Following changes to the lists set out in the Appendices to the Convention on International Trade in Endangered Species of Wild Fauna and Flora (the CITES Convention), Regulation (EC) No 338/97 listing animal and plant species in respect of which trade is restricted or controlled has been amended.
Commission Regulation (EC) No 407/2009 of 14 May 2009 amending Council Regulation (EC) No 338/97 on the protection of species of wild fauna and flora by regulating trade therein replaces the Annex to Regulation 338/97 by a new Annex of nearly 60 pages.
Regulation 407/2009 has been published in the Official Journal of the European Union (OJEU) 19.5.2009 L 123/3.
***
Latinists and admirers of Carl von Linné are in for a treat.
Ralf Grahn
Showing posts with label Annex. Show all posts
Showing posts with label Annex. Show all posts
Tuesday, 19 May 2009
Tuesday, 7 April 2009
EU: Judgments in civil and commercial matters
This post is aimed at lawyers interested in the enforcement of European judgments.
Commission Regulation (EC) No 280/2009 of 6 April 2009 amending Annexes I, II, III and IV to Council Regulation (EC) No 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters has been published in the Official Journal of the European Union (OJEU) 7.4.2009 L 93/13.
As from tomorrow the lists in Annexes I to IV concerning these cross-border cases are being replaced by new consolidated versions. The contents of the Annexes at a glance:
Annex I Rules of jurisdiction referred to in Article 3(2) and Article 4(2)
Annex II on the courts or competent authorities to which the application referred to in Article 39 may be submitted
Annex III on the courts with which appeals referred to in Article 43(2) may be lodged
Annex IV on the appeals which may be lodged pursuant to Article 44
Ralf Grahn
Commission Regulation (EC) No 280/2009 of 6 April 2009 amending Annexes I, II, III and IV to Council Regulation (EC) No 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters has been published in the Official Journal of the European Union (OJEU) 7.4.2009 L 93/13.
As from tomorrow the lists in Annexes I to IV concerning these cross-border cases are being replaced by new consolidated versions. The contents of the Annexes at a glance:
Annex I Rules of jurisdiction referred to in Article 3(2) and Article 4(2)
Annex II on the courts or competent authorities to which the application referred to in Article 39 may be submitted
Annex III on the courts with which appeals referred to in Article 43(2) may be lodged
Annex IV on the appeals which may be lodged pursuant to Article 44
Ralf Grahn
Wednesday, 4 March 2009
European Union: Interinstitutional agreements (EP)
The “institutional triangle” of the European Union ─ the Commission, the Council and the European Parliament ─ needs internal cooperation to function properly.
The treaties define the competences of the European Union (European Community) as a whole and assign the roles to the players, but much of their interaction is left unregulated at this level.
The institutions have therefore developed practices and concluded agreements to ensure functioning relations. Interinstitutional agreements are a means to this end.
These agreements are neither well indexed nor presented on the web pages of the institutions, but we aim to present a rough sketch on the basis of what we find on the basis of the Rules of Procedure of the European Parliament. This leaves certain interinstitutional agreements outside the scope of this blog post (at least in part: Council, budget procedures, comitology, subsidiarity, better regulation).
One of the annexes to the EP Rules of Procedure has direct bearing on the rights of EU citizens. We add some information about the current stage of the Commission’s controversial proposal regarding public access to documents.
***
EP Rules of Procedure: General rule
The Rules of Procedure of the European Parliament (16th edition, October 2008) illustrate the aims and the forms of so called interinstitutional agreements. The aim is to improve or clarify procedures. According to Rule 120 these interinstitutional agreements can appear in various forms. They are subject to scrutiny before approval by the European Parliament:
CHAPTER 6 INTERINSTITUTIONAL AGREEMENTS
Rule 120 Interinstitutional agreements
1. Parliament may enter into agreements with other institutions in the context of the application of the Treaties or in order to improve or clarify procedures.
Such agreements may take the form of joint declarations, exchanges of letters or codes of conduct or other appropriate instruments. They shall be signed by the President after examination by the committee responsible for constitutional affairs and after approval by Parliament. They may be annexed to the Rules of Procedure for information.
2. Where such agreements imply the modification of existing procedural rights or obligations or establish new procedural rights or obligations for Members or bodies of Parliament, or otherwise imply modification or interpretation of the Rules of Procedure, the matter shall be referred to the committee responsible for examination in accordance with Rule 201(2) to (6) before the agreement is signed.
***
Annexing interinstitutional agreements to the EP Rules of Procedure
As we saw in Rule 120, interinstitutional agreements may be annexed to the EP’s Rules of Procedure. Rule 204 gives further directions on the arrangement of annexes, with point (c) dedicated to interinstitutional agreements.
Rule 204 Arrangement of annexes
The annexes to these Rules of Procedure shall be arranged under the following three headings:
a) implementing provisions for procedures under these Rules, adopted by a majority of the votes cast (Annex VI);
b) provisions adopted in implementation of specific terms of the Rules of Procedure and in accordance with the procedures and majority rules laid down therein (Annexes I, II, III, IV, V, VII(A) and (C), IX and XV);
c) interinstitutional agreements or other provisions adopted pursuant to the Treaties which are applicable within Parliament or which have a bearing on its operation. Decisions to annex such provisions to the Rules of Procedure shall be taken by Parliament by a majority of the votes cast, on a proposal from its committee responsible (Annexes VII(B), VIII, X, XI, XII, XIII, XIV and XVI).
***
Annexed interinstitutional agreements
The annexes mentioned in Rule 204(c) and in the Index of the EP Rules of Procedure give an indication of the subjects covered.
***
Annex VII.B
VII.B.Access by Parliament to sensitive information in the field of security and defence policy
Interinstitutional Agreement of 20 November 2002 between the European Parliament and the Council concerning access by the European Parliament to sensitive information of the Council in the field of security and defence policy (OJ 30.11.2002 C 298/1).
***
Annex VII.C
VII.C.Implementation of the Interinstitutional Agreement governing Parliament access to sensitive information in the sphere of security and defence policy
European Parliament decision of 23 October 2002 on the implementation of the Interinstitutional Agreement governing European Parliament access to sensitive Council information in the sphere of security and defence policy (OJ 30.11.2002 C 298/4).
***
Annex VIII
Annex VIII Detailed provisions governing the exercise of the European Parliament's right of inquiry
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).
***
Annex X
Annex X Performance of the Ombudsman's duties
Annex X.A Decision of the European Parliament on the regulations and general conditions governing the performance of the Ombudsman's duties (adopted by Parliament on 9 March 1994, OJ 4.5.1994 L 113/15, and amended by its decisions of 14 March 2002, OJ 9.4.2002 L 92/13, and 18 June 2008, OJ 17.7.2008 L 189/25), and Annex X.B Decision of the European Ombudsman adopting implementing provisions (adopted on 8 July 2002 and amended by decision of the Ombudsman of 5 April 2004), are at least formally separate decisions, but the inquiries of the Ombudsman require cooperation from the EU institutions and bodies.
***
Annex XI OLAF
At least formally Annex XI contains a unilateral decision adopted on 18 November 1999 by the European Parliament, but it pertains to investigations by the European Anti-Fraud Office (OLAF):
ANNEX XI Prevention of fraud, corruption and any illegal activity detrimental to the Communities' interests
European Parliament Decision concerning the terms and conditions for internal investigations in relation to the prevention of fraud, corruption and any illegal activity detrimental to the Communities' interests
***
Annex XII Comitology
The so called Comitology procedures are mainly played out between the Council (member states) and the Commission, but a complementary agreement between the European Parliament and the Commission provides that the EP is to be kept informed about the committee proceedings.
