purposes of this paragraph and without prejudice to Article 207, the Council shall be assisted by the Political and Security Committee with the support of the structures developed in the context of the common security and defence policy and by the Committee referred to in Article 61 D; the two committees shall, if necessary, submit joint opinions.

4. The European Council shall regularly assess the threats facing the Union in order to enable the Union and its Member States to take effective action.’.


***

Consolidated Lisbon Treaty

Article 188r is renumbered Article 222 of the Treaty on the Functioning of the European Union (TFEU) in the consolidated version of the amending treaties. The references to provisions referred to are renumbered as well (OJEU 9.5.2008 C 115/148):


TITLE VII
SOLIDARITY CLAUSE

Article 222 TFEU

1. The Union and its Member States shall act jointly in a spirit of solidarity if a Member State is the object of a terrorist attack or the victim of a natural or man-made disaster. The Union shall mobilise all the instruments at its disposal, including the military resources made available by the Member States, to:

(a) — prevent the terrorist threat in the territory of the Member States;

— protect democratic institutions and the civilian population from any terrorist attack;

— assist a Member State in its territory, at the request of its political authorities, in the event of a terrorist attack;

(b) assist a Member State in its territory, at the request of its political authorities, in the event of a natural or man-made disaster.

2. Should a Member State be the object of a terrorist attack or the victim of a natural or man-made disaster, the other Member States shall assist it at the request of its political authorities. To that end, the Member States shall coordinate between themselves in the Council.

3. The arrangements for the implementation by the Union of the solidarity clause shall be defined by a decision adopted by the Council acting on a joint proposal by the Commission and the High Representative of the Union for Foreign Affairs and Security Policy. The Council shall act in accordance with Article 31(1) of the Treaty on European Union where this decision has defence implications. The European Parliament shall be informed.

For the purposes of this paragraph and without prejudice to Article 240, the Council shall be assisted by the Political and Security Committee with the support of the structures developed in the context of the common security and defence policy and by the Committee referred to in Article 71; the two committees shall, if necessary, submit joint opinions.

4. The European Council shall regularly assess the threats facing the Union in order to enable the Union and its Member States to take effective action.


***

Comment

Solidarity was described as the mortar of European integration in the blog post on civil protection, and Article 222 TFEU can be read in conjunction with Article 196 TFEU.

***

The solidarity clause was introduced by the European Convention in two parts. Article I-42 of the draft Constitution was named the Solidarity clause and it was situated in Chapter II Specific provisions under Title V Exercise of Union competence in the ‘constitutional’ part of the draft. Article III-231 came under the Chapter VIII headline Implementation of the solidarity clause. The proposal within the Convention came from the working group on defence.

The corresponding provisions in the Constitutional Treaty were Articles I-43 and III-329.

The Lisbon Treaty Article 222 TFEU merges the two provisions, but the amending treaty lifted out the general provisions, the common foreign and security policy (CFSP) and the common security and defence policy (CSDP) provisions from the (coming) TFEU into the Treaty on European Union (TEU), leaving the solidarity clause Article 222 TFEU somewhat lonely in the context of external action by the Union (Part Five). Perhaps the location has become less constitutional in concept.

***

Anyway, the solidarity clause is not the only manifestation of solidarity in the Treaty of Lisbon. Here are a few examples:

In the TEU Preamble the Heads of State desire to deepen the solidarity between their peoples while respecting their history, their culture and their traditions.

Article 2 TEU mentions solidarity among the founding values of the European Union, common to the member states.

According to Article 3(3) TEU the European Union shall promote economic, social and territorial cohesion, and solidarity among member states.

Article 24(2) TEU, within the framework of the principles and objectives of its external action, mandates the European Union to conduct, define and implement a common foreign and security policy, based on the development of mutual political solidarity among Member States, the identification of questions of general interest and the achievement of an ever-increasing degree of convergence of Member States' actions.

In Article 24(3) TEU the member states undertake to support the Union's external and security policy actively and unreservedly in a spirit of loyalty and mutual solidarity and to comply with the Union's action in this area. The provision continues with the obligation for the member states to work together to enhance and develop their mutual political solidarity and to refrain from any action which is contrary to the interests of the Union or likely to impair its effectiveness as a cohesive force in international relations (loyal cooperation).

Member states have an obligation of aid and assistance if a member state is the victim of armed aggression on its territory, according to Article 42(7) TEU.

In the context of the area of freedom, security and justice, the a common policy on asylum, immigration and external border control is based on solidarity between member states (Article 67(2) TFEU). Article 80 repeats the principles of solidarity and fair sharing in the Chapter on border checks, asylum and immigration.

Under economic policy, pursuant to Article 122 TFEU, the Council can decide , in a spirit of solidarity between Member States, upon measures appropriate to the economic situation, in particular if severe difficulties arise in the supply of certain products, notably in the area of energy.

The objectives of the European Union’s energy policy are expressed in a spirit of solidarity between member states (Aricle 194 TFEU). One fresh assessment of reality comes from the former executive director of the International Energy Agency Claude Mandil in an interview for EurActiv: “Several EU governments did not show solidarity over the recent gas crisis.”

Read the interview at:

http://www.euractiv.com/en/energy/energy-solidarity-just-words-iea-chief/article-179261

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It looks like progress is being made, at least if the Lisbon Treaty enters into force, but the ‘de facto’ solidarity evoked by Robert Schuman has been long in coming and it is still very much an ongoing work.
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Article 222 TFEU covers two groups of threats: 1) from terrorists, and 2) natural or man-made disasters.

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The member states have an obligation to assist, if requested to do so.

The foundations for effective action are less unambiguous.

The member states coordinae between themselves in the Council. Unanimity is required if the decision has defence implications (Article 31(1) TEU).

The Council takes the implementing decisions on a joint proposal by the Commission and the High Representative.

Declaration 37 on Article 222 of the Treaty on the Functioning of the European Union adds the sobering thought that none of the provisions of Article 222 is intended to affect the right of another member state to choose the most appropriate means to comply with its own solidarity obligation towards that member state. ─ Far from a rock-hard guarantee.

Without stepping on the toes of the Committee of the Permanent Representatives of the Member States (Coreper; Article 240 TFEU), the intergovernmental (Council) Political and Security Committee shall assist the Council. It is supported by the structures developed in the context of the common security and defence policy and by the Internal Security Committee (referred to in Article 71 TFEU).


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Politically in force

Following the vicious terrorist attacks in Madrid 11 March 2004, the Heads of State or Government of the Member States of the European Union, and of the States acceding to the Union on 1 May, declared their firm intention to act in the spirit of the solidarity clause laid down in Article 42 of the draft Treaty establishing a Constitution for Europe, and to act jointly in a spirit of solidarity if one of them is the victim of a terrorist attack, by mobilising all the instruments at their disposal, including military resources (European Council, Declaration on solidarity against terrorism, 25 March 2004).


Ralf Grahn

EU procurement law: Priority services (Annex II A)

A functioning internal market is the mobilising idea behind the evolving EU rules for public procurement. Even if our economies have become increasingly based on services, cross-border trade in services has been lagging behind.

The Procurement Directive 2004/18/EC marks a step on the way, with coordinated procurement procedures for larger contracts of a nature adapted to competition more than locally.

In this post we look at these so called priority services, listed in Annex II A.



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Article 20

The European Community (European Union) Procurement Directive, officially Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts (OJ 30.4.2004 L 134/114), replaced the old Services Procurement Directive, Council Directive 92/50/EEC of 18 June 1992 relating to the coordination of procedures for the award of public service contracts (OJ 24.7.1992 L 209/1).


Article 20 of the Procurement Directive 2004/18/EC distinguishes the so called priority services, which are subject to the detailed provisions of the Directive:


CHAPTER III
Arrangements for public service contracts

Article 20
Service contracts listed in Annex II A

Contracts which have as their object services listed in Annex II A shall be awarded in accordance with Articles 23 to 55.


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Definition of service contract

Public service contracts are defined in Article 1(2)(d) of the Procurement Directive 2004/18/EC:

(d) ‘Public service contracts’ are public contracts other than public works or supply contracts having as their object the provision of services referred to in Annex II.

A public contract having as its object both products and services within the meaning of Annex II shall be considered to be a ‘public service contract’ if the value of the services in question exceeds that of the products covered by the contract.

A public contract having as its object services within the meaning of Annex II and including activities within the meaning of Annex I that are only incidental to the principal object of the contract shall be considered to be a public service contract.


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Priority services

Recital 19 of the Procurement Directive explains the Upstairs ─ Downstairs solution concerning public service contracts.

The detailed provisions of the Procurement Directive do not encompass all services. For the time being the contracts with most potential for cross-border trade in the internal market were made subject to the application of the detailed award procedures.

The distinctions have been made on two grounds. Contract value means that the largest contracts are included (thresholds). The type or nature of service determines the applicable rules.

The current situation is not the final word on the matter. The Commission monitors developments in the internal market, which may lead to legislative proposals in the future:



(19) As regards public service contracts, full application of this Directive should be limited, for a transitional period, to contracts where its provisions will permit the full potential for increased cross-frontier trade to be realised. Contracts for other services need to be monitored during this transitional period before a decision is taken on the full application of this Directive. In this respect, the mechanism for such monitoring needs to be defined. This mechanism should, at the same time, enable interested parties to have access to the relevant information.


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Applicable provisions

The priority services are listed in Annex II A. These public service contracts are awarded in accordance with Articles 23 to 55 of the Procurement Directive.

Here is an overview of the applicable provisions relating to priority services:


CHAPTER IV
Specific rules governing specifications and contract documents

Article 23 — Technical specifications
Article 24 — Variants
Article 25 — Subcontracting
Article 26 — Conditions for performance of contracts
Article 27 — Obligations relating to taxes, environmental protection, employment protection provisions and working conditions


CHAPTER V
Procedures

Article 28 — Use of open, restricted and negotiated procedures and of competitive dialogue
Article 29 — Competitive dialogue
Article 30 — Cases justifying use of the negotiated procedure with prior publication of a contract notice
Article 31 — Cases justifying use of the negotiated procedure without publication of a contract notice
Article 32 — Framework agreements
Article 33 — Dynamic purchasing systems
Article 34 — Public works contracts: particular rules on subsidized housing schemes


CHAPTER VI
Rules on advertising and transparency


Section 1 — Publication of notices

Article 35 — Notices
Article 36 — Form and manner of publication of notices
Article 37 — Non-mandatory publication


Section 2 — Time limits

Article 38 — Time limits for receipt of requests to participate and for receipt of tenders
Article 39 — Open procedures: Specifications, additional documents and information


Section 3 — Information content and means of transmission

Article 40 — Invitations to submit a tender, participate in the dialogue or negotiate
Article 41 — Informing candidates and tenderers


Section 4 — Communication

Article 42 — Rules applicable to communication


Section 5 — Reports

Article 43 — Content of reports



CHAPTER V I I
Conduct of the procedure


S e c t i o n 1 — G e n e r a l p r o v i s i o n s

Article 44 — Verification of the suitability and choice of participants and award of contracts


S e c t i o n 2 — C r i t e r i a f o r q u a l i t a t i v e s e l e c t i o n

Article 45 — Personal situation of the candidate or tenderer
Article 46 — Suitability to pursue the professional activity
Article 47 — Economic and financial standing
Article 48 — Technical and/or professional ability
Article 49 — Quality assurance standards
Article 50 — Environmental management standards
Article 51 — Additional documentation and information
Article 52 — Official lists of approved economic operators and certification by bodies established under public or private law


S e c t i o n 3 — A w a r d o f t h e c o n t r a c t

Article 53 — Contract award criteria
Article 54 — Use of electronic auctions
Article 55 — Abnormally low tenders


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Annex II A priority services

Annex II concerning public service contracts is divided into two parts, Annex II A for priority services and Annex II B for non-priority services.

The priority services mentioned in Annex II A are (as amended by Commission Regulation (EC) No 213/2008 of 28 November 2007, OJEU 15.3.2008 L 74/1). In this overview they are given without the applicable CPC nomenclature (or the helpful CPV, Common Procurement Vocabulary references):


1 Maintenance and repair services

2 Land transport services (except for rail transport services covered by category 18), including armoured car services, and courier services, except transport of mail

3 Air transport services of passengers and freight, except transport of mail

4 Transport of mail by land (except for rail transport services covered by category 18) and by air

5 Telecommunications services

6 Financial services:

(a) Insurance services

(b) Banking and investment services (except financial services in connection with the issue, sale, purchase or transfer of securities or other financial instruments, and central bank services, or excluded: services involving the acquisition or rental, by whatever financial procedures, of land, existing buildings, or other immovable property or concerning rights thereon; nevertheless, financial services supplied at the same time as, before or after the contract of acquisition or rental, in whatever form, are subject to the Directive).

7 Computer and related services

8 Research and development services (except research and development services other than those where the benefits accrue exclusively to the contracting authority and/or contracting entity for its use in the conduct of its own affairs on condition that the service provided is wholly remunerated by the contracting authority and/or contracting entity).

9 Accounting, auditing and bookkeeping services

10 Market research and public opinion polling services

11 Management consulting services (except arbitration and conciliation services) and related services

12 Architectural services; engineering services and integrated engineering services; urban planning and landscape engineering services; related scientific and technical consulting services; technical testing and analysis services

13 Advertising services

14 Building-cleaning services and property management services

15 Publishing and printing services on a fee or contract basis

16 Sewage and refuse disposal services; sanitation and similar services


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The next procurement post on this blog is going to take a look at non-priority services (Annex II B).



Ralf Grahn

EU Law: International relations ─ Implementation debate needed

The EU Treaty of Lisbon modernises the existing provisions on the European Community’s relations with international organisations and third countries.

When the European Community is merged into the European Union, the High Representative becomes the main responsible for the day to day running of the EU’s international relations and the official in charge of the European Union’s delegations in third countries and at international organisations.

Because of the remaining split between CFSP (and CSDP) issues and other external relations, the related provision on the European External Action Service is still to be found in the Treaty on European Union.

If the Treaty of Lisbon enters into force on 1 January 2010 ─ as the governments of the EU member states seem to wish ─ it is high time for the Council to open up the public discussion on all issues of implementation.



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Current treaty

Articles 302, 303 and 304 of the Treaty establishing the European Community (TEC) contain basic provisions on the international relations of the EC.

Article 302 TEC relates to the United Nations (UN) and its agencies, but it also contains a general reference to all international organisations, of which some may be global in scope.

Cooperation with the pan-European Council of Europe is mentioned in Article 303 TEC.

The Organisation for Economic Cooperation and Development (OECD) is mentioned separately in Article 304 TEC.

The text of Articles 302 to 304 TEC as published in the latest consolidated version of the treaties (OJEU 29.12.2006 C 321 E/177─178):


Article 302 TEC

It shall be for the Commission to ensure the maintenance of all appropriate relations with the organs of the United Nations and of its specialised agencies.

The Commission shall also maintain such relations as are appropriate with all international organisations.

Article 303 TEC

The Community shall establish all appropriate forms of cooperation with the Council of Europe.


Article 304 TEC

The Community shall establish close cooperation with the Organisation for Economic Cooperation and Development, the details of which shall be determined by common accord.


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Original Lisbon Treaty

Article 2, point 175 of the original Treaty of Lisbon (ToL) introduces a new Title and inserts an Article 188p to replace Articles 302 to 304 TEC. The new Article 188q transforms the existing Commission representations in third countries and at international organisations into EU delegations (OJEU 17.12.2007 C 306/99─100):



THE UNION'S RELATIONS WITH INTERNATIONAL ORGANISATIONS AND THIRD COUNTRIES AND UNION DELEGATIONS

175) The following Title VI and Articles 188 P and 188 Q shall be inserted, with Article 188 P replacing Articles 302 to 304:

‘TITLE VI
THE UNION'S RELATIONS WITH INTERNATIONAL ORGANISATIONS AND THIRD COUNTRIES AND UNION DELEGATIONS

Article 188 P

1. The Union shall establish all appropriate forms of cooperation with the organs of the United Nations and its specialised agencies, the Council of Europe, the Organisation for Security and Cooperation in Europe and the Organisation for Economic Cooperation and Development.

The Union shall also maintain such relations as are appropriate with other international organisations.

2. The High Representative of the Union for Foreign Affairs and Security Policy and the Commission shall be instructed to implement this Article.


Article 188 Q

1. Union delegations in third countries and at international organisations shall represent the Union.

2. Union delegations shall be placed under the authority of the High Representative of the Union for Foreign Affairs and Security Policy. They shall act in close cooperation with Member States' diplomatic and consular missions.’.


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Consolidated Lisbon Treaty

The new Title VI appears in the consolidated version of the Treaty of Lisbon together with the renumbered Articles 220 and 221 of the Treaty on the Functioning of the European Union (TFEU), published OJEU 9.5.2008 C 115/147:

TITLE VI
THE UNION'S RELATIONS WITH INTERNATIONAL ORGANISATIONS AND THIRD
COUNTRIES AND UNION DELEGATIONS

Article 220 TFEU
(ex Articles 302 to 304 TEC)

1. The Union shall establish all appropriate forms of cooperation with the organs of the United Nations and its specialised agencies, the Council of Europe, the Organisation for Security and Cooperation in Europe and the Organisation for Economic Cooperation and Development.

The Union shall also maintain such relations as are appropriate with other international organisations.

2. The High Representative of the Union for Foreign Affairs and Security Policy and the Commission shall be instructed to implement this Article.



Article 221 TFEU

1. Union delegations in third countries and at international organisations shall represent the Union.

2. Union delegations shall be placed under the authority of the High Representative of the Union for Foreign Affairs and Security Policy. They shall act in close cooperation with Member States' diplomatic and consular missions.


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Comments

External action (Part Five of the Treaty on the Functioning of the European Union) manages to bring most of the international provisions under one roof, with the notable failure of the Lisbon Treaty to dislodge the common foreign and security policy (CFSP), including the common security and defence policy (CSDP) from the amended Treaty on European Union (TEU).

Articles 220 and 221 TFEU correspond with Articles III-327 and III-328 of the Constitutional Treaty.

The new TFEU Title VI The Union’s relations with international organisations and third countries and Union delegations simplifies reading by the new heading and by collecting the most important international organisations from three different provisions into one. The Organisation for Security and Cooperation in Europe (OSCE) is added to the organisations specially mentioned in Article 220 TFEU.

The merger of the European Community into the European Union, which is endowed with explicit legal personality (Article 47 TEU), is highlighted by the role of the High Representative, called on to implement these international relations and to wield authority over the EU delegations in third countries and at international organisations. Cf. Article 220(2) and Article 221(2) TFEU.

The existing European Community representations become European Union delegations (Article 221 TFEU).

These TFEU provisions reflect the development into a European External Action Service, which assists the High Representative. The EEAS is to be established by a Council decision (Article 27 TEU).

Thus, the European External Action Service is one of the questions requiring preparatory work in order to implement the Treaty of Lisbon, should it enter into force. The Council needs to report on the state of play and alternative solutions concerning this and other implementing issues to facilitate a constructive debate with the European Parliament, national parliaments, think-tanks, researchers and the public.

Perhaps the European Parliament and the Commission, even if on their last legs, could prod the Council into action?


Ralf Grahn

EU procurement: Reserved contracts

The European Community (European Union) Procurement Directive 2004/18/EC offers room for social considerations, by giving the member states an option to reserve public contracts for handicapped persons.

We look at the relevant Directive provision and its explanation. Sweden and Finland present different legislative solutions at national level.

We then broaden our outlook by a few examples of activities within broader or related contexts: responsible purchasing, sustainable procurement and socially responsible procurement.



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Article 19

As an exception to ordinary award procedures public contracts can be reserved for sheltered workshops and sheltered employment programmes for handicapped persons. Article 19 of the Procurement Directive 2004/18/EC leaves this option to the member states.

This exemption has to fulfil objective criteria: Most of the employees are handicapped persons, who, by reason of the nature or the seriousness of their disabilities, cannot carry on occupations under normal conditions.

Even if only sheltered workshops or employment programmes are eligible, the rest of the Procurement Directive 2004/18/EC applies to the contract award procedure. It has to be non-discriminatory and transparent, including a reference to Article 19 in the contract notice:



S e c t i o n 4
Special arrangement

Article 19
Reserved contracts

Member States may reserve the right to participate in public contract award procedures to sheltered workshops or provide for such contracts to be performed in the context of sheltered employment programmes where most of the employees concerned are handicapped persons who, by reason of the nature or the seriousness of their disabilities, cannot carry on occupations under normal conditions.

The contract notice shall make reference to this provision.


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Reasons for special arrangement

Recital 28 of the Procurement Directive presents the reasons for creating the special arrangement, whereby contract notices can be directed solely at sheltered workshops or employment programmes:

(28) Employment and occupation are key elements in guaranteeing equal opportunities for all and contribute to integration in society. In this context, sheltered workshops and sheltered employment programmes contribute efficiently towards the integration or reintegration of people with disabilities in the labour market. However, such workshops might not be able to obtain contracts under normal conditions of competition. Consequently, it is appropriate to provide that Member States may reserve the right to participate in award procedures for public contracts to such workshops or reserve performance of contracts to the context of sheltered employment programmes.


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National level examples


Sweden

National circumstances vary. In Sweden a number of organisations consulted expressed misgivings about the effects of a provision on reserved contracts, given existing arrangements for employment of disabled persons.

This was discussed in the Government Bill (Regeringens proposition 2006/07:128 Ny lagstiftning om offentlig upphandling och upphandling inom områdena vatten, energi, transporter och posttjänster, under 9.3 Reserverade kontrakt on page 185 to 187).
The Swedish Government decided not to include a provision on reserved contracts in its proposal, with the following conclusions:


Utredningen föreslår att bestämmelserna om reserverade kontrakt genomförs i den svenska lagstiftningen. Flera remissinstanser har emellertid invänt att en bestämmelse om reserverade kontrakt kräver ytterligare preciseringar bl.a. såvitt avser hur begreppen ”skyddade verkstäder” och ”program för skyddad anställning” skall tolkas. Det har även framförts att förslaget skulle kunna få ogynnsamma marknadsstörande effekter.

Regeringen anser att utredningens förslag för närvarande inte bör genomföras.


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Finland

Finland has made use of the option to reserve the award of certain public contracts to sheltered workshops or employment programmes. Section 14 of the Act on Public Contracts (348/2007) is practically identical to Article 19 of the Procurement Directive:


Section 14 — Reserving public contracts for sheltered workshops

Contracting authorities may reserve the right to participate in public contract award procedures in favour of sheltered workshops or provide for such contracts to be performed in the context of sheltered employment programmes where most of the employees concerned are people with disabilities who, by reason of the nature or the seriousness of their disabilities, cannot carry on occupations under normal conditions. The public contract notice must indicate that the contract is reserved for sheltered workshops or programmes.


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Responsible purchasing

A broader outlook is provided under the term responsible purchasing, which includes issues such as professional standards for purchasing staff, environmental considerations, ethical and social issues as well as the role of small and medium-sized enterprises (SMEs).


The Scottish Parliament has approved a Responsible purchasing strategy, which may be of interest elsewhere in Europe:



http://www.scottish.parliament.uk/corporate/procurement/docs/Strategy-FINAL.pdf


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Sustainable procurement

Even if the Scottish Parliament preferred the term responsible purchasing (rather than sustainable procurement) Local Governments for Sustainability ICLEI campaign for sustainable procurement. You can find information about their Procura+ campaign and other activities on:


http://www.iclei-europe.org/index.php?id=procurement




Socially responsible procurement (SRP)

The ICLEI Respiro project is aimed at socially responsible procurement. You can access information here:

http://www.respiro-project.eu/index.php?id=conference



Ralf Grahn

EU Law: Euro exchange-rate system agreements

The EU Treaty of Lisbon would move the provision on international agreements concerning the euro exchange-rate system under the Title on international agreements, where these agreements form an exception to the normal procedures with regard to international agreements.




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Current treaty

The existing Article 111 of the Treaty establishing the European Community (TEC) is situated in Title VII Economic and monetary policy, Chapter 2 Monetary policy; OJEU 29.12.2006 C 321 E/89–90.

The first paragraph concerns formal agreements on an exchange rate system for the ecu (euro) in relation to non-Community currencies.

The second paragraph provides for general orientations for exchange-rate policies in relation to non-Community currencies (if there is no binding exchange-rate system).

The third paragraph sets out a special legal base for negotiating and concluding agreements on monetary or foreign‑exchange regime matters with third countries or international organisations.

Paragraph 4 refers to the external representation of the economic and monetary union (EMU).

Paragraph 5 rules the residual right of member states to negotiate in international bodies and conclude international agreements.

From the latest consolidated version of the treaties, here is the text of Article 111:




Article 111 TEC

1. By way of derogation from Article 300, the Council may, acting unanimously on a recommendation from the ECB or from the Commission, and after consulting the ECB in an endeavour to reach a consensus consistent with the objective of price stability, after consulting the European Parliament, in accordance with the procedure in paragraph 3 for determining the arrangements, conclude formal agreements on an exchange-rate system for the ecu in relation to non-Community currencies. The Council may, acting by a qualified majority on a recommendation from the ECB or from the Commission, and after consulting the ECB in an endeavour to reach a consensus consistent with the objective of price stability, adopt, adjust or abandon the central rates of the ecu within the exchange-rate system. The President of the Council shall inform the European Parliament of the adoption, adjustment or abandonment of the ecu central rates.

2. In the absence of an exchange-rate system in relation to one or more non-Community currencies as referred to in paragraph 1, the Council, acting by a qualified majority either on a recommendation from the Commission and after consulting the ECB or on a recommendation from the ECB, may formulate general orientations for exchange-rate policy in relation to these currencies. These general orientations shall be without prejudice to the primary objective of the ESCB to maintain price stability.

3. By way of derogation from Article 300, where agreements concerning monetary or foreign‑exchange regime matters need to be negotiated by the Community with one or more States or international organisations, the Council, acting by a qualified majority on a recommendation from the Commission and after consulting the ECB, shall decide the arrangements for the negotiation and for the conclusion of such agreements. These arrangements shall ensure that the Community expresses a single position. The Commission shall be fully associated with the negotiations.

Agreements concluded in accordance with this paragraph shall be binding on the institutions of the Community, on the ECB and on Member States.

4. Subject to paragraph 1, the Council, acting by a qualified majority on a proposal from the Commission and after consulting the ECB, shall decide on the position of the Community at international level as regards issues of particular relevance to economic and monetary union and on its representation, in compliance with the allocation of powers laid down in Articles 99 and 105.

5. Without prejudice to Community competence and Community agreements as regards economic and monetary union, Member States may negotiate in international bodies and conclude international agreements.



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Original Lisbon Treaty


Article 2, point 174 of the original Treaty of Lisbon inserted an Article 188o into the Title on international agreements (OJEU 17.12.2007 C 306/99):


174) An Article 188 O shall be inserted, with the wording of paragraphs 1 to 3 and 5 of Article 111 and paragraph 1 shall be split into two subparagraphs, the last two sentences becoming the second subparagraph; the Article shall be amended as follows:

(a) paragraph 1, first subparagraph, shall be replaced by the following:
‘
1. By way of derogation from Article 188 N(1), the Council, either on a recommendation from the European Central Bank or on a recommendation from the Commission and after consulting the European Central Bank, in an endeavour to reach a consensus consistent with the objective of price stability, may conclude formal agreements on an exchange-rate system for the euro in relation to the currencies of third States. The Council shall act unanimously after consulting the European Parliament and in accordance with the procedure provided for in paragraph 3.’.

In the second subparagraph, the words ‘on a recommendation from the ECB or from the Commission and after consulting the ECB in an endeavour to’ shall be replaced by the following: ‘either on a recommendation from the European Central Bank or on a recommendation from the Commission, and after consulting the European Central Bank, in an endeavour to’;

(b) in paragraph 2, the words ‘non-Community currencies’ shall be replaced by ‘currencies of third States’;

(c) in paragraph 3, in the first sentence of the first subparagraph, the reference to Article 300 shall be replaced by a reference to Article 188 N and the word ‘States’ shall be replaced by ‘third States’, and the second subparagraph shall be deleted;

(d) paragraph 5 shall be renumbered ‘4’.


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Consolidated Lisbon Treaty

Renumbered Article 219 of the Treaty on the Functioning of the European Union (TFEU) and made readable once again, the provision looks like this in the consolidated version of the Lisbon Treaty (OJEU 9.5.2008 C 115/146–147):


Article 219 TFEU
(ex Article 111(1) to (3) and (5) TEC)

1. By way of derogation from Article 218, the Council, either on a recommendation from the European Central Bank or on a recommendation from the Commission and after consulting the European Central Bank, in an endeavour to reach a consensus consistent with the objective of price stability, may conclude formal agreements on an exchange-rate system for the euro in relation to the currencies of third States. The Council shall act unanimously after consulting the European Parliament and in accordance with the procedure provided for in paragraph 3.

The Council may, either on a recommendation from the European Central Bank or on a recommendation from the Commission, and after consulting the European Central Bank, in an endeavour to reach a consensus consistent with the objective of price stability, adopt, adjust or abandon the central rates of the euro within the exchange-rate system. The President of the Council shall inform the European Parliament of the adoption, adjustment or abandonment of the euro central rates.

2. In the absence of an exchange-rate system in relation to one or more currencies of third States as referred to in paragraph 1, the Council, either on a recommendation from the Commission and after consulting the European Central Bank or on a recommendation from the European Central Bank, may formulate general orientations for exchange-rate policy in relation to these currencies. These general orientations shall be without prejudice to the primary objective of the ESCB to maintain price stability.

3. By way of derogation from Article 218, where agreements concerning monetary or foreign exchange regime matters need to be negotiated by the Union with one or more third States or international organisations, the Council, on a recommendation from the Commission and after consulting the European Central Bank, shall decide the arrangements for the negotiation and for the conclusion of such agreements. These arrangements shall ensure that the Union expresses a single position. The Commission shall be fully associated with the negotiations.

4. Without prejudice to Union competence and Union agreements as regards economic and monetary union, Member States may negotiate in international bodies and conclude international agreements.


***

Comments

The bulk of Article 111 TEC has been moved from monetary policy to international agreements to become Article 219 TFEU.

We see that concluding formal agreements on an exchange-rate system for the euro and agreements concerning monetary or foreign exchange regime matters derogates from the general procedure for the conclusion of EU international agreements in Article 218 TFEU.

A minor detail is that ‘third States’ is a rare hybrid expression, since the amending treaties normally refer to (Member) States and to ‘third countries’.

Article 219 TFEU is one of the treaty provisions which will not apply to member states with a derogation (which do not fulfil the conditions for the adoption of the euro), according to Article 139(2)(g), so member states means ones whose currency is the euro. .

In substance Article 219 TFEU corresponds with Article III-326 of the Constitutional Treaty.



Ralf Grahn

Rights and freedoms for Russians

The BBC reports that EU spars with Russia over rights:

http://news.bbc.co.uk/2/hi/europe/7874110.stm

Why put such a negative spin on it?

Surely, human rights and fundamental freedoms as well as the rule of law for Russians must be advancing by bounds and leaps.

European Commission President José Manuel Barroso is promoting these causes in Russia and Prime Minister Vladimir Putin for Russians elsewhere.

With these heavyweights behind them Russians are indeed a chosen people.


Ralf Grahn

France does not need wildcat strikes

France does not need wildcat strikes to vent protectionist sentiments – it has Nicolas Sarkozy as President.

Read EUbusiness: Sarkozy under fire in Europe for ‘protectionism’ (7 February 2009), available at

http://www.eubusiness.com/news-eu/1233941522.08

Recently hailed by many (including himself) as the great leader of Europe, Sarkozy shows a mind-boggling lack of understanding of or a total disregard for the basic tenets of European integration.

Good grief!

Ralf Grahn

EU Law: Concluding international agreements

The merger of the European Community into the European Union facilitates the conclusion of international agreements, which is reflected in the general procedure for concluding these agreements in the Treaty of Lisbon. The legitimacy of international agreements is enhanced by the strengthening of the role of the European Parliament, but. CFSP agreements and certain other agreements still require unanimous Council decisions and leave the EP to be consulted.



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Current treaty

Article 300 of the Treaty establishing the European Community provides for the procedure leading to the conclusion of international agreements between the EC and third countries or international organisations.

The Commission conducts the negotiations, but the Council decides on every major step from the opening of negotiations onward, as shown in the latest consolidated version of the treaties, published OJEU 29.12.2006 C 321 E/176–177:

Article 300 TEC

1. Where this Treaty provides for the conclusion of agreements between the Community and one or more States or international organisations, the Commission shall make recommendations to the Council, which shall authorise the Commission to open the necessary negotiations. The Commission shall conduct these negotiations in consultation with special committees appointed by the Council to assist it in this task and within the framework of such directives as the Council may issue to it.

In exercising the powers conferred upon it by this paragraph, the Council shall act by a qualified majority, except in the cases where the first subparagraph of paragraph 2 provides that the Council shall act unanimously.

2. Subject to the powers vested in the Commission in this field, the signing, which may be accompanied by a decision on provisional application before entry into force, and the conclusion of the agreements shall be decided on by the Council, acting by a qualified majority on a proposal from the Commission. The Council shall act unanimously when the agreement covers a field for which unanimity is required for the adoption of internal rules and for the agreements referred to in Article 310.

By way of derogation from the rules laid down in paragraph 3, the same procedures shall apply for a decision to suspend the application of an agreement, and for the purpose of establishing the positions to be adopted on behalf of the Community in a body set up by an agreement, when that body is called upon to adopt decisions having legal effects, with the exception of decisions supplementing or amending the institutional framework of the agreement.

The European Parliament shall be immediately and fully informed of any decision under this paragraph concerning the provisional application or the suspension of agreements, or the establishment of the Community position in a body set up by an agreement.

3. The Council shall conclude agreements after consulting the European Parliament, except for the agreements referred to in Article 133(3), including cases where the agreement covers a field for which the procedure referred to in Article 251 or that referred to in Article 252 is required for the adoption of internal rules. The European Parliament shall deliver its opinion within a time limit which the Council may lay down according to the urgency of the matter. In the absence of an opinion within that time limit, the Council may act.

By way of derogation from the previous subparagraph, agreements referred to in Article 310, other agreements establishing a specific institutional framework by organising cooperation procedures, agreements having important budgetary implications for the Community and agreements entailing amendment of an act adopted under the procedure referred to in Article 251 shall be concluded after the assent of the European Parliament has been obtained.

The Council and the European Parliament may, in an urgent situation, agree upon a time limit for the assent.

4. When concluding an agreement, the Council may, by way of derogation from paragraph 2, authorise the Commission to approve modifications on behalf of the Community where the agreement provides for them to be adopted by a simplified procedure or by a body set up by the agreement; it may attach specific conditions to such authorisation.

5. When the Council envisages concluding an agreement which calls for amendments to this Treaty, the amendments must first be adopted in accordance with the procedure laid down in Article 48 of the Treaty on European Union.

6. The European Parliament, the Council, the Commission or a Member State may obtain the opinion of the Court of Justice as to whether an agreement envisaged is compatible with the provisions of this Treaty. Where the opinion of the Court of Justice is adverse, the agreement may enter into force only in accordance with Article 48 of the Treaty on European Union.

7. Agreements concluded under the conditions set out in this Article shall be binding on the institutions of the Community and on Member States.


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The original Lisbon Treaty

Article 2, point 173 of the original Treaty of Lisbon inserted an Article 188n replacing Article 300 TEC, in OJEU 17.12.2007 C 306/97–98:

173) An Article 188 N shall be inserted, replacing Article 300:

[Text not repeated here]


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Consolidated Lisbon Treaty

If the Treaty of Lisbon enters into force, here is what the renumbered Article 218 TFEU would look like; consolidated version of the Treaty on the Functioning of the European Union, published OJEU 9.5.2008 C 115/144–146:


Article 218 TFEU
(ex Article 300 TEC)

1. Without prejudice to the specific provisions laid down in Article 207, agreements between the Union and third countries or international organisations shall be negotiated and concluded in accordance with the following procedure.

2. The Council shall authorise the opening of negotiations, adopt negotiating directives, authorise the signing of agreements and conclude them.

3. The Commission, or the High Representative of the Union for Foreign Affairs and Security Policy where the agreement envisaged relates exclusively or principally to the common foreign and security policy, shall submit recommendations to the Council, which shall adopt a decision authorising the opening of negotiations and, depending on the subject of the agreement envisaged, nominating the Union negotiator or the head of the Union's negotiating team.

4. The Council may address directives to the negotiator and designate a special committee in consultation with which the negotiations must be conducted.

5. The Council, on a proposal by the negotiator, shall adopt a decision authorising the signing of the agreement and, if necessary, its provisional application before entry into force.

6. The Council, on a proposal by the negotiator, shall adopt a decision concluding the agreement.

Except where agreements relate exclusively to the common foreign and security policy, the Council shall adopt the decision concluding the agreement:

(a) after obtaining the consent of the European Parliament in the following cases:

(i) association agreements;

(ii) agreement on Union accession to the European Convention for the Protection of Human Rights and Fundamental Freedoms;

(iii) agreements establishing a specific institutional framework by organising cooperation procedures;

(iv) agreements with important budgetary implications for the Union;

(v) agreements covering fields to which either the ordinary legislative procedure applies, or the special legislative procedure where consent by the European Parliament is required.

The European Parliament and the Council may, in an urgent situation, agree upon a time-limit for consent.

(b) after consulting the European Parliament in other cases. The European Parliament shall deliver its opinion within a time-limit which the Council may set depending on the urgency of the matter. In the absence of an opinion within that time-limit, the Council may act.

7. When concluding an agreement, the Council may, by way of derogation from paragraphs 5, 6 and 9, authorise the negotiator to approve on the Union's behalf modifications to the agreement where it provides for them to be adopted by a simplified procedure or by a body set up by the agreement. The Council may attach specific conditions to such authorisation.

8. The Council shall act by a qualified majority throughout the procedure.

However, it shall act unanimously when the agreement covers a field for which unanimity is required for the adoption of a Union act as well as for association agreements and the agreements referred to in Article 212 with the States which are candidates for accession. The Council shall also act unanimously for the agreement on accession of the Union to the European Convention for the Protection of Human Rights and Fundamental Freedoms; the decision concluding this agreement shall enter into force after it has been approved by the Member States in accordance with their respective constitutional requirements.

9. The Council, on a proposal from the Commission or the High Representative of the Union for Foreign Affairs and Security Policy, shall adopt a decision suspending application of an agreement and establishing the positions to be adopted on the Union's behalf in a body set up by an agreement, when that body is called upon to adopt acts having legal effects, with the exception of acts supplementing or amending the institutional framework of the agreement.

10. The European Parliament shall be immediately and fully informed at all stages of the procedure.

11. A Member State, the European Parliament, the Council or the Commission may obtain the opinion of the Court of Justice as to whether an agreement envisaged is compatible with the Treaties. Where the opinion of the Court is adverse, the agreement envisaged may not enter into force unless it is amended or the Treaties are revised.


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Comments

The abolishment of the separate European Union and the European Community by merging the EC into the EU, with legal personality, extends and facilitates the general procedure for negotiating and concluding international agreements.

The agreements are concluded in the name of the European Union.

International agreements relating to the common foreign and security (CFSP) still have special traits within the general procedure.

The role of the European Parliament is strengthened where its consent is needed.

Unanimity remains the rule for Council decisions in the following cases:

· When unanimity is required for the adoption of a Union act
· Association agreements
· Economic, financial and technical cooperation agreements with candidates for accession
· Accession of the EU to the European Convention for the Protection of Human Rights and Fundamental Freedoms (plus ratification needed)

In substance Article 218 TFEU is similar to Article III-325 of the Constitutional Treaty, with the addition that the European Convention on Human Rights requires both unanimous decision and ratification by the member states.



Ralf Grahn

EU Law: Association agreements

Association agreements imply a deeper relationship between the European Community (European Union) and third countries than run of the mill international agreements, but this category of agreements is brought to attention more by the existence of a special treaty provision than by its clarity. In practice, the term association has been used for various kinds of agreements.




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Current treaty

Article 310 of the Treaty establishing the European Community (TEC) provides for the establishment of an association with one or more state (third country). The “special relationship” is emphasised more by the existence of this provision than by its contents.

Reciprocal rights and obligations are the bread and butter of international agreements. Common action and special procedure hint at more evolved relations. Article 310 TEC does not elaborate on the objectives or contents of the relationship.

The conclusion of an association agreement is ruled by Article 300 TEC, with the notable requirement in paragraph 2 that unanimity is required in the Council.

Article 310 TEC is found in the latest consolidated version of the treaties, published in the Official Journal of the European Union (OJEU) 29.12.2006 C 321 E/179:



Article 310 TEC

The Community may conclude with one or more States or international organisations agreements establishing an association involving reciprocal rights and obligations, common action and special procedure.


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Original Lisbon Treaty

Article 2, point 172 of the original Treaty of Lisbon inserted the text of Article 310 TEC into the treaty with a new number 188m and a small specific amendment (OJEU 17.12.2007 C 306/97):


172) An Article 188 M shall be inserted, with the wording of Article 310. The word ‘States’ shall be replaced by ‘third countries’.


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Consolidated Lisbon Treaty

If the Treaty of Lisbon enters into force, Article 188m would appear renumbered as Article 217 of the Treaty on the Functioning of the European Union (TFEU), including the specific amendment that the partners would be called third countries as elsewhere in the treaties, since (Member) States is the term reserved for EU members. As usual, Community would be replaced by Union according to the horizontal amendment (OJEU 9.5.2008 C 115/144):


Article 217 TFEU
(ex Article 310 TEC)

The Union may conclude with one or more third countries or international organisations agreements establishing an association involving reciprocal rights and obligations, common action and special procedure.


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Brief overview

The Lisbon Treaty would not change the substance of Article 310 TEC. Thus, it would not expand upon the objectives, categories or contents either.

For a brief overview you could read the clear but somewhat incomplete Wikipedia article European Union Association Agreement, which focuses on two policy areas of heavier involvement, namely the Stabilisation and Association Process and the European Neighbourhood Policy (latest update 22 December 2008):

http://en.wikipedia.org/wiki/European_Union_Association_Agreement


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Stabilisation and Association Process

The Commission offers web pages on the Stabilisation and Association Process, the framework for EU negotiations with the Western Balkan countries on their way to their eventual EU membership. You can start here:

http://ec.europa.eu/enlargement/enlargement_process/accession_process/how_does_a_country_join_the_eu/sap/index_en.htm



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European Neighbourhood Policy

The Commission explains the European Neighbourhood Policy on this and on related pages:


http://ec.europa.eu/world/enp/policy_en.htm


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Scope of association agreements


Eur-Lex does not present association agreements as a group among classification headings. There are 31 pages of hits (many of them updates of existing agreements) under Association when you look at International agreements classified according to subject matter:

http://eur-lex.europa.eu/Result.do?RechType=RECH_AccorMat&mat=ASSO&repihm=Association


A simple search of the Commission’s Treaties Office Database offers 50 (basic) agreements to the search term ‘association’, which is a manageable number to start eliminating the false starts:

http://ec.europa.eu/world/agreements/SimpleSearch.do


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European Economic Area (EEA)

One association worth special mention is the agreement on the European Economic Area. The Preamble of EEA agreement reaffirms he high priority attached by the parties to the privileged relationship between the European Community, its Member States and the EFTA States, which is based on proximity, long-standing common values and European identity;

The scope of the agreement on the European Economic Area goes well beyond free trade by providing for the continuing reception of large parts of the evolving Community acquis as well as participation in EU programmes in various policy areas:


Article 1

1. The aim of this Agreement of association is to promote a continuous and balanced strengthening of trade and economic relations between the Contracting Parties with equal conditions of competition, and the respect of the same rules, with a view to creating a homogeneous European Economic Area, hereinafter referred to as the EEA.

2. In order to attain the objectives set out in paragraph 1, the association shall entail, in accordance with the provisions of this Agreement :

(a) the free movement of goods;

(b) the free movement of persons;

(c) the free movement of services;

(d) the free movement of capital;

(e) the setting up of a system ensuring that competition is not distorted and that the rules thereon are equally respected; as well as

(f) closer cooperation in other fields, such as research and development, the environment, education and social policy.


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Overseas countries and territories


Overseas countries and territories (OCTs) are a special group where the term association is used (Articles 182 to 188 TEC; Articles 198 to 204 TFEU).



Ralf Grahn