According to EUbusiness 23 September 2009 Germany ratifies the EU’s Lisbon reform treaty: Federal President Horst Köhler has signed the ratification instrument, as attributed to a spokesman. (I found no confirmation on the President’s web site.)
If the information is correct, the purists may still argue that the ratification instrument has to deposited in Rome, for the ratification process to be complete, but does anyone doubt the ability of the German diplomatic service in this respect?
***
Three to go
After Germany, only three ratifications remain uncompleted:
• Ireland, where the Lisbon II referendum takes place on 2 October 2009, promising an Irish Commissioner and offering assurances on sensitive issues
• Poland, where President Lech Kaczynski has withheld his signature despite parliamentary approval of the Lisbon Treaty
• The Czech Republic, where a few defeated henchmen of President Vaclav Klaus do their utmost to paralyse the European Union by a new legal challenge
In addition, at sub-state level the Legal Committee of the Åland Parliament has still to produce a report on the application of the Lisbon Treaty in this autonomous region of Finland.
Ralf Grahn
Showing posts with label Åland. Show all posts
Showing posts with label Åland. Show all posts
Wednesday, 23 September 2009
Friday, 24 April 2009
Aland Islands: Regional voice in EU affairs
For a small region, the Aland Islands have a strong voice in national EU affairs. Now the Finnish Government proposes enhancements, which may be of interest ─ apprehension or hope ─ to other central governments and regions in Europe.
***
A few days ago we wrote about the slow procedure concerning the approval of the EU Treaty of Lisbon in Aland Islands: Lisbon Treaty (21 April 2009).
***
Latest proposals
Preparation of EU affairs
The Government of Finland has now approved guidelines on how the small province (population 27,500) can partake in the preparation of EU affairs. Åland already is involved in the 30 something ministerial sections covering all EU affairs and in the EU committee consisting of the highest civil servants where they are brought together before being passed on to the Government’s EU committee, which coordinates EU affairs. Åland can also make its case directly to the ministers in the Government’s EU committee.
(All EU proposals and Council meetings are scrutinised by the Parliament – especially the Grand Committee - and Åland is represented there too, but that is another story.)
The aim of new guidelines is to find common positions between Finland (the member state) and Åland on all issues of interest to the region. If this proves to be impossible, the position of Åland will be communicated to the EU institutions in addition to Finland’s official view.
Infringement cases
Infringement cases are problematic, because Finland is responsible for implementing Community legislation in relation to the European Union. But if the issue at hand is part of the areas subject to autonomous legislation or administration by the regional authorities, there is little the member state can do, if Åland fails to fulfil an obligation under the treaty. (Politically Åland has undertaken to finance the penalty payments in such cases.)
The Government proposes amendments to the Act on the Autonomy of Åland. The amendments require approval by both the Parliament of Finland and the Åland Parliament. Their aim is to guarantee that Åland can make its case in Finland’s reply to the Commission and to the Court of Justice. Åland can appear in oral proceedings and the region can propose that Finland brings a matter before the Court of Justice.
The Government’s press release in Finnish and in Swedish (23 April 2009).
The detailed guidelines are available in Finnish (4 pages), but I did not find them in Swedish (yet?).
The Government bill will probably be formally sent to the Parliament after the presidential session later today. For those who are interested in the details, but not pressed for time, the text of the proposal will be found in Finnish and Swedish on the legislative information portal Finlex in about a week.
Ralf Grahn
***
A few days ago we wrote about the slow procedure concerning the approval of the EU Treaty of Lisbon in Aland Islands: Lisbon Treaty (21 April 2009).
***
Latest proposals
Preparation of EU affairs
The Government of Finland has now approved guidelines on how the small province (population 27,500) can partake in the preparation of EU affairs. Åland already is involved in the 30 something ministerial sections covering all EU affairs and in the EU committee consisting of the highest civil servants where they are brought together before being passed on to the Government’s EU committee, which coordinates EU affairs. Åland can also make its case directly to the ministers in the Government’s EU committee.
(All EU proposals and Council meetings are scrutinised by the Parliament – especially the Grand Committee - and Åland is represented there too, but that is another story.)
The aim of new guidelines is to find common positions between Finland (the member state) and Åland on all issues of interest to the region. If this proves to be impossible, the position of Åland will be communicated to the EU institutions in addition to Finland’s official view.
Infringement cases
Infringement cases are problematic, because Finland is responsible for implementing Community legislation in relation to the European Union. But if the issue at hand is part of the areas subject to autonomous legislation or administration by the regional authorities, there is little the member state can do, if Åland fails to fulfil an obligation under the treaty. (Politically Åland has undertaken to finance the penalty payments in such cases.)
The Government proposes amendments to the Act on the Autonomy of Åland. The amendments require approval by both the Parliament of Finland and the Åland Parliament. Their aim is to guarantee that Åland can make its case in Finland’s reply to the Commission and to the Court of Justice. Åland can appear in oral proceedings and the region can propose that Finland brings a matter before the Court of Justice.
The Government’s press release in Finnish and in Swedish (23 April 2009).
The detailed guidelines are available in Finnish (4 pages), but I did not find them in Swedish (yet?).
The Government bill will probably be formally sent to the Parliament after the presidential session later today. For those who are interested in the details, but not pressed for time, the text of the proposal will be found in Finnish and Swedish on the legislative information portal Finlex in about a week.
Ralf Grahn
Monday, 26 January 2009
Åland: Lisbon Treaty
If deliberation is part of democracy, the Åland Parliament belongs to a European regional master class. Thirteen months have passed since the signing of the Treaty of Lisbon, nine months since the President of Finland Tarja Halonen formally proposed approval of the amending treaty to the regional parliament.
The Finnish Parliament approved the Lisbon Treaty in June 2008, and the ratification instrument has been deposited in Rome. Even latecomer Sweden has managed to ratify the new EU treaties.
In other words, if the Lisbon Treaty enters into force, it will bind Finland and neighbouring Sweden, Estonia, Latvia, Lithuania and Denmark, but it is still unclear if it will apply to Åland in between (to the extent that questions are within the remit of the autonomy).