In a gracious bow to transparency the EU member states even allow the European Parliament to know ‘lists of the authorities to which the persons designated by the Member States to represent them belong’. [Wow!]
ANNEX XII Agreement between the European Parliament and the Commission on procedures for implementing Council Decision 1999/468/EC laying down the procedures for the exercise of implementing powers conferred on the Commission, as amended by Decision 2006/512/EC.
***
Annex XIII Framework agreement Commission
The relations with the Commission have been covered in a Framework Agreement (EP decision of 26 May 2005), with provisions on confidential information in Annex 1 and a timetable for the Commission’s legislative and work programme in Annex 2.
.
Annex XIII Framework Agreement on relations between the European Parliament and the Commission has the following scope:
I. SCOPE
1. The two Institutions agree on the following measures to strengthen the political responsibility and legitimacy of the Commission, extend constructive dialogue, improve the flow of information between the two Institutions and improve the coordination of procedures and planning.
They also agree on specific implementing measures for the forwarding of confidential Commission documents and information, as set out in Annex 1 and on the timetable for the Commission’s legislative and work programme, as set out in Annex 2.
***
Annex XIV
Annex XIV is mentioned in Rule 204(c), but it has been deleted.
***
Annex XVI Public access to documents
The provisions on the public’s access to documents takes the form of a joint Regulation:
Annex XVI Regulation (EC) No 1049/2001 on public access to documents
European Parliament and Council Regulation (EC) No 1049/2001 of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 31.5.2001 L 145/43).
This Regulation has direct bearing on the rights of EU citizens. Therefore there is reason to mention the Commission’s controversial proposal to amend the Regulation: Draft Regulation of the European Parliament and of the Council regarding public access to European Parliament, Council and Commission documents (Brussels, 30.4.2008 COM(2008) 229 final).
On 19 February 2009 the European Parliament’s Committee on Civil Liberties, Justice and Home Affairs (LIBE) has tabled a report A6-0077/2009, by rapporteur Michael Cashman.
The report proposes the approval of the proposal as adapted to the recommendations of the Consultative Working Party of the Legal Services of the European Parliament, the Council and the Commission (and incorporating the technical amendments approved by the Committee on Legal Affairs), with amendments:
http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//NONSGML+REPORT+A6-2009-0077+0+DOC+PDF+V0//EN
Ralf Grahn
The treaties define the competences of the European Union (European Community) as a whole and assign the roles to the players, but much of their interaction is left unregulated at this level.
The institutions have therefore developed practices and concluded agreements to ensure functioning relations. Interinstitutional agreements are a means to this end.
These agreements are neither well indexed nor presented on the web pages of the institutions, but we aim to present a rough sketch on the basis of what we find on the basis of the Rules of Procedure of the European Parliament. This leaves certain interinstitutional agreements outside the scope of this blog post (at least in part: Council, budget procedures, comitology, subsidiarity, better regulation).
One of the annexes to the EP Rules of Procedure has direct bearing on the rights of EU citizens. We add some information about the current stage of the Commission’s controversial proposal regarding public access to documents.
***
EP Rules of Procedure: General rule
The Rules of Procedure of the European Parliament (16th edition, October 2008) illustrate the aims and the forms of so called interinstitutional agreements. The aim is to improve or clarify procedures. According to Rule 120 these interinstitutional agreements can appear in various forms. They are subject to scrutiny before approval by the European Parliament:
CHAPTER 6 INTERINSTITUTIONAL AGREEMENTS
Rule 120 Interinstitutional agreements
1. Parliament may enter into agreements with other institutions in the context of the application of the Treaties or in order to improve or clarify procedures.
Such agreements may take the form of joint declarations, exchanges of letters or codes of conduct or other appropriate instruments. They shall be signed by the President after examination by the committee responsible for constitutional affairs and after approval by Parliament. They may be annexed to the Rules of Procedure for information.
2. Where such agreements imply the modification of existing procedural rights or obligations or establish new procedural rights or obligations for Members or bodies of Parliament, or otherwise imply modification or interpretation of the Rules of Procedure, the matter shall be referred to the committee responsible for examination in accordance with Rule 201(2) to (6) before the agreement is signed.
***
Annexing interinstitutional agreements to the EP Rules of Procedure
As we saw in Rule 120, interinstitutional agreements may be annexed to the EP’s Rules of Procedure. Rule 204 gives further directions on the arrangement of annexes, with point (c) dedicated to interinstitutional agreements.
Rule 204 Arrangement of annexes
The annexes to these Rules of Procedure shall be arranged under the following three headings:
a) implementing provisions for procedures under these Rules, adopted by a majority of the votes cast (Annex VI);
b) provisions adopted in implementation of specific terms of the Rules of Procedure and in accordance with the procedures and majority rules laid down therein (Annexes I, II, III, IV, V, VII(A) and (C), IX and XV);
c) interinstitutional agreements or other provisions adopted pursuant to the Treaties which are applicable within Parliament or which have a bearing on its operation. Decisions to annex such provisions to the Rules of Procedure shall be taken by Parliament by a majority of the votes cast, on a proposal from its committee responsible (Annexes VII(B), VIII, X, XI, XII, XIII, XIV and XVI).
***
Annexed interinstitutional agreements
The annexes mentioned in Rule 204(c) and in the Index of the EP Rules of Procedure give an indication of the subjects covered.
***
Annex VII.B
VII.B.Access by Parliament to sensitive information in the field of security and defence policy
Interinstitutional Agreement of 20 November 2002 between the European Parliament and the Council concerning access by the European Parliament to sensitive information of the Council in the field of security and defence policy (OJ 30.11.2002 C 298/1).
***
Annex VII.C
VII.C.Implementation of the Interinstitutional Agreement governing Parliament access to sensitive information in the sphere of security and defence policy
European Parliament decision of 23 October 2002 on the implementation of the Interinstitutional Agreement governing European Parliament access to sensitive Council information in the sphere of security and defence policy (OJ 30.11.2002 C 298/4).
***
Annex VIII
Annex VIII Detailed provisions governing the exercise of the European Parliament's right of inquiry
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).
***
Annex X
Annex X Performance of the Ombudsman's duties
Annex X.A Decision of the European Parliament on the regulations and general conditions governing the performance of the Ombudsman's duties (adopted by Parliament on 9 March 1994, OJ 4.5.1994 L 113/15, and amended by its decisions of 14 March 2002, OJ 9.4.2002 L 92/13, and 18 June 2008, OJ 17.7.2008 L 189/25), and Annex X.B Decision of the European Ombudsman adopting implementing provisions (adopted on 8 July 2002 and amended by decision of the Ombudsman of 5 April 2004), are at least formally separate decisions, but the inquiries of the Ombudsman require cooperation from the EU institutions and bodies.
***
Annex XI OLAF
At least formally Annex XI contains a unilateral decision adopted on 18 November 1999 by the European Parliament, but it pertains to investigations by the European Anti-Fraud Office (OLAF):
ANNEX XI Prevention of fraud, corruption and any illegal activity detrimental to the Communities' interests
European Parliament Decision concerning the terms and conditions for internal investigations in relation to the prevention of fraud, corruption and any illegal activity detrimental to the Communities' interests
***
Annex XII Comitology
The so called Comitology procedures are mainly played out between the Council (member states) and the Commission, but a complementary agreement between the European Parliament and the Commission provides that the EP is to be kept informed about the committee proceedings.
In a gracious bow to transparency the EU member states even allow the European Parliament to know ‘lists of the authorities to which the persons designated by the Member States to represent them belong’. [Wow!]
