Directory of European Community legislation in preparation

A new service of the European Union’s legal portal Eur-Lex is its Directory of European Community legislation in preparation.

(Although the European Union has practically replaced the term European Community except in legal documents, it is perhaps in order to refer to the “first pillar” EC in this context.)




The Directory is a helpful tool for those, who want to find the pending legislative proposals in any of twenty policy areas. It is then possible to narrow the search to a sub-area. Here is how Eur-Lex describes the tool and the main structure of the Directory:


Directory of Community legislation in preparation
You can print out the chapter of the Directory of Community legislation in preparation that you are interested in from the PDF files for each chapter. The larger chapters have been split into several PDF files.


• 01 General, financial and institutional matters (number of acts: 59)
• 02 Customs Union and free movement of goods (number of acts: 40)
• 03 Agriculture (number of acts: 110)
• 04 Fisheries (number of acts: 40)
• 05 Freedom of movement for workers and social policy (number of acts: 39)
• 06 Right of establishment and freedom to provide services (number of acts: 20)
• 07 Transport policy (number of acts: 91)
• 08 Competition policy (number of acts: 5)
• 09 Taxation (number of acts: 42)
• 10 Economic and monetary policy and free movement of capital (number of acts: 27)
• 11 External relations (number of acts: 412)
• 12 Energy (number of acts: 30)
• 13 Industrial policy and internal market (number of acts: 118)
• 14 Regional policy and coordination of structural instruments (number of acts: 17)
• 15 Environment, consumers and health protection (number of acts: 138)
• 16 Science, information, education and culture (number of acts: 24)
• 17 Law relating to undertakings (number of acts: 22)
• 18 Common Foreign and Security Policy (number of acts: 11)
• 19 Area of freedom, security and justice (number of acts: 114)
• 20 People's Europe (number of acts: 2)



Ralf Grahn

European Observatory on Counterfeiting and Piracy

On 2 April the Commission of the European Communities is going to launch a European Observatory on Counterfeiting and Piracy. This is a new step in the European Union’s fight against fake goods, illegal downloading and other infringements of intellectual property rights (IPR).

The launch takes place at the second High Level Conference on Counterfeiting and Piracy, with presentations by industry interests and enforcement agencies.

For more information, see the Commission’s press release (30 March 2009, IP/09/497), including links to the conference programme and the OECD study Economic Impact of Counterfeiting and Piracy.


Ralf Grahn

European Union: Common import rules

Here is a piece of EU legislation of interest to ’the whole world’.

http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2009:084:0001:0017:EN:PDF

Council Regulation (EC) No 260/2009 of 26 February 2009 on the common rules for imports (Codified version), published in the Official Journal of the European Union (OJEU) 31.3.2009 L 84/1.

The recast Regulation 260/2009 applies to most imports from the rest of the world (third countries) into the European Community (European Union), and it is based on Article 133 of the EC Treaty, on the common commercial policy.



The more exact scope of the Regulation is laid down in Article 1 Imports under Regulations 517/94 and 519/94 are excluded from the scope. The bulk of the recast Regulation concerns European Community surveillance of imports and safeguard measures:

Article 1

1. This Regulation applies to imports of products originating in third countries, except for:

(a) textile products subject to specific import rules under Regulation (EC) No 517/94;

(b) the products originating in certain third countries listed in Council Regulation (EC) No 519/94 of 7 March 1994 on common rules for imports from certain third countries.

2. The products referred to in paragraph 1 shall be freely imported into the Community and accordingly, without prejudice to the safeguard measures which may be taken under Chapter V, shall not be subject to any quantitative restrictions.


***

Certain textile imports


Council Regulation (EC) No 517/94 of 7 March 1994 on common rules for imports of textile products from certain third countries not covered by bilateral agreements, protocols or other arrangements, or by other specific Community import rules (originally published in the Official Journal 10.3.1994 L 67/1) has been amended many times. The latest consolidated version is dated 1 January 2008.


***

Excluded countries

Council Regulation (EC) No 519/94 of 7 March 1994 on common rules for imports from certain third countries and repealing Regulations (EEC) Nos 1765/82, 1766/82 and 3420/83 (originally published in the Official Journal 10.3.1994 L 67/89), has been amended many times.

The latest consolidated version of Regulation 519/94 is from 9 March 2003, but the all-important country list in Annex I has last been amended by Commission Regulation No 110/2009.