In the Åland Islands the matter remains at the committee stage. No committee report has been published and it is impossible to get an answer as to when this might happen or when the plenary might make a decision either for or against approval of the Lisbon Treaty.
Ten out of thirty local legislators are enough for a negative outcome, which would lead to a highly interesting situation.
***
Gibraltar seems to be in the same category. I have been unable to uncover information about if and when the local Parliament might deal with the Lisbon Treaty, but I would be grateful if someone has information to offer the readers of this blog.
In the member state league, the Czech Council Presidency, Polish President Lech Kaczynski and the Irish voters are still among the political stumbling blocks, whereas the German Constitutional Court has at least announced two days for hearings a fortnight from now.
***
The unanimous conclusion and ratification of treaties has proven to be highly rewarding for obstructionists. They have created a Europe in their image.
Ralf Grahn
The Finnish Parliament approved the Lisbon Treaty in June 2008, and the ratification instrument has been deposited in Rome. Even latecomer Sweden has managed to ratify the new EU treaties.
In other words, if the Lisbon Treaty enters into force, it will bind Finland and neighbouring Sweden, Estonia, Latvia, Lithuania and Denmark, but it is still unclear if it will apply to Åland in between (to the extent that questions are within the remit of the autonomy).
In the Åland Islands the matter remains at the committee stage. No committee report has been published and it is impossible to get an answer as to when this might happen or when the plenary might make a decision either for or against approval of the Lisbon Treaty.
Ten out of thirty local legislators are enough for a negative outcome, which would lead to a highly interesting situation.
***
Gibraltar seems to be in the same category. I have been unable to uncover information about if and when the local Parliament might deal with the Lisbon Treaty, but I would be grateful if someone has information to offer the readers of this blog.
In the member state league, the Czech Council Presidency, Polish President Lech Kaczynski and the Irish voters are still among the political stumbling blocks, whereas the German Constitutional Court has at least announced two days for hearings a fortnight from now.
***
The unanimous conclusion and ratification of treaties has proven to be highly rewarding for obstructionists. They have created a Europe in their image.
Ralf Grahn
Friday, 12 September 2008
Lisbon Treaty: Finland ratifies and Åland hesitates
Formal ratification of the EU Lisbon Treaty takes one additional step today in Finland with the signature of President Tarja Halonen. The parliamentary ratification stage was concluded in June, with overwhelming support for the amending treaty.
The Treaty of Lisbon is still at the committee stage in the Åland Islands Parliament, which through the regional government has lobbied hard for increased, more or less parallel powers in Finnish EU affairs.
Here is the text of the Finnish government’s press release:
“Ministry for Foreign Affairs
11.9.2008 14.02
Finland ratifies the treaty of Lisbon
The Government of Finland decided to present on Thursday 11 September to the President of the Republic the ratification of the Treaty of Lisbon and the confirmation of the Act on the implementation of the Treaty. The President of the Republic is to decide on the matter on Friday 12 September.
The Parliament of Finland approved the Treaty of Lisbon for its part on 11 June.
Deliberations on the Treaty by the Parliaments of the Member States of the European Union have been completed in other Member States except for Sweden and the Czech Republic. In its referendum in June, Ireland voted against the Treaty. Seventeen Member States have deposited their instruments of ratification with the Government of Italy.
The Act on the implementation of the Treaty is under discussion also before the Åland Parliament ("Lagting") whose consent has been requested in order to bring the provisions of the Treaty into force in Åland. The consent of the Åland Parliament is not a prerequisite for the ratification of the Treaty by Finland.
The Government gave the following statement in connection with this matter: "In the context of the ratification of the Treaty of Lisbon discussions have been carried out with the representatives of Åland on the participation of Åland in the preparation of European Union affairs and Åland's possibilities to exert influence on them. On the basis of these discussions a decision in principle is being prepared for its adoption by the Government of Finland. In addition, a working group has been established to prepare an amendment to the Act on the Autonomy of Åland concerning the possibility of Åland to be heard before the European Court of Justice."
Further information: Director Päivi Kaukoranta, Ministry for Foreign Affairs, tel 160 55715.”
***
Source:
http://www.valtioneuvosto.fi/ajankohtaista/tiedotteet/tiedote/fi.jsp?oid=238119
The press release is available in Finnish and Swedish, too.
Ralf Grahn
The Treaty of Lisbon is still at the committee stage in the Åland Islands Parliament, which through the regional government has lobbied hard for increased, more or less parallel powers in Finnish EU affairs.
Here is the text of the Finnish government’s press release:
“Ministry for Foreign Affairs
11.9.2008 14.02
Finland ratifies the treaty of Lisbon
The Government of Finland decided to present on Thursday 11 September to the President of the Republic the ratification of the Treaty of Lisbon and the confirmation of the Act on the implementation of the Treaty. The President of the Republic is to decide on the matter on Friday 12 September.
The Parliament of Finland approved the Treaty of Lisbon for its part on 11 June.
Deliberations on the Treaty by the Parliaments of the Member States of the European Union have been completed in other Member States except for Sweden and the Czech Republic. In its referendum in June, Ireland voted against the Treaty. Seventeen Member States have deposited their instruments of ratification with the Government of Italy.
The Act on the implementation of the Treaty is under discussion also before the Åland Parliament ("Lagting") whose consent has been requested in order to bring the provisions of the Treaty into force in Åland. The consent of the Åland Parliament is not a prerequisite for the ratification of the Treaty by Finland.
The Government gave the following statement in connection with this matter: "In the context of the ratification of the Treaty of Lisbon discussions have been carried out with the representatives of Åland on the participation of Åland in the preparation of European Union affairs and Åland's possibilities to exert influence on them. On the basis of these discussions a decision in principle is being prepared for its adoption by the Government of Finland. In addition, a working group has been established to prepare an amendment to the Act on the Autonomy of Åland concerning the possibility of Åland to be heard before the European Court of Justice."
Further information: Director Päivi Kaukoranta, Ministry for Foreign Affairs, tel 160 55715.”