ANNEX XII Agreement between the European Parliament and the Commission on procedures for implementing Council Decision 1999/468/EC laying down the procedures for the exercise of implementing powers conferred on the Commission, as amended by Decision 2006/512/EC.
***
Annex XIII Framework agreement Commission
The relations with the Commission have been covered in a Framework Agreement (EP decision of 26 May 2005), with provisions on confidential information in Annex 1 and a timetable for the Commission’s legislative and work programme in Annex 2.
.
Annex XIII Framework Agreement on relations between the European Parliament and the Commission has the following scope:
I. SCOPE
1. The two Institutions agree on the following measures to strengthen the political responsibility and legitimacy of the Commission, extend constructive dialogue, improve the flow of information between the two Institutions and improve the coordination of procedures and planning.
They also agree on specific implementing measures for the forwarding of confidential Commission documents and information, as set out in Annex 1 and on the timetable for the Commission’s legislative and work programme, as set out in Annex 2.
***
Annex XIV
Annex XIV is mentioned in Rule 204(c), but it has been deleted.
***
Annex XVI Public access to documents
The provisions on the public’s access to documents takes the form of a joint Regulation:
Annex XVI Regulation (EC) No 1049/2001 on public access to documents
European Parliament and Council Regulation (EC) No 1049/2001 of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 31.5.2001 L 145/43).
This Regulation has direct bearing on the rights of EU citizens. Therefore there is reason to mention the Commission’s controversial proposal to amend the Regulation: Draft Regulation of the European Parliament and of the Council regarding public access to European Parliament, Council and Commission documents (Brussels, 30.4.2008 COM(2008) 229 final).
On 19 February 2009 the European Parliament’s Committee on Civil Liberties, Justice and Home Affairs (LIBE) has tabled a report A6-0077/2009, by rapporteur Michael Cashman.
The report proposes the approval of the proposal as adapted to the recommendations of the Consultative Working Party of the Legal Services of the European Parliament, the Council and the Commission (and incorporating the technical amendments approved by the Committee on Legal Affairs), with amendments:
http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//NONSGML+REPORT+A6-2009-0077+0+DOC+PDF+V0//EN
Ralf Grahn
Monday, 19 January 2009
EU Defence Transfers Directive scope
The aim of new European Community (European Union) Defence Transfers Directive is to cut red tape, reducing waste and delays, when defence-related products are bought and sold within the European Union.
***
The Defence Transfers Directive was adopted by the European Parliament on 16 December 2008. The new Directive is still waiting for first reading (formal adoption) by the Council, but since the amendments have been agreed between the European Parliament and the Council, the EP text should be the same as the one to be published in the Official Journal of the European Union.
The Defence Transfers Directive, officially Directive 2009/.../EC of the European Parliament and of the Council on simplifying terms and conditions of transfers of defence-related products within the Community, is available here:
http://www.europarl.europa.eu/sides/getDoc.do;jsessionid=FE68FF66A91E1C708351395837549126.node1?pubRef=-//EP//TEXT+TA+P6-TA-2008-0603+0+DOC+XML+V0//EN#BKMD-29
***
Related blog posts
We have discussed matters relating to defence and security procurement, national security interests and treaty principles in earlier blog posts, which may be of interest to our readers:
· EU Procurement Directive: Secret contracts and security measures
· EU defence industry and market: Is there a future?
· EU Law: Defence equipment transfers
· EU Law: New Defence Procurement Directive
· EU Law: Defence Transfers Directive
***
Subject matter
Aim
The aim of the new Defence Transfers Directive is to make intra-Community transfers of defence-related products more compatible with the internal market, by simplifying rules and procedures.
Recitals 1 to 4 of the Directive explain the background:
(1) The Treaty provides for the establishment of an internal market, including the abolition between Member States of obstacles to freedom of movement for goods and services, and the institution of a system ensuring that competition in the common market is not distorted.
(2) The Treaty provisions establishing the internal market apply to all goods and services provided against remuneration including defence-related products but do not preclude Member States under certain conditions from taking other measures in individual cases where they consider it necessary to protect essential interests of their security.
(3) The laws, regulations and administrative measures in Member States concerning the transfer of defence-related products within the Community contain disparities, which may impede the free movement of defence-related products and may distort competition within the internal market, hampering innovation, industrial cooperation and the competitiveness of the defence industry in the European Union.
(4) The objectives pursued generally by the laws and regulations of Member States include the preservation of human rights, peace, security and stability through systems of strict control and restriction of exportation and proliferation of defence-related products to third countries as well as to other Member States.
***
Transfer and export policies
The member states of the European Union still decide on their transfer and export policies with regard to defence-related products.
Recitals 6 and 7 explain that the Defence Transfers Directive does not limit the transfer policies or export policies of member states:
(6) Those laws and regulations of Member States therefore need to be harmonised in such a way as to simplify the intra-community transfer of defence-related products in order to ensure the proper functioning of the internal market. This Directive only deals with rules and procedures as far as defence-related products are concerned, and does not consequently affect transfer policies of Member States.
(7) Harmonisation of those laws and regulations of Member States should not prejudice international obligations and commitments of Member States or their discretion as regards policy on the export of defence-related products.
***
Treaty derogations on security grounds
The member states can still evoke their (essential) security interests according to Articles 30 and 296(1)(b) and 296(1)(a) of the Treaty establishing the European Community (TEC), although the provisions and ECJ case law limit the scope of such derogations. In other words, exceptions have to be justified.
The derogations in Article 30 TEC include prohibitions or restrictions on imports, exports or goods in transit on grounds of public policy and public security.
Article 296(1)(b) TEC concerns the protection of essential security interests of a member state in connection with the production or trade in arms, munitions and war material (as defined by the Council on 15 April 1958).
Article 296(1)(a) allows a member state to withhold information, if the disclosure would be contrary to its essential security interests.
Recital 5 of the Defence Transfers Directive acknowledges that there are legitimate exceptions to the free movement of goods and services, on a case by case basis. The treaty derogations still apply, if the conditions are met:
(5) Such restrictions on the movement of defence-related products within the Community cannot be abolished generally through direct application of the principles of free movement of goods and services provided by the Treaty as those restrictions may be justified on a case by case basis in accordance with Articles 30 or 296 of the Treaty, which continue to be applicable by Member States provided their conditions are met.
***
First and second pillar
The Defence Transfers Directive is based on the first pillar (Community pillar), with its internal market rules. The sale of defence-related products within the European Community (European Union) is harmonised to some extent, but matters relating to the common foreign and security policy (CFSP), including the common security and defence policy (CSDP), belong to the intergovernmental second pillar of the European Union.
The fourth paragraph states that the minimum rules of the Directive are no obstacle to further intergovernmental cooperation in this field.
This is in line with the presentation given by Recital 28:
(28) Member States should remain entitled to pursue and further develop their intergovernmental cooperation, whilst respecting the provisions of this Directive.
***
Adopted text
Here is the text of Article 1 of the Defence Transfers Directive, as adopted by the European Parliament:
Article 1
Subject matter
1. The aim of this Directive is to simplify rules and procedures applicable to the intra-Community transfer of defence-related products in order to ensure proper functioning of the internal market.
2. This Directive does not affect the discretion of Member States as regards policy on the export of defence-related products.
3. The application of this Directive shall be subject to Articles 30 and 296 of the Treaty.
4. This Directive does not affect the possibility for Member States to pursue and further develop intergovernmental co-operations, whilst respecting its provisions.
***
Scope
The Defence Transfers Directive applies to intra-Community transfers of defence-related products. These have been listed in the Annex to the Directive.