The shrinking country list now contains only:

Armenia
Azerbaijan
Belarus
Kazakhstan
North Korea
Russia
Tajikistan
Turkmenistan
Uzbekistan
Vietnam



Ralf Grahn

Community Trade Mark Regulation

The Community trade mark Regulation has been recast in a codified version, published in the Official Journal of the European Union (OJEU) 24.3.2009 L 78/1. Officially, this text with EEA relevance is called:

Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (codified version).

***

Under the current Treaty establishing the European Community (TEC), there is no specific legal base for intellectual property rights, so the Regulation is based on the so called flexibility clause, Article 308 TEC with its requirement of unanimity.

The Treaty of Lisbon would improve matters by enabling the European Union to create European intellectual property rights in accordance with the ordinary legislative procedure, with the exception of language arrangements still needing Council unanimity (Article 118 of the Treaty on the Functioning of the European Union; TFEU).


Ralf Grahn

EU procurement: Framework agreement

Framework agreement is one of the important terms defined at the beginning of the Procurement Directive 2004/18/EC.

***

Definition: Framework agreement

Article 1.5 of the Procurement Directive offers the following definition of a framework agreement:



5. A ‘framework agreement’ is an agreement between one or more contracting authorities and one or more economic operators, the purpose of which is to establish the terms governing contracts to be awarded during a given period, in particular with regard to price and, where appropriate, the quantity envisaged.

***

Recital 11

Recital 11 presents some important features of a framework agreement:

(11) A Community definition of framework agreements, together with specific rules on framework agreements concluded for contracts falling within the scope of this Directive, should be provided. Under these rules, when a contracting authority enters into a framework agreement in accordance with the provisions of this Directive relating, in particular, to advertising, time limits and conditions for the submission of tenders, it may enter into contracts based on such a framework agreement during its term of validity either by applying the terms set forth in the framework agreement or, if all terms have not been fixed in advance in the framework agreement, by reopening competition between the parties to the framework agreement in relation to those terms. The reopening of competition should comply with certain rules the aim of which is to guarantee the required flexibility and to guarantee respect for the general principles, in particular the principle of equal treatment. For the same reasons, the term of the framework agreements should not exceed four years, except in cases duly justified by the contracting authorities.


***

Recital 16

Recital 16 of the Procurement Directive serves as a reminder that the Community procurement legislation is harmonised, not unified. National differences and choices exist:

(16) In order to take account of the different circumstances obtaining in Member States, Member States should be allowed to choose whether contracting authorities may use framework agreements, central purchasing bodies, dynamic purchasing systems, electronic auctions or the competitive dialogue procedure, as defined and regulated by this Directive.

***

Article 32

The procedures are set out in more detail in the Procurement Directive, with framework agreements in Article 32:


Article 32
Framework agreements

1. Member States may provide that contracting authorities may conclude framework agreements.

2. For the purpose of concluding a framework agreement, contracting authorities shall follow the rules of procedure referred to in this Directive for all phases up to the award of contracts based on that framework agreement. The parties to the framework agreement shall be chosen by applying the award criteria set in accordance with Article 53.

Contracts based on a framework agreement shall be awarded in accordance with the procedures laid down in paragraphs 3 and 4. Those procedures may be applied only between the contracting authorities and the economic operators originally party to the framework agreement.

When awarding contracts based on a framework agreement, the parties may under no circumstances make substantial amendments to the terms laid down in that framework agreement, in particular in the case referred to in paragraph 3.

The term of a framework agreement may not exceed four years, save in exceptional cases duly justified, in particular by the subject of the framework agreement.

Contracting authorities may not use framework agreements improperly or in such a way as to prevent, restrict or distort competition.

3. Where a framework agreement is concluded with a single economic operator, contracts based on that agreement shall be awarded within the limits of the terms laid down in the framework agreement.

For the award of those contracts, contracting authorities may consult the operator party to the framework agreement in writing, requesting it to supplement its tender as necessary.

4. Where a framework agreement is concluded with several economic operators, the latter must be at least three in number, insofar as there is a sufficient number of economic operators to satisfy the selection criteria and/or of admissible tenders which meet the award criteria.

Contracts based on framework agreements concluded with several economic operators may be awarded either:

— by application of the terms laid down in the framework agreement without reopening competition, or