***
Source:
http://www.valtioneuvosto.fi/ajankohtaista/tiedotteet/tiedote/fi.jsp?oid=238119
The press release is available in Finnish and Swedish, too.
Ralf Grahn
Friday, 14 March 2008
Åland in the European Union
A potential problem on the path towards ratification of the Treaty of Lisbon, the Åland Islands (population 27,000) have made their appearance in international discussion surrounding the treaty.
An example of regions with legislative powers and as one of the territories mentioned specially in the context of the territorial scope of the EU treaties (Protocol No 2 on the Åland islands, in the 1994 Accession Treaty), the autonomous Åland province is of interest to students of law and political sciences, as well as regional authorities and active citizens.
Europe Information, of the Ministry for Foreign Affairs of Finland, has published a 42 page brochure in English, which offers comprehensive information on the position of the province, with interesting aspects of both international law and inner autonomy:
Sören Silverström: Åland in the European Union (Helsinki, 2005)
The booklet can be downloaded here:
http://www.eurooppa-tiedotus.fi/public/download.aspx?ID=21876&GUID={8AF46DE8-EB14-4084-9A79-344A770F84D6}
Along with 72 other regions within the European Union, Åland has a local directly elected parliament (lagtinget) and its own government (landskapsregeringen).
These RegLeg regions cooperate through their annual conferences of presidents of regions with legislative power. The latest conference was held in Barcelona, Catalonia, 15 – 16 November 2007, and the Barcelona Declaration offer the regions’ fairly positive view of the Lisbon Treaty then getting its final touches:
http://www.gencat.cat/regleg/pdf/declaracio_barcelona_eng.pdf
Ralf Grahn
An example of regions with legislative powers and as one of the territories mentioned specially in the context of the territorial scope of the EU treaties (Protocol No 2 on the Åland islands, in the 1994 Accession Treaty), the autonomous Åland province is of interest to students of law and political sciences, as well as regional authorities and active citizens.
Europe Information, of the Ministry for Foreign Affairs of Finland, has published a 42 page brochure in English, which offers comprehensive information on the position of the province, with interesting aspects of both international law and inner autonomy:
Sören Silverström: Åland in the European Union (Helsinki, 2005)
The booklet can be downloaded here:
http://www.eurooppa-tiedotus.fi/public/download.aspx?ID=21876&GUID={8AF46DE8-EB14-4084-9A79-344A770F84D6}
Along with 72 other regions within the European Union, Åland has a local directly elected parliament (lagtinget) and its own government (landskapsregeringen).
These RegLeg regions cooperate through their annual conferences of presidents of regions with legislative power. The latest conference was held in Barcelona, Catalonia, 15 – 16 November 2007, and the Barcelona Declaration offer the regions’ fairly positive view of the Lisbon Treaty then getting its final touches:
http://www.gencat.cat/regleg/pdf/declaracio_barcelona_eng.pdf
Ralf Grahn
Wednesday, 12 March 2008
Lisbon Treaty ratification: Finland without Åland Islands?
Eleven local legislators out of 30 would be enough to fail the required two thirds majority in the Åland Islands, but would Finland desist from ratifying the Treaty of Lisbon if the regional parliament (lagtinget) of the autonomous Åland Islands refrained from giving its consent?
Commission actions to pursue bans on ingrained local customs like ‘snus’ (snuff), a powder tobacco product for oral use, allowed in neighbouring Sweden under a derogation (see ECJ C-344/03), and the spring hunt of water fowl (see ECJ C-343/05) have won the European Union few friends in the province.
A glimpse at letters to the editor in the local Åland newspapers would lead one to believe that the province could either leave the European Union and be better off, or that the province could exact any concessions from Finland ahead of ratification.
On the one hand, there is the special status of the internally autonomous and internationally demilitarised Åland Islands (population 26,000), part of Finland, but with derogations concerning the applicability of the EU treaties.
Within its extensive areas of legislative competence, Åland has to give its consent to new EU legislation, which has led to a number of proceedings for late transposition against Finland as the member state responsible.
On the other hand, if Finland abstained from ratifying the Lisbon Treaty following a possible Åland refusal, the country’s own intention to ratify would be thwarted and the ratification process concerning 490 million EU citizens would grind to a halt.
***
The intergovernmental conference (IGC 2007) inserted the following Article 49c on applicability and territorial scope into the Treaty on European Union (TEU), of the amending Treaty of Lisbon (ToL). See OJ 17.12.2007 C 306/40:
60) An Article 49 C shall be inserted:
Article 49c TEU (ToL), after renumbering Article 52 TEU
1. The Treaties shall apply to the Kingdom of Belgium, Republic of Bulgaria, the Czech Republic, the Kingdom of Denmark, the Federal Republic of Germany, the Republic of Estonia, Ireland, the Hellenic Republic, the Kingdom of Spain, the French Republic, the Italian Republic, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Grand Duchy of Luxembourg, the Republic of Hungary, the Republic of Malta, the Kingdom of the Netherlands, the Republic of Austria, the Republic of Poland, the Portuguese Republic, Romania, the Republic of Slovenia, the Slovak Republic, the Republic of Finland, the Kingdom of Sweden and the United Kingdom of Great Britain and Northern Ireland.
2. The territorial scope of the Treaties is specified in Article 311a of the Treaty on the Functioning of the European Union.
***
As we see, the territorial scope of the Treaties is specified more exactly in the Treaty on the Functioning of the European Union (TFEU), where Article 311a(4) [TFEU (ToL), after renumbering Article 355(4) TFEU] would take over the the provision on the Åland Islands of Article 299(5) in the current Treaty on establishing the European Community (TEC). (OJ 17.12.2007 C 306/132):
4. The provisions of the Treaties shall apply to the Åland Islands in accordance with the provisions set out in Protocol 2 to the Act concerning the conditions of accession of the Republic of Austria, the Republic of Finland and the Kingdom of Sweden.