Recitals 9 and 37 of the Directive express the desire to update the Annex list to be made identical in scope with the Common Military List of the European Union (CML):
(9) This Directive should cover all the defence-related products which correspond to those listed in the Common Military List of the European Union including components and technologies.
(37) The list in the Annex of defence-related products should be updated in strict conformity with the Common Military List of the European Union (CML).
-----
(Footnote 4 referred to the CML as published in 2007, but there is a later update, published OJEU 18.4.2008 C 98/1.)
***
Adopted text
Here is the adopted text of Article 2:
Article 2
Scope
This Directive applies to defence-related products as listed in the Annex.
***
Definitions
Some of the terms of the Defence Transfer Directive are defined in Article 3, but I let the adopted text speak for itself:
Article 3
Definitions
For the purposes of this Directive , the following definitions shall apply:
1) "defence-related product" means any product listed in the Annex;
2) "transfer" means any transmission or movement of a defence-related product from a supplier to a recipient in another Member State;
3) "supplier" means the legal or natural person established within the Community who is legally responsible for a transfer;
4) "recipient" means the legal or natural person established within the Community who is legally responsible for a receipt of a transfer in another Member State;
5) "transfer licence" means an authorisation by a national authority of a Member State for suppliers to transfer defence-related products to a recipient in another Member State;
6) "export licence" means an authorisation to supply defence-related products to a legal or natural person in any third country;
7) "passage through" means the transport of defence-related products through one or more Member States other than the Member State of dispatch and the Member State of destination.
Ralf Grahn
***
The Defence Transfers Directive was adopted by the European Parliament on 16 December 2008. The new Directive is still waiting for first reading (formal adoption) by the Council, but since the amendments have been agreed between the European Parliament and the Council, the EP text should be the same as the one to be published in the Official Journal of the European Union.
The Defence Transfers Directive, officially Directive 2009/.../EC of the European Parliament and of the Council on simplifying terms and conditions of transfers of defence-related products within the Community, is available here:
http://www.europarl.europa.eu/sides/getDoc.do;jsessionid=FE68FF66A91E1C708351395837549126.node1?pubRef=-//EP//TEXT+TA+P6-TA-2008-0603+0+DOC+XML+V0//EN#BKMD-29
***
Related blog posts
We have discussed matters relating to defence and security procurement, national security interests and treaty principles in earlier blog posts, which may be of interest to our readers:
· EU Procurement Directive: Secret contracts and security measures
· EU defence industry and market: Is there a future?
· EU Law: Defence equipment transfers
· EU Law: New Defence Procurement Directive
· EU Law: Defence Transfers Directive
***
Subject matter
Aim
The aim of the new Defence Transfers Directive is to make intra-Community transfers of defence-related products more compatible with the internal market, by simplifying rules and procedures.
Recitals 1 to 4 of the Directive explain the background:
(1) The Treaty provides for the establishment of an internal market, including the abolition between Member States of obstacles to freedom of movement for goods and services, and the institution of a system ensuring that competition in the common market is not distorted.
(2) The Treaty provisions establishing the internal market apply to all goods and services provided against remuneration including defence-related products but do not preclude Member States under certain conditions from taking other measures in individual cases where they consider it necessary to protect essential interests of their security.
(3) The laws, regulations and administrative measures in Member States concerning the transfer of defence-related products within the Community contain disparities, which may impede the free movement of defence-related products and may distort competition within the internal market, hampering innovation, industrial cooperation and the competitiveness of the defence industry in the European Union.
(4) The objectives pursued generally by the laws and regulations of Member States include the preservation of human rights, peace, security and stability through systems of strict control and restriction of exportation and proliferation of defence-related products to third countries as well as to other Member States.
***
Transfer and export policies
The member states of the European Union still decide on their transfer and export policies with regard to defence-related products.
Recitals 6 and 7 explain that the Defence Transfers Directive does not limit the transfer policies or export policies of member states:
(6) Those laws and regulations of Member States therefore need to be harmonised in such a way as to simplify the intra-community transfer of defence-related products in order to ensure the proper functioning of the internal market. This Directive only deals with rules and procedures as far as defence-related products are concerned, and does not consequently affect transfer policies of Member States.
(7) Harmonisation of those laws and regulations of Member States should not prejudice international obligations and commitments of Member States or their discretion as regards policy on the export of defence-related products.
***
Treaty derogations on security grounds
The member states can still evoke their (essential) security interests according to Articles 30 and 296(1)(b) and 296(1)(a) of the Treaty establishing the European Community (TEC), although the provisions and ECJ case law limit the scope of such derogations. In other words, exceptions have to be justified.
The derogations in Article 30 TEC include prohibitions or restrictions on imports, exports or goods in transit on grounds of public policy and public security.
Article 296(1)(b) TEC concerns the protection of essential security interests of a member state in connection with the production or trade in arms, munitions and war material (as defined by the Council on 15 April 1958).
Article 296(1)(a) allows a member state to withhold information, if the disclosure would be contrary to its essential security interests.
Recital 5 of the Defence Transfers Directive acknowledges that there are legitimate exceptions to the free movement of goods and services, on a case by case basis. The treaty derogations still apply, if the conditions are met:
(5) Such restrictions on the movement of defence-related products within the Community cannot be abolished generally through direct application of the principles of free movement of goods and services provided by the Treaty as those restrictions may be justified on a case by case basis in accordance with Articles 30 or 296 of the Treaty, which continue to be applicable by Member States provided their conditions are met.
***
First and second pillar
The Defence Transfers Directive is based on the first pillar (Community pillar), with its internal market rules. The sale of defence-related products within the European Community (European Union) is harmonised to some extent, but matters relating to the common foreign and security policy (CFSP), including the common security and defence policy (CSDP), belong to the intergovernmental second pillar of the European Union.
The fourth paragraph states that the minimum rules of the Directive are no obstacle to further intergovernmental cooperation in this field.
This is in line with the presentation given by Recital 28:
(28) Member States should remain entitled to pursue and further develop their intergovernmental cooperation, whilst respecting the provisions of this Directive.
***
Adopted text
Here is the text of Article 1 of the Defence Transfers Directive, as adopted by the European Parliament:
Article 1
Subject matter
1. The aim of this Directive is to simplify rules and procedures applicable to the intra-Community transfer of defence-related products in order to ensure proper functioning of the internal market.
2. This Directive does not affect the discretion of Member States as regards policy on the export of defence-related products.
3. The application of this Directive shall be subject to Articles 30 and 296 of the Treaty.
4. This Directive does not affect the possibility for Member States to pursue and further develop intergovernmental co-operations, whilst respecting its provisions.
***
Scope
The Defence Transfers Directive applies to intra-Community transfers of defence-related products. These have been listed in the Annex to the Directive.
Recitals 9 and 37 of the Directive express the desire to update the Annex list to be made identical in scope with the Common Military List of the European Union (CML):
(9) This Directive should cover all the defence-related products which correspond to those listed in the Common Military List of the European Union including components and technologies.
(37) The list in the Annex of defence-related products should be updated in strict conformity with the Common Military List of the European Union (CML).
-----
(Footnote 4 referred to the CML as published in 2007, but there is a later update, published OJEU 18.4.2008 C 98/1.)
***
Adopted text
Here is the adopted text of Article 2:
Article 2
Scope
This Directive applies to defence-related products as listed in the Annex.
***
Definitions
Some of the terms of the Defence Transfer Directive are defined in Article 3, but I let the adopted text speak for itself:
Article 3
Definitions
For the purposes of this Directive , the following definitions shall apply:
1) "defence-related product" means any product listed in the Annex;
2) "transfer" means any transmission or movement of a defence-related product from a supplier to a recipient in another Member State;
3) "supplier" means the legal or natural person established within the Community who is legally responsible for a transfer;
4) "recipient" means the legal or natural person established within the Community who is legally responsible for a receipt of a transfer in another Member State;
5) "transfer licence" means an authorisation by a national authority of a Member State for suppliers to transfer defence-related products to a recipient in another Member State;
6) "export licence" means an authorisation to supply defence-related products to a legal or natural person in any third country;
7) "passage through" means the transport of defence-related products through one or more Member States other than the Member State of dispatch and the Member State of destination.
Ralf Grahn
Wednesday, 6 February 2008
EU Treaty of Lisbon: Protocols and Annexes
In the Treaty of Lisbon version of the Treaty on European Union (TEU), among the Final provisions, we find the new Article 49b (OJ 17.12.2007 C 306/40), slim as the lid of Pandora’s box:
59) The following Article 49 B shall be inserted:
Article 49 B
The Protocols and Annexes to the Treaties shall form an integral part thereof.
***
There is no corresponding Article in the existing TEU, but Article 311 of the Treaty establishing the European Community (TEC) has the following wording (for the latest consolidated version of the TEU and TEC go to OJ 29.12.2006 C 321 E):
Article 311
The protocols annexed to this Treaty by common accord of the Member States shall form an integral part thereof.
According to the Lisbon Treaty, Article 311 TEC is repealed (OJ 17.12.2007 C 306/132, point 293).
***
Since the European Convention’s draft Treaty establishing a Constitution for Europe was unified, the corresponding Article IV-6 referred to the whole Treaty (OJ 18.7.2003 C 169/92):
Article IV-6
Protocols
The protocols annexed to this Treaty shall form an integral part thereof.
***
The same unified structure applied to the Treaty establishing a Constitution for Europe (OJ 16.12.2004 C 310/189):
Article IV-442
Protocols and Annexes
The Protocols and Annexes to this Treaty shall form an integral part thereof.
***
In the law of the European Union, a new legal order, the Treaties are primary legislation. Currently the Treaties are the Treaty on European Union (TEU) and the Treaty establishing the European Community (TEC). If the Treaty of Lisbon enters into force, there would be the amended Treaty on European Union (TEU) and the amended and renamed Treaty on the Functioning of the European Union (TFEU).
The current TEC speaks of the protocols as an integral part of the Treaty, as did the draft Constitution. The Constitution added the Annexes to the Protocols (annexed to the Treaty by common accord), as does the Lisbon Treaty. The scope of the provision widens from the EC to the EU.
The Protocols form an integral part of the Treaties, and they are ratified as such. They have legal force, and they can contain detailed provisions meant not to burden the Treaty texts themselves.
The Declarations have political force, but are not to be legally binding. There have been joint Declarations, based on common accord, and unilateral Declarations made by one or more member states, but not politically binding on the whole.
The new wording ‘and Annexes’ merits attention. The UK House of Commons new Research Paper (page 75) a bit hastily says that Article 49b “like the present Article 311 TEC, states that the Protocols and Annexes will form an integral part of the Treaties”.
As we have seen, the words “and Annexes” have been added, although Article 311 TEC uses the phrase “(t)he protocols annexed to this Treaty by common accord of the Member States”. But the conclusion of the Research Paper seems sound:
“This is a new clause in the TEU, extending the application of current Article 311 TEC, which is repealed. It means the Protocols and Annexes will have the full legal effect of the Treaty articles themselves. This is not the case for Declarations attached to the Treaties.”
***
We can now take a look at how the intergovernmental conference (IGC 2007) has structured its Final Act (OJ 2007/C 306/02).
As far as I understand, the legally binding parts are:
I the TEU and the TFEU
II the Protocols, namely:
A. Protocols annexed to the Treaty on European Union, to the Treaty establishing the European Community, and/or the Treaty establishing the European Atomic Energy Community
B. Protocols annexed to the Treaty of Lisbon
III. Annex to the Treaty of Lisbon (tables of equivalences)
They form an integral part of the Treaties.
FINAL ACT (OJ 17.12.2007 C 306/229)
THE CONFERENCE OF THE REPRESENTATIVES OF THE GOVERNMENTS OF THE MEMBER STATES,
convened in Brussels on 23 July 2007 to adopt by common accord the amendments to be made to theTreaty on European Union, the Treaty establishing the European Community, and to the Treaty establishing the European Atomic Energy Community, has adopted the following texts:
I. The Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community
II. Protocols
A. Protocols annexed to the Treaty on European Union, to the Treaty establishing the European Community, and/or the Treaty establishing the European Atomic Energy Community:
— Protocol on the role of national Parliaments in the European Union
— Protocol on the application of the principles of subsidiarity and proportionality
— Protocol on the Euro Group
— Protocol on permanent structured cooperation established by Article 28 A of the Treaty on European Union
— Protocol relating to Article 6(2) of the Treaty on European Union on the accession of the Union to the European Convention on the Protection of Human Rights and Fundamental Freedoms
— Protocol on the internal market and competition
— Protocol on the application of the Charter of Fundamental Rights of the European Union to Poland and to the United Kingdom
— Protocol on the exercise of shared competence
— Protocol on services of general interest
— Protocol on the Decision of the Council relating to the implementation of Article 9 C(4) of the Treaty on European Union and Article 205(2) of the Treaty on the Functioning of the European Union between 1 November 2014 and 31 March 2017 on the one hand, and as from 1 April 2017 on the other
— Protocol on transitional provisions
These are mainly new Protocols, some of them derived from the Constitutional Treaty and some the result of the IGC 2007 negotiations.
***
B. Protocols annexed to the Treaty of Lisbon
— Protocol No 1 amending the Protocols annexed to the Treaty on European Union, to the Treaty establishing the European Community and/or to the Treaty establishing the European Atomic Energy Community
— Tables of equivalences referred to in Article 2 of Protocol No 1 amending the protocols annexed to the Treaty on European Union, to the Treaty establishing the European Community and/or the Treaty establishing the European Atomic Energy Community
— Protocol No 2 amending the Treaty establishing the European Atomic Energy Community
Behind Protocol 1 of this group we find adaptations to 26 existing Protocols, including rules for the Court of Justice and the European Central Bank, as well as traditional opt-outs from areas of Community (EU) law for the United Kingdom, Ireland and Denmark.
Ten redundant Protocols are repealed according to the count of the Swedish government (page 398).
Protocol number 2 is an adaptation of the Treaty establishing the European Atomic Energy Community (EAEC). – In Declaration 54 the Federal Republic of Germany, Ireland, the
Republic of Hungary, the Republic of Austria and the Kingdom of Sweden note that the core provisions of the Treaty establishing the European Atomic Energy Community have not been substantially amended since its entry into force and need to be brought up to date. They therefore support the idea of a Conference of the Representatives of the Governments of the Member States, which should be convened as soon as possible.
***
III. Annex to the Treaty of Lisbon:
— Tables of equivalences referred to in Article 5 of the Treaty of Lisbon
This binding Annex contains the tables with the numbering of the current TEU, the original numbering of the Treaty of Lisbon and the numbering for the future consolidated TEU. The same goes for the TEC, the Treaty of Lisbon and the consolidated TFEU.
In addition to the current, Lisbon and future numbers of Articles, we have the Lisbon Treaty itself, divided into seven Articles. “Article 5 of the Treaty of Lisbon” refers to this numbering, under the Final Provisions in the Official Journal, page 133, where the renumbering is ordered:
Article 5(1) ToL
1. The articles, sections, chapters, titles and parts of the Treaty on European Union and of the
Treaty establishing the European Community, as amended by this Treaty, shall be renumbered in accordance with the tables of equivalences set out in the Annex to this Treaty, and which form an integral part of this Treaty.
The reader who feels slightly bewildered is excused.
***
The Declarations adopted by the IGC 2007 are annexed to the Final Act, but not to the Treaty. The joint Declarations would still be politically but not legally binding on the member states as a whole. There are two groups of joint Declarations:
A. Declarations concerning provisions of the Treaties
B. Declarations concerning Protocols annexed to the Treaties
The Conference has adopted the following declarations annexed to this Final Act.
A. Declarations concerning provisions of the Treaties
1. Declaration concerning the Charter of Fundamental Rights of the European Union
2. Declaration on Article 6(2) of the Treaty on European Union
3. Declaration on Article 7a of the Treaty on European Union
4. Declaration on the composition of the European Parliament
5. Declaration on the political agreement by the European Council concerning the draft Decision on the composition of the European Parliament
6. Declaration on Articles 9 B(5) and (6), Articles 9 D(6) and (7), and Article 9 E of the Treaty on European Union
7. Declaration on Article 9 C(4) of the Treaty on European Union and Article 205(2) of the Treaty on the Functioning of the European Union
8. Declaration on practical measures to be taken upon the entry into force of the Treaty of Lisbon as regards the Presidency of the European Council and of the Foreign Affairs Council
9. Declaration on Article 9 C(9) of the Treaty on European Union concerning the European Council decision on the exercise of the Presidency of the Council
10. Declaration on Article 9 D of the Treaty on European Union
11. Declaration on Article 9 D(6) and (7) of the Treaty on European Union
12. Declaration on Article 9 E of the Treaty on European Union
13. Declaration concerning the common foreign and security policy
14. Declaration concerning the common foreign and security policy
15. Declaration on Article 13a of the Treaty on European Union
16. Declaration on Article 53(2) of the Treaty on European Union
17. Declaration concerning primacy
18. Declaration in relation to the delimitation of competences
19. Declaration on Article 3 of the Treaty on the Functioning of the European Union
20. Declaration on Article 16 B of the Treaty on the Functioning of the European Union
21. Declaration on the protection of personal data in the fields of judicial cooperation in criminal matters and police cooperation
22. Declaration on Articles 42 and 63a of the Treaty on the Functioning of the European Union
23. Declaration on the second paragraph of Article 42 of the Treaty on the Functioning of the European Union
24. Declaration concerning the legal personality of the European Union
25. Declaration on Articles 61 H and 188 K of the Treaty on the Functioning of the European Union
26. Declaration on non-participation by a Member State in a measure based on Title IV of Part Three of the Treaty on the Functioning of the European Union
27. Declaration on Article 69 D(1), second subparagraph, of the Treaty on the Functioning of the European Union
28. Declaration on Article 78 of the Treaty on the Functioning of the European Union
29. Declaration on Article 87(2)(c) of the Treaty on the Functioning of the European Union
30. Declaration on Article 104 of the Treaty on the Functioning of the European Union
31. Declaration on Article 140 of the Treaty on the Functioning of the European Union
32. Declaration on Article 152(4)(c) of the Treaty on the Functioning of the European Union
33. Declaration on Article 158 of the Treaty on the Functioning of the European Union
34. Declaration on Article 163 of the Treaty on the Functioning of the European Union
35. Declaration on Article 176 A of the Treaty on the Functioning of the European Union
36. Declaration on Article 188 N of the Treaty on the Functioning of the European Union concerning the negotiation and conclusion of international agreements by Member States relating to the area of freedom, security and justice
37. Declaration on Article 188 R of the Treaty on the Functioning of the European Union
38. Declaration on Article 222 of the Treaty on the Functioning of the European Union regarding the number of Advocates-General in the Court of Justice
39. Declaration on Article 249 B of the Treaty on the Functioning of the European Union
40. Declaration on Article 280 D of the Treaty on the Functioning of the European Union
41. Declaration on Article 308 of the Treaty on the Functioning of the European Union
42. Declaration on Article 308 of the Treaty on the Functioning of the European Union
43. Declaration on Article 311a(6) of the Treaty on the Functioning of the European Union
B. Declarations concerning Protocols annexed to the Treaties
44. Declaration on Article 5 of the Protocol on the Schengen acquis integrated into the framework of the European Union
45. Declaration on Article 5(2) of the Protocol on the Schengen acquis integrated into the framework of the European Union
46. Declaration on Article 5(3) of the Protocol on the Schengen acquis integrated into the framework of the European Union
47. Declaration on Article 5(3), (4) and (5) of the Protocol on the Schengen acquis integrated into the framework of the European Union
48. Declaration concerning the Protocol on the position of Denmark
49. Declaration concerning Italy
50. Declaration concerning Article 10 of the Protocol on transitional provisions
***
Then there are the unilateral Declarations, by one or more member states, without legal force for the whole, but expressing the political intent of the declarants.
Furthermore, the Conference has noted the declarations listed hereafter and annexed to this Final Act:
51. Declaration by the Kingdom of Belgium on national Parliaments
52. Declaration by the Kingdom of Belgium, the Republic of Bulgaria, the Federal Republic of Germany, the Hellenic Republic, the Kingdom of Spain, the Italian Republic, the Republic of Cyprus, the Republic of Lithuania, the Grand-Duchy of Luxembourg, the Republic of Hungary, the Republic of Malta, the Republic of Austria, the Portuguese Republic, Romania, the Republic of Slovenia, and the Slovak Republic on the symbols of the European Union
53. Declaration by the Czech Republic on the Charter of Fundamental Rights of the European Union
54. Declaration by the Federal Republic of Germany, Ireland, the Republic of Hungary, the Republic of Austria and the Kingdom of Sweden
55. Declaration by the Kingdom of Spain and the United Kingdom of Great Britain and Northern Ireland
56. Declaration by Ireland on Article 3 of the Protocol on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice
57. Declaration by the Italian Republic on the composition of the European Parliament
58. Declaration by the Republic of Latvia, the Republic of Hungary and the Republic of Malta on the spelling of the name of the single currency in the Treaties
59. Declaration by the Kingdom of the Netherlands on Article 270a of the Treaty on the Functioning of the European Union
60. Declaration by the Kingdom of the Netherlands on Article 311a of the Treaty on the Functioning of the European Union
61. Declaration by the Republic of Poland on the Charter of Fundamental Rights of the European Union
62. Declaration by the Republic of Poland concerning the Protocol on the application of the Charter of Fundamental Rights of the European Union in relation to Poland and the United Kingdom
63. Declaration by the United Kingdom of Great Britain and Northern Ireland on the definition of the term ‘nationals’
64. Declaration by the United Kingdom of Great Britain and Northern Ireland on the franchise for elections to the European Parliament
65. Declaration by the United Kingdom of Great Britain and Northern Ireland on Article 61 H of the Treaty on the Functioning of the European Union
***
If my understanding is correct, the only legally binding addition to the Treaties themselves and the Protocols is the Annex containing the tables of equivalences. Thus, there is no change concerning the political nature of the Declarations annexed to the Final Act, but not to the Treaties.
Ralf Grahn
Sources:
UK House of Commons Library Research Paper 08/09, 24 January 2008: The Treaty of Lisbon: amendments to the Treaty on European Union
http://www.parliament.uk/commons/lib/research/rp2008/rp08-009.pdf
Government of Sweden, Regeringskansliet: Lissabonfördraget, Statsrådsberedningen, Departementsserien (Ds) Ds 2007:48, 20 december 2007
http://www.regeringen.se/sb/d/108/a/94981
Government of Denmark: Lov om aendring af lov om Danmarks tiltraedelse af De Europaeiske Faelleskaber og Den Europaeiske Union (Danmarks ratification af Lissabon-traktaten); Lovforslag nr. L 53, Fremsat den 9. januar 2008 af udenrigsministeren (Per Stig Møller); Bind III
http://www.eu-oplysningen.dk/upload/application/pdf/c510022c/BindIII.pdf
59) The following Article 49 B shall be inserted:
Article 49 B
The Protocols and Annexes to the Treaties shall form an integral part thereof.
***
There is no corresponding Article in the existing TEU, but Article 311 of the Treaty establishing the European Community (TEC) has the following wording (for the latest consolidated version of the TEU and TEC go to OJ 29.12.2006 C 321 E):
Article 311
The protocols annexed to this Treaty by common accord of the Member States shall form an integral part thereof.
According to the Lisbon Treaty, Article 311 TEC is repealed (OJ 17.12.2007 C 306/132, point 293).
***
Since the European Convention’s draft Treaty establishing a Constitution for Europe was unified, the corresponding Article IV-6 referred to the whole Treaty (OJ 18.7.2003 C 169/92):
Article IV-6
Protocols
The protocols annexed to this Treaty shall form an integral part thereof.
***
The same unified structure applied to the Treaty establishing a Constitution for Europe (OJ 16.12.2004 C 310/189):
Article IV-442
Protocols and Annexes
The Protocols and Annexes to this Treaty shall form an integral part thereof.
***
In the law of the European Union, a new legal order, the Treaties are primary legislation. Currently the Treaties are the Treaty on European Union (TEU) and the Treaty establishing the European Community (TEC). If the Treaty of Lisbon enters into force, there would be the amended Treaty on European Union (TEU) and the amended and renamed Treaty on the Functioning of the European Union (TFEU).
The current TEC speaks of the protocols as an integral part of the Treaty, as did the draft Constitution. The Constitution added the Annexes to the Protocols (annexed to the Treaty by common accord), as does the Lisbon Treaty. The scope of the provision widens from the EC to the EU.
The Protocols form an integral part of the Treaties, and they are ratified as such. They have legal force, and they can contain detailed provisions meant not to burden the Treaty texts themselves.
The Declarations have political force, but are not to be legally binding. There have been joint Declarations, based on common accord, and unilateral Declarations made by one or more member states, but not politically binding on the whole.
The new wording ‘and Annexes’ merits attention. The UK House of Commons new Research Paper (page 75) a bit hastily says that Article 49b “like the present Article 311 TEC, states that the Protocols and Annexes will form an integral part of the Treaties”.
As we have seen, the words “and Annexes” have been added, although Article 311 TEC uses the phrase “(t)he protocols annexed to this Treaty by common accord of the Member States”. But the conclusion of the Research Paper seems sound:
“This is a new clause in the TEU, extending the application of current Article 311 TEC, which is repealed. It means the Protocols and Annexes will have the full legal effect of the Treaty articles themselves. This is not the case for Declarations attached to the Treaties.”
***
We can now take a look at how the intergovernmental conference (IGC 2007) has structured its Final Act (OJ 2007/C 306/02).
As far as I understand, the legally binding parts are:
I the TEU and the TFEU
II the Protocols, namely:
A. Protocols annexed to the Treaty on European Union, to the Treaty establishing the European Community, and/or the Treaty establishing the European Atomic Energy Community
B. Protocols annexed to the Treaty of Lisbon
III. Annex to the Treaty of Lisbon (tables of equivalences)
They form an integral part of the Treaties.
FINAL ACT (OJ 17.12.2007 C 306/229)
THE CONFERENCE OF THE REPRESENTATIVES OF THE GOVERNMENTS OF THE MEMBER STATES,
convened in Brussels on 23 July 2007 to adopt by common accord the amendments to be made to theTreaty on European Union, the Treaty establishing the European Community, and to the Treaty establishing the European Atomic Energy Community, has adopted the following texts:
I. The Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community
II. Protocols
A. Protocols annexed to the Treaty on European Union, to the Treaty establishing the European Community, and/or the Treaty establishing the European Atomic Energy Community:
— Protocol on the role of national Parliaments in the European Union
— Protocol on the application of the principles of subsidiarity and proportionality
— Protocol on the Euro Group
— Protocol on permanent structured cooperation established by Article 28 A of the Treaty on European Union
— Protocol relating to Article 6(2) of the Treaty on European Union on the accession of the Union to the European Convention on the Protection of Human Rights and Fundamental Freedoms
— Protocol on the internal market and competition
— Protocol on the application of the Charter of Fundamental Rights of the European Union to Poland and to the United Kingdom
— Protocol on the exercise of shared competence
— Protocol on services of general interest
— Protocol on the Decision of the Council relating to the implementation of Article 9 C(4) of the Treaty on European Union and Article 205(2) of the Treaty on the Functioning of the European Union between 1 November 2014 and 31 March 2017 on the one hand, and as from 1 April 2017 on the other
— Protocol on transitional provisions
These are mainly new Protocols, some of them derived from the Constitutional Treaty and some the result of the IGC 2007 negotiations.
***
B. Protocols annexed to the Treaty of Lisbon
— Protocol No 1 amending the Protocols annexed to the Treaty on European Union, to the Treaty establishing the European Community and/or to the Treaty establishing the European Atomic Energy Community
— Tables of equivalences referred to in Article 2 of Protocol No 1 amending the protocols annexed to the Treaty on European Union, to the Treaty establishing the European Community and/or the Treaty establishing the European Atomic Energy Community
— Protocol No 2 amending the Treaty establishing the European Atomic Energy Community
Behind Protocol 1 of this group we find adaptations to 26 existing Protocols, including rules for the Court of Justice and the European Central Bank, as well as traditional opt-outs from areas of Community (EU) law for the United Kingdom, Ireland and Denmark.
Ten redundant Protocols are repealed according to the count of the Swedish government (page 398).
Protocol number 2 is an adaptation of the Treaty establishing the European Atomic Energy Community (EAEC). – In Declaration 54 the Federal Republic of Germany, Ireland, the
Republic of Hungary, the Republic of Austria and the Kingdom of Sweden note that the core provisions of the Treaty establishing the European Atomic Energy Community have not been substantially amended since its entry into force and need to be brought up to date. They therefore support the idea of a Conference of the Representatives of the Governments of the Member States, which should be convened as soon as possible.
***
III. Annex to the Treaty of Lisbon:
— Tables of equivalences referred to in Article 5 of the Treaty of Lisbon
This binding Annex contains the tables with the numbering of the current TEU, the original numbering of the Treaty of Lisbon and the numbering for the future consolidated TEU. The same goes for the TEC, the Treaty of Lisbon and the consolidated TFEU.
In addition to the current, Lisbon and future numbers of Articles, we have the Lisbon Treaty itself, divided into seven Articles. “Article 5 of the Treaty of Lisbon” refers to this numbering, under the Final Provisions in the Official Journal, page 133, where the renumbering is ordered:
Article 5(1) ToL
1. The articles, sections, chapters, titles and parts of the Treaty on European Union and of the
Treaty establishing the European Community, as amended by this Treaty, shall be renumbered in accordance with the tables of equivalences set out in the Annex to this Treaty, and which form an integral part of this Treaty.
The reader who feels slightly bewildered is excused.
***
The Declarations adopted by the IGC 2007 are annexed to the Final Act, but not to the Treaty. The joint Declarations would still be politically but not legally binding on the member states as a whole. There are two groups of joint Declarations:
A. Declarations concerning provisions of the Treaties
B. Declarations concerning Protocols annexed to the Treaties
The Conference has adopted the following declarations annexed to this Final Act.
A. Declarations concerning provisions of the Treaties
1. Declaration concerning the Charter of Fundamental Rights of the European Union
2. Declaration on Article 6(2) of the Treaty on European Union
3. Declaration on Article 7a of the Treaty on European Union
4. Declaration on the composition of the European Parliament
5. Declaration on the political agreement by the European Council concerning the draft Decision on the composition of the European Parliament
6. Declaration on Articles 9 B(5) and (6), Articles 9 D(6) and (7), and Article 9 E of the Treaty on European Union
7. Declaration on Article 9 C(4) of the Treaty on European Union and Article 205(2) of the Treaty on the Functioning of the European Union
8. Declaration on practical measures to be taken upon the entry into force of the Treaty of Lisbon as regards the Presidency of the European Council and of the Foreign Affairs Council
9. Declaration on Article 9 C(9) of the Treaty on European Union concerning the European Council decision on the exercise of the Presidency of the Council
10. Declaration on Article 9 D of the Treaty on European Union
11. Declaration on Article 9 D(6) and (7) of the Treaty on European Union
12. Declaration on Article 9 E of the Treaty on European Union
13. Declaration concerning the common foreign and security policy
14. Declaration concerning the common foreign and security policy
15. Declaration on Article 13a of the Treaty on European Union
16. Declaration on Article 53(2) of the Treaty on European Union
17. Declaration concerning primacy
18. Declaration in relation to the delimitation of competences
19. Declaration on Article 3 of the Treaty on the Functioning of the European Union
20. Declaration on Article 16 B of the Treaty on the Functioning of the European Union
21. Declaration on the protection of personal data in the fields of judicial cooperation in criminal matters and police cooperation
22. Declaration on Articles 42 and 63a of the Treaty on the Functioning of the European Union
23. Declaration on the second paragraph of Article 42 of the Treaty on the Functioning of the European Union
24. Declaration concerning the legal personality of the European Union
25. Declaration on Articles 61 H and 188 K of the Treaty on the Functioning of the European Union
26. Declaration on non-participation by a Member State in a measure based on Title IV of Part Three of the Treaty on the Functioning of the European Union
27. Declaration on Article 69 D(1), second subparagraph, of the Treaty on the Functioning of the European Union
28. Declaration on Article 78 of the Treaty on the Functioning of the European Union
29. Declaration on Article 87(2)(c) of the Treaty on the Functioning of the European Union
30. Declaration on Article 104 of the Treaty on the Functioning of the European Union
31. Declaration on Article 140 of the Treaty on the Functioning of the European Union
32. Declaration on Article 152(4)(c) of the Treaty on the Functioning of the European Union
33. Declaration on Article 158 of the Treaty on the Functioning of the European Union
34. Declaration on Article 163 of the Treaty on the Functioning of the European Union
35. Declaration on Article 176 A of the Treaty on the Functioning of the European Union
36. Declaration on Article 188 N of the Treaty on the Functioning of the European Union concerning the negotiation and conclusion of international agreements by Member States relating to the area of freedom, security and justice
37. Declaration on Article 188 R of the Treaty on the Functioning of the European Union
38. Declaration on Article 222 of the Treaty on the Functioning of the European Union regarding the number of Advocates-General in the Court of Justice
39. Declaration on Article 249 B of the Treaty on the Functioning of the European Union
40. Declaration on Article 280 D of the Treaty on the Functioning of the European Union
41. Declaration on Article 308 of the Treaty on the Functioning of the European Union
42. Declaration on Article 308 of the Treaty on the Functioning of the European Union
43. Declaration on Article 311a(6) of the Treaty on the Functioning of the European Union
B. Declarations concerning Protocols annexed to the Treaties
44. Declaration on Article 5 of the Protocol on the Schengen acquis integrated into the framework of the European Union
45. Declaration on Article 5(2) of the Protocol on the Schengen acquis integrated into the framework of the European Union
46. Declaration on Article 5(3) of the Protocol on the Schengen acquis integrated into the framework of the European Union
47. Declaration on Article 5(3), (4) and (5) of the Protocol on the Schengen acquis integrated into the framework of the European Union
48. Declaration concerning the Protocol on the position of Denmark
49. Declaration concerning Italy
50. Declaration concerning Article 10 of the Protocol on transitional provisions
***
Then there are the unilateral Declarations, by one or more member states, without legal force for the whole, but expressing the political intent of the declarants.
Furthermore, the Conference has noted the declarations listed hereafter and annexed to this Final Act:
51. Declaration by the Kingdom of Belgium on national Parliaments
52. Declaration by the Kingdom of Belgium, the Republic of Bulgaria, the Federal Republic of Germany, the Hellenic Republic, the Kingdom of Spain, the Italian Republic, the Republic of Cyprus, the Republic of Lithuania, the Grand-Duchy of Luxembourg, the Republic of Hungary, the Republic of Malta, the Republic of Austria, the Portuguese Republic, Romania, the Republic of Slovenia, and the Slovak Republic on the symbols of the European Union
53. Declaration by the Czech Republic on the Charter of Fundamental Rights of the European Union
54. Declaration by the Federal Republic of Germany, Ireland, the Republic of Hungary, the Republic of Austria and the Kingdom of Sweden
55. Declaration by the Kingdom of Spain and the United Kingdom of Great Britain and Northern Ireland
56. Declaration by Ireland on Article 3 of the Protocol on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice
57. Declaration by the Italian Republic on the composition of the European Parliament
58. Declaration by the Republic of Latvia, the Republic of Hungary and the Republic of Malta on the spelling of the name of the single currency in the Treaties
59. Declaration by the Kingdom of the Netherlands on Article 270a of the Treaty on the Functioning of the European Union
60. Declaration by the Kingdom of the Netherlands on Article 311a of the Treaty on the Functioning of the European Union
61. Declaration by the Republic of Poland on the Charter of Fundamental Rights of the European Union
62. Declaration by the Republic of Poland concerning the Protocol on the application of the Charter of Fundamental Rights of the European Union in relation to Poland and the United Kingdom
63. Declaration by the United Kingdom of Great Britain and Northern Ireland on the definition of the term ‘nationals’
64. Declaration by the United Kingdom of Great Britain and Northern Ireland on the franchise for elections to the European Parliament
65. Declaration by the United Kingdom of Great Britain and Northern Ireland on Article 61 H of the Treaty on the Functioning of the European Union
***
If my understanding is correct, the only legally binding addition to the Treaties themselves and the Protocols is the Annex containing the tables of equivalences. Thus, there is no change concerning the political nature of the Declarations annexed to the Final Act, but not to the Treaties.
Ralf Grahn
Sources:
UK House of Commons Library Research Paper 08/09, 24 January 2008: The Treaty of Lisbon: amendments to the Treaty on European Union
http://www.parliament.uk/commons/lib/research/rp2008/rp08-009.pdf
Government of Sweden, Regeringskansliet: Lissabonfördraget, Statsrådsberedningen, Departementsserien (Ds) Ds 2007:48, 20 december 2007
http://www.regeringen.se/sb/d/108/a/94981
Government of Denmark: Lov om aendring af lov om Danmarks tiltraedelse af De Europaeiske Faelleskaber og Den Europaeiske Union (Danmarks ratification af Lissabon-traktaten); Lovforslag nr. L 53, Fremsat den 9. januar 2008 af udenrigsministeren (Per Stig Møller); Bind III
http://www.eu-oplysningen.dk/upload/application/pdf/c510022c/BindIII.pdf
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