***
Protocol 2 attached to the 1994 accession treaty spell out the Finnish derogations concerning Åland:
Protocol No 2 on the Åland islands
Taking into account the special status that the Åland islands enjoy under international law, the Treaties on which the European Union is founded shall apply to the Åland islands with the following derogations:
Article 1
The provisions of the EC Treaty shall not preclude the application of the existing provisions in force on 1 January 1994 on the Åland islands on:
- restrictions, on a non-discriminatory basis, on the right of natural persons who do not enjoy hembygdsrätt/kotiseutuoikeus (regional citizenship) in Åland, and for legal persons, to acquire and hold real property on the Åland islands without permission by the competent authorities of the Åland islands;
- restrictions, on a non-discriminatory basis, on the right of establishment and the right to provide services by natural persons who do not enjoy hembygdsrätt/kotiseutuoikeus (regional citizenship) in Åland, or by legal persons without permission by the competent authorities of the Åland islands.
Article 2
(a) The territory of the Åland islands - being considered as a third territory, as defined in Article 3 (1) third indent of Council Directive 77/388/EEC as amended, and as a national territory falling outside the field of application of the excise harmonization directives as defined in Article 2 of Council Directive 92/12/EEC - shall be excluded from the territorial application of the EC provisions in the fields of harmonization of the laws of the Member States on turnover taxes and on excise duties and other forms of indirect taxation. This exemption shall not have any effect on the Community's own resources.
This paragraph shall not apply to the provisions of Council Directive 69/335/EEC, as amended, relating to capital duty.
(b) This derogation is aimed at maintaining a viable local economy in the islands and shall not have any negative effects on the interests of the Union nor on its common policies. If the Commission considers that the provisions in paragraph (a) are no longer justified, particularly in terms of fair competition or own resources, it shall submit appropriate proposals to the Council, which shall act in accordance with the pertinent articles of the EC Treaty.
Article 3
The Republic of Finland shall ensure that the same treatment applies to all natural and legal persons of the Member States in the Åland islands.
***
In other words, there are restrictions on EU citizens’ chances to buy property, to establish a business and to provide services in the province, because permissions are required. These restrictions apply to Finnish nationals as well (non-discriminatory).
In VAT matters Åland is a ‘third country’.
***
In practice, Åland has excellent opportunities to voice its opinion, during preparation of EU matters within the government from civil servants’ committees to political decision making, including the possibility to send its plead its case in the all-important EU committee of the cabinet. I
In the parliament including Åland has one representative (out of 200, despite its small population), and this MP sits on the important EU committee of the parliament.
Åland has a watchdog attached to the Finnish EU Council representation, and thus direct contact with intergovernmental proceedings (and all other matters of concern flowing through the Council).
The province is extensively consulted, but it can not dictate the final decisions of the state, which is responsible for foreign policy in general and as treaty state in relation to the European Union.
It is not easy to see how Åland could achieve much more as a part of Finland and the European Union, taking into account some measure of proportional representation and influence, but a fudge to defuse the situation is a possibility. Leading Finnish politicians have used conciliatory language, without signalling specific concessions.
The former Supreme Court President and ECJ member Leif Sevón has given interviews, where he has outlined the possible outcomes of Åland’s refusal to consent to ratification.
***
When Finland acceded to the European Union, it notified that the treaties apply to Åland in accordance with Protocol No 2 (above).
If Åland rejects the Lisbon Treaty, it is difficult to imagine that Finland would let its own ratification be derailed, although some secessionists seem to think that Finland’s international reputation would be hurt by leaving Åland to its own devices. (Realists may be forgiven for thinking that derailing the ratification process for 490 million Europeans might seem a more worrying aspect for the Finnish political leadership.)
If Åland refused and Finland ratified, a notification on the altered territorial scope would be the probable first official manifestation of the change.
As far as I understand, there are no absolutely watertight rules to follow, if the wording of a treaty does not forsee a later development during the cumbersome ratification process.
In practice, there would probably be a few months of grace between the announcement and the scheduled date for the Lisbon Treaty to enter into force. The situation is resembles the one after Norway withdrew its membership application in 1994.
There would be need for negotiations between Åland and Finland, between Åland and the EU and between Finland and the EU on their future relations. This would then have to be patched together somehow, perhaps in a treaty adaptation and other agreements.
***
When I noticed Mark Mardell’s blog on the subject, I tried to post a comment, but there seemed to be a technical hitch, so the comment was probably left hanging. Therefore I am going to post it here, especially since I saw that the Federal Union blog had also mentioned the Åland problem (as the starting point for a discussion on the consequences of unanimity).
Here is the intended comment for Mardell’s blog:
I don't see Finland playing hardball against the EU, but of certain members of the local Åland parliament (lagtinget), where more than one third of 30 provincial legislators would suffice to scupper ratification (consent) on the behalf of Åland, against Finland.
The opposition is trying to wring concessions out of the Finnish government, although it is hard to see what more Åland could reasonably get (without total independence), being heard at every stage of preparation and legislation in EU affairs.
Two Åland issues, with the province represented by Finland, as the member state responsible, have led to defeat in the ECJ, one on the ban on 'snus' tobacco (where Sweden has a derogation) and the spring hunt for water fowl, both deeply felt local affinities.
Hounding these customs through the courts has made the EU few friends in the islands. A healthy reminder, perhaps, of catchwords like 'diversity', 'subsidiarity' and 'proportionality'.
Ralf Grahn
Commission actions to pursue bans on ingrained local customs like ‘snus’ (snuff), a powder tobacco product for oral use, allowed in neighbouring Sweden under a derogation (see ECJ C-344/03), and the spring hunt of water fowl (see ECJ C-343/05) have won the European Union few friends in the province.
A glimpse at letters to the editor in the local Åland newspapers would lead one to believe that the province could either leave the European Union and be better off, or that the province could exact any concessions from Finland ahead of ratification.
On the one hand, there is the special status of the internally autonomous and internationally demilitarised Åland Islands (population 26,000), part of Finland, but with derogations concerning the applicability of the EU treaties.
Within its extensive areas of legislative competence, Åland has to give its consent to new EU legislation, which has led to a number of proceedings for late transposition against Finland as the member state responsible.
On the other hand, if Finland abstained from ratifying the Lisbon Treaty following a possible Åland refusal, the country’s own intention to ratify would be thwarted and the ratification process concerning 490 million EU citizens would grind to a halt.
***
The intergovernmental conference (IGC 2007) inserted the following Article 49c on applicability and territorial scope into the Treaty on European Union (TEU), of the amending Treaty of Lisbon (ToL). See OJ 17.12.2007 C 306/40:
60) An Article 49 C shall be inserted:
Article 49c TEU (ToL), after renumbering Article 52 TEU
1. The Treaties shall apply to the Kingdom of Belgium, Republic of Bulgaria, the Czech Republic, the Kingdom of Denmark, the Federal Republic of Germany, the Republic of Estonia, Ireland, the Hellenic Republic, the Kingdom of Spain, the French Republic, the Italian Republic, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Grand Duchy of Luxembourg, the Republic of Hungary, the Republic of Malta, the Kingdom of the Netherlands, the Republic of Austria, the Republic of Poland, the Portuguese Republic, Romania, the Republic of Slovenia, the Slovak Republic, the Republic of Finland, the Kingdom of Sweden and the United Kingdom of Great Britain and Northern Ireland.
2. The territorial scope of the Treaties is specified in Article 311a of the Treaty on the Functioning of the European Union.
***
As we see, the territorial scope of the Treaties is specified more exactly in the Treaty on the Functioning of the European Union (TFEU), where Article 311a(4) [TFEU (ToL), after renumbering Article 355(4) TFEU] would take over the the provision on the Åland Islands of Article 299(5) in the current Treaty on establishing the European Community (TEC). (OJ 17.12.2007 C 306/132):
4. The provisions of the Treaties shall apply to the Åland Islands in accordance with the provisions set out in Protocol 2 to the Act concerning the conditions of accession of the Republic of Austria, the Republic of Finland and the Kingdom of Sweden.
***
Protocol 2 attached to the 1994 accession treaty spell out the Finnish derogations concerning Åland:
Protocol No 2 on the Åland islands
Taking into account the special status that the Åland islands enjoy under international law, the Treaties on which the European Union is founded shall apply to the Åland islands with the following derogations:
Article 1
The provisions of the EC Treaty shall not preclude the application of the existing provisions in force on 1 January 1994 on the Åland islands on:
- restrictions, on a non-discriminatory basis, on the right of natural persons who do not enjoy hembygdsrätt/kotiseutuoikeus (regional citizenship) in Åland, and for legal persons, to acquire and hold real property on the Åland islands without permission by the competent authorities of the Åland islands;
- restrictions, on a non-discriminatory basis, on the right of establishment and the right to provide services by natural persons who do not enjoy hembygdsrätt/kotiseutuoikeus (regional citizenship) in Åland, or by legal persons without permission by the competent authorities of the Åland islands.
Article 2
(a) The territory of the Åland islands - being considered as a third territory, as defined in Article 3 (1) third indent of Council Directive 77/388/EEC as amended, and as a national territory falling outside the field of application of the excise harmonization directives as defined in Article 2 of Council Directive 92/12/EEC - shall be excluded from the territorial application of the EC provisions in the fields of harmonization of the laws of the Member States on turnover taxes and on excise duties and other forms of indirect taxation. This exemption shall not have any effect on the Community's own resources.
This paragraph shall not apply to the provisions of Council Directive 69/335/EEC, as amended, relating to capital duty.
(b) This derogation is aimed at maintaining a viable local economy in the islands and shall not have any negative effects on the interests of the Union nor on its common policies. If the Commission considers that the provisions in paragraph (a) are no longer justified, particularly in terms of fair competition or own resources, it shall submit appropriate proposals to the Council, which shall act in accordance with the pertinent articles of the EC Treaty.
Article 3
The Republic of Finland shall ensure that the same treatment applies to all natural and legal persons of the Member States in the Åland islands.
***
In other words, there are restrictions on EU citizens’ chances to buy property, to establish a business and to provide services in the province, because permissions are required. These restrictions apply to Finnish nationals as well (non-discriminatory).
In VAT matters Åland is a ‘third country’.
***
In practice, Åland has excellent opportunities to voice its opinion, during preparation of EU matters within the government from civil servants’ committees to political decision making, including the possibility to send its plead its case in the all-important EU committee of the cabinet. I
In the parliament including Åland has one representative (out of 200, despite its small population), and this MP sits on the important EU committee of the parliament.
Åland has a watchdog attached to the Finnish EU Council representation, and thus direct contact with intergovernmental proceedings (and all other matters of concern flowing through the Council).
The province is extensively consulted, but it can not dictate the final decisions of the state, which is responsible for foreign policy in general and as treaty state in relation to the European Union.
It is not easy to see how Åland could achieve much more as a part of Finland and the European Union, taking into account some measure of proportional representation and influence, but a fudge to defuse the situation is a possibility. Leading Finnish politicians have used conciliatory language, without signalling specific concessions.
The former Supreme Court President and ECJ member Leif Sevón has given interviews, where he has outlined the possible outcomes of Åland’s refusal to consent to ratification.
***
When Finland acceded to the European Union, it notified that the treaties apply to Åland in accordance with Protocol No 2 (above).
If Åland rejects the Lisbon Treaty, it is difficult to imagine that Finland would let its own ratification be derailed, although some secessionists seem to think that Finland’s international reputation would be hurt by leaving Åland to its own devices. (Realists may be forgiven for thinking that derailing the ratification process for 490 million Europeans might seem a more worrying aspect for the Finnish political leadership.)
If Åland refused and Finland ratified, a notification on the altered territorial scope would be the probable first official manifestation of the change.
As far as I understand, there are no absolutely watertight rules to follow, if the wording of a treaty does not forsee a later development during the cumbersome ratification process.
In practice, there would probably be a few months of grace between the announcement and the scheduled date for the Lisbon Treaty to enter into force. The situation is resembles the one after Norway withdrew its membership application in 1994.
There would be need for negotiations between Åland and Finland, between Åland and the EU and between Finland and the EU on their future relations. This would then have to be patched together somehow, perhaps in a treaty adaptation and other agreements.
***
When I noticed Mark Mardell’s blog on the subject, I tried to post a comment, but there seemed to be a technical hitch, so the comment was probably left hanging. Therefore I am going to post it here, especially since I saw that the Federal Union blog had also mentioned the Åland problem (as the starting point for a discussion on the consequences of unanimity).
Here is the intended comment for Mardell’s blog:
I don't see Finland playing hardball against the EU, but of certain members of the local Åland parliament (lagtinget), where more than one third of 30 provincial legislators would suffice to scupper ratification (consent) on the behalf of Åland, against Finland.
The opposition is trying to wring concessions out of the Finnish government, although it is hard to see what more Åland could reasonably get (without total independence), being heard at every stage of preparation and legislation in EU affairs.
Two Åland issues, with the province represented by Finland, as the member state responsible, have led to defeat in the ECJ, one on the ban on 'snus' tobacco (where Sweden has a derogation) and the spring hunt for water fowl, both deeply felt local affinities.
Hounding these customs through the courts has made the EU few friends in the islands. A healthy reminder, perhaps, of catchwords like 'diversity', 'subsidiarity' and 'proportionality'.
Ralf Grahn
Saturday, 9 February 2008
EU Treaty of Lisbon Geographical scope II
At least from a Nordic perspective, this kind of lawmaking is like a return decades back in time. It is as if they had invented an inverted open method of coordination with worst practice benchmarking.
The ‘conference of representatives of the Member States’ (IGC 2007) has been convened to impart that the territorial scope of the Treaties is to be deduced by combining parts of a current Article with a set of prescribed amendments.
The text is gibberish or Volapûk for the reader of the Treaty of Lisbon, a completely unnecessary obfuscation of the information to be imparted, when it would have been simpler to write down the complete Article as amended.
***
In part one we saw that the Treaties apply to the member states, and we recapitulated the enlargement process and the consequent widening territorial or geographical scope of the Treaties. In this second part of the article we can turn our attention to more arcane details of applicability in the light of the Lisbon Treaty, although naming concrete territories and the expounding the limits of applicability would require further study.
Our next stop is obvious, Article 311a of the Treaty on the Functioning of the European Union (TFEU) where we see that the IGC is back at its enlightening best (OJ 17.12.2007 C 306/132):
293) Article 311 shall be repealed. A new Article 311a shall be inserted, with the wording of Article 299(2), first subparagraph, and Article 299(3) to (6); the text shall be amended as follows:
(a) the first subparagraph of paragraph 2 and paragraphs 3 to 6 shall be renumbered 1 to 5 and the following new introductory wording shall be inserted at the beginning of the Article:
‘In addition to the provisions of Article 49 C of the Treaty on European Union relating to the territorial scope of the Treaties, the following provisions shall apply:’;
(b) at the beginning of the first subparagraph of paragraph 2, renumbered 1, the words ‘the French overseas departments,’ shall be replaced by ‘Guadeloupe, French Guiana, Martinique, Réunion, Saint-Barthélemy, Saint-Martin’ and the words ‘in accordance with Article 299’ shall be added at the end;
(c) in paragraph 3, renumbered 2, the words ‘of this Treaty’ shall be deleted;
(d) in paragraph 6, renumbered 5, the introductory words ‘Notwithstanding the preceding paragraphs:’ shall be replaced by ‘Notwithstanding Article 49 C of the Treaty on European Union and paragraphs 1 to 4 of this Article:’;
(e) the following new paragraph shall be added at the end of the Article:
‘6. The European Council may, on the initiative of the Member State concerned, adopt a decision amending the status, with regard to the Union, of a Danish, French or Netherlands country or territory referred to in paragraphs 1 and 2. The European Council shall act unanimously after consulting the Commission.’.
***
We already saw the current Article 299 TEC in part one. While the application of the Treaties to the member states was elevated to the Treaty on European Union (TEU), the rest was left in the more mundane TFEU, but given a new number. Following the instructions given by our games organizers, we should end up with an Article 311a TFEU looking like this:
Article 311a TFEU
In addition to the provisions of Article 49c of the Treaty on European Union relating to the territorial scope of the Treaties, the following provisions shall apply:
1. The provisions of this Treaty shall apply to Guadeloupe, French Guiana, Martinique, Réunion, Saint-Barthélemy, Saint-Martin, the Azores, Madeira and the Canary Islands in accordance with Article 299.
2. The special arrangements for association set out in Part Four shall apply to the overseas countries and territories listed in Annex II.
The Treaties shall not apply to those overseas countries and territories having special relations with the United Kingdom of Great Britain and Northern Ireland which are not included in the aforementioned list.
3. The provisions of the Treaties shall apply to the European territories for whose external relations a Member State is responsible.
4. The provisions of the Treaties shall apply to the Åland Islands in accordance with the provisions set out in Protocol 2 to the Act concerning the conditions of accession of the Republic of Austria, the Republic of Finland and the Kingdom of Sweden.
5. Notwithstanding Article 49c of the Treaty on European Union and paragraphs 1 to 4 of this Article:
(a) the Treaties shall not apply to the Faeroe Islands;
(b) this Treaty shall not apply to the United Kingdom Sovereign Base Areas of Akrotiri and Dhekelia in Cyprus except to the extent necessary to ensure the implementation of the arrangements set out in the Protocol on the Sovereign Base Areas of the United Kingdom of Great Britain and Northern Ireland in Cyprus annexed to the Act concerning the conditions of accession of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic to the European Union and in accordance with the terms of that Protocol;
(c) the Treaties shall apply to the Channel Islands and the Isle of Man only to the extent necessary to ensure the implementation of the arrangements for those islands set out in the Treaty concerning the accession of new Member States to the European Economic Community and to the European Atomic Energy Community signed on 22 January 1972.
6. The European Council may, on the initiative of the Member State concerned, adopt a decision amending the status, with regard to the Union, of a Danish, French or Netherlands country or territory referred to in paragraphs 1 and 2. The European Council shall act unanimously after consulting the Commission.
***
We start with the rule that the Treaties apply to the territories of the member states (Article 49c TEU).
Territories outside Europe
Article 311a(1) TFEU includes the French, Portuguese and Spanish extra-European territories: Guadeloupe, French Guiana, Martinique, Réunion, Saint-Barthélemy, Saint-Martin, the Azores, Madeira and the Canary Islands.
As territories the Treaties are applicable pursuant to the main rule, but in accordance with the amended Article 299 TFEU the structural and economic situation of these territories is taken into account.
The situation is said to be compounded by their remoteness, insularity, small size, difficult topography and climate, economic dependence on a few products, the permanence and combination of which severely restrain their development. Therefore specific measures are allowed, aimed at laying down the conditions of application of the Treaties, including common policies.
The measures may concern particularly customs and trade policies, fiscal policy, free zones, agriculture and fisheries policies, conditions for supply of raw materials and essential consumer goods, state aids and conditions of access to structural funds and to horizontal Union programmes.
Associated overseas territories
According to Article 311a(2) special arrangements for association apply to the following overseas countries and territories listed in Annex II (taken from OJ 29.12.2006 C 321 E/186):
ANNEX II
OVERSEAS COUNTRIES AND TERRITORIES
to which the provisions of Part Four of the Treaty apply
— Greenland
— New Caledonia and Dependencies
— French Polynesia
— French Southern and Antarctic Territories
— Wallis and Futuna Islands
— Mayotte
— Saint Pierre and Miquelon
— Aruba
— Netherlands Antilles:
— Bonaire
— Curaçao
— Saba
— Sint Eustatius
— Sint Maarten
— Anguilla
— Cayman Islands
— Falkland Islands
— South Georgia and the South Sandwich Islands
— Montserrat
— Pitcairn
— Saint Helena and Dependencies
— British Antarctic Territory
— British Indian Ocean Territory
— Turks and Caicos Islands
— British Virgin Islands
— Bermuda
The association system is described in the current Articles 182 to 186 TEC, which live on with minimal change in the TFEU.
The Treaties do not apply to overseas countries and territories having special relations with the United Kingdom of Great Britain and Northern Ireland not included in the list.
Responsibility for external relations
The Treaties apply to the European territories for whose external relations a Member State is responsible.
Åland Islands
A European territory, the Åland Islands form an autonomous region of Finland with extended legislative powers and self-rule.
The relationship with the European Union was agreed in a protocol attached to the Accession Treaty of 1994, and one could speak of modified applicability.
European territories outside the Treaties
Although European, the territories mentioned in 311a(5) are not applicable to the Faeroe Islands and only marginally to the UK bases in Cyprus and to the Channel Islands and the Isle of Man.
***
While waiting for the (hopefully complete) consolidated versions of the Treaty of Lisbon, the student who wants to find general guidance on additional questions of applicability could find some useful information in Protocol (number 8) on the Treaties and Acts of Accession of the Kingdom of Denmark, Ireland and the United Kingdom of Great Britain and Northern Ireland, of the Hellenic Republic, of the Kingdom of Spain and the Portuguese Republic, and of Austria, the Republic of Finland and the Kingdom of Sweden, in the form they were attached to the Treaty establishing a Constitution for Europe (OJ 16.12.2004 C 310/274).
There are, for instance, provisions on Gibraltar, the Faroe Islands, the Channel Islands and the Isle of Man, Ceuta and Melilla and the Åland Islands.
Protocol (number 9) to the Constitutional Treaty contains, i.a. provisions on the sovereign base areas of the UK in Cyprus (page 328) as well as the suspension of the EU and EC ‘acquis’ in the areas of Cyprus outside the effective control of the government (page 341).
Ralf Grahn
The ‘conference of representatives of the Member States’ (IGC 2007) has been convened to impart that the territorial scope of the Treaties is to be deduced by combining parts of a current Article with a set of prescribed amendments.
The text is gibberish or Volapûk for the reader of the Treaty of Lisbon, a completely unnecessary obfuscation of the information to be imparted, when it would have been simpler to write down the complete Article as amended.
***
In part one we saw that the Treaties apply to the member states, and we recapitulated the enlargement process and the consequent widening territorial or geographical scope of the Treaties. In this second part of the article we can turn our attention to more arcane details of applicability in the light of the Lisbon Treaty, although naming concrete territories and the expounding the limits of applicability would require further study.
Our next stop is obvious, Article 311a of the Treaty on the Functioning of the European Union (TFEU) where we see that the IGC is back at its enlightening best (OJ 17.12.2007 C 306/132):
293) Article 311 shall be repealed. A new Article 311a shall be inserted, with the wording of Article 299(2), first subparagraph, and Article 299(3) to (6); the text shall be amended as follows:
(a) the first subparagraph of paragraph 2 and paragraphs 3 to 6 shall be renumbered 1 to 5 and the following new introductory wording shall be inserted at the beginning of the Article:
‘In addition to the provisions of Article 49 C of the Treaty on European Union relating to the territorial scope of the Treaties, the following provisions shall apply:’;
(b) at the beginning of the first subparagraph of paragraph 2, renumbered 1, the words ‘the French overseas departments,’ shall be replaced by ‘Guadeloupe, French Guiana, Martinique, Réunion, Saint-Barthélemy, Saint-Martin’ and the words ‘in accordance with Article 299’ shall be added at the end;
(c) in paragraph 3, renumbered 2, the words ‘of this Treaty’ shall be deleted;
(d) in paragraph 6, renumbered 5, the introductory words ‘Notwithstanding the preceding paragraphs:’ shall be replaced by ‘Notwithstanding Article 49 C of the Treaty on European Union and paragraphs 1 to 4 of this Article:’;
(e) the following new paragraph shall be added at the end of the Article:
‘6. The European Council may, on the initiative of the Member State concerned, adopt a decision amending the status, with regard to the Union, of a Danish, French or Netherlands country or territory referred to in paragraphs 1 and 2. The European Council shall act unanimously after consulting the Commission.’.
***
We already saw the current Article 299 TEC in part one. While the application of the Treaties to the member states was elevated to the Treaty on European Union (TEU), the rest was left in the more mundane TFEU, but given a new number. Following the instructions given by our games organizers, we should end up with an Article 311a TFEU looking like this:
Article 311a TFEU
In addition to the provisions of Article 49c of the Treaty on European Union relating to the territorial scope of the Treaties, the following provisions shall apply:
1. The provisions of this Treaty shall apply to Guadeloupe, French Guiana, Martinique, Réunion, Saint-Barthélemy, Saint-Martin, the Azores, Madeira and the Canary Islands in accordance with Article 299.
2. The special arrangements for association set out in Part Four shall apply to the overseas countries and territories listed in Annex II.
The Treaties shall not apply to those overseas countries and territories having special relations with the United Kingdom of Great Britain and Northern Ireland which are not included in the aforementioned list.
3. The provisions of the Treaties shall apply to the European territories for whose external relations a Member State is responsible.
4. The provisions of the Treaties shall apply to the Åland Islands in accordance with the provisions set out in Protocol 2 to the Act concerning the conditions of accession of the Republic of Austria, the Republic of Finland and the Kingdom of Sweden.
5. Notwithstanding Article 49c of the Treaty on European Union and paragraphs 1 to 4 of this Article:
(a) the Treaties shall not apply to the Faeroe Islands;
(b) this Treaty shall not apply to the United Kingdom Sovereign Base Areas of Akrotiri and Dhekelia in Cyprus except to the extent necessary to ensure the implementation of the arrangements set out in the Protocol on the Sovereign Base Areas of the United Kingdom of Great Britain and Northern Ireland in Cyprus annexed to the Act concerning the conditions of accession of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic to the European Union and in accordance with the terms of that Protocol;
(c) the Treaties shall apply to the Channel Islands and the Isle of Man only to the extent necessary to ensure the implementation of the arrangements for those islands set out in the Treaty concerning the accession of new Member States to the European Economic Community and to the European Atomic Energy Community signed on 22 January 1972.
6. The European Council may, on the initiative of the Member State concerned, adopt a decision amending the status, with regard to the Union, of a Danish, French or Netherlands country or territory referred to in paragraphs 1 and 2. The European Council shall act unanimously after consulting the Commission.
***
We start with the rule that the Treaties apply to the territories of the member states (Article 49c TEU).
Territories outside Europe
Article 311a(1) TFEU includes the French, Portuguese and Spanish extra-European territories: Guadeloupe, French Guiana, Martinique, Réunion, Saint-Barthélemy, Saint-Martin, the Azores, Madeira and the Canary Islands.
As territories the Treaties are applicable pursuant to the main rule, but in accordance with the amended Article 299 TFEU the structural and economic situation of these territories is taken into account.
The situation is said to be compounded by their remoteness, insularity, small size, difficult topography and climate, economic dependence on a few products, the permanence and combination of which severely restrain their development. Therefore specific measures are allowed, aimed at laying down the conditions of application of the Treaties, including common policies.
The measures may concern particularly customs and trade policies, fiscal policy, free zones, agriculture and fisheries policies, conditions for supply of raw materials and essential consumer goods, state aids and conditions of access to structural funds and to horizontal Union programmes.
Associated overseas territories
According to Article 311a(2) special arrangements for association apply to the following overseas countries and territories listed in Annex II (taken from OJ 29.12.2006 C 321 E/186):
ANNEX II
OVERSEAS COUNTRIES AND TERRITORIES
to which the provisions of Part Four of the Treaty apply
— Greenland
— New Caledonia and Dependencies
— French Polynesia
— French Southern and Antarctic Territories
— Wallis and Futuna Islands
— Mayotte
— Saint Pierre and Miquelon
— Aruba
— Netherlands Antilles:
— Bonaire
— Curaçao
— Saba
— Sint Eustatius
— Sint Maarten
— Anguilla
— Cayman Islands
— Falkland Islands
— South Georgia and the South Sandwich Islands
— Montserrat
— Pitcairn
— Saint Helena and Dependencies
— British Antarctic Territory
— British Indian Ocean Territory
— Turks and Caicos Islands
— British Virgin Islands
— Bermuda
The association system is described in the current Articles 182 to 186 TEC, which live on with minimal change in the TFEU.
The Treaties do not apply to overseas countries and territories having special relations with the United Kingdom of Great Britain and Northern Ireland not included in the list.
Responsibility for external relations
The Treaties apply to the European territories for whose external relations a Member State is responsible.
Åland Islands
A European territory, the Åland Islands form an autonomous region of Finland with extended legislative powers and self-rule.
The relationship with the European Union was agreed in a protocol attached to the Accession Treaty of 1994, and one could speak of modified applicability.
European territories outside the Treaties
Although European, the territories mentioned in 311a(5) are not applicable to the Faeroe Islands and only marginally to the UK bases in Cyprus and to the Channel Islands and the Isle of Man.
***
While waiting for the (hopefully complete) consolidated versions of the Treaty of Lisbon, the student who wants to find general guidance on additional questions of applicability could find some useful information in Protocol (number 8) on the Treaties and Acts of Accession of the Kingdom of Denmark, Ireland and the United Kingdom of Great Britain and Northern Ireland, of the Hellenic Republic, of the Kingdom of Spain and the Portuguese Republic, and of Austria, the Republic of Finland and the Kingdom of Sweden, in the form they were attached to the Treaty establishing a Constitution for Europe (OJ 16.12.2004 C 310/274).
There are, for instance, provisions on Gibraltar, the Faroe Islands, the Channel Islands and the Isle of Man, Ceuta and Melilla and the Åland Islands.
Protocol (number 9) to the Constitutional Treaty contains, i.a. provisions on the sovereign base areas of the UK in Cyprus (page 328) as well as the suspension of the EU and EC ‘acquis’ in the areas of Cyprus outside the effective control of the government (page 341).
Ralf Grahn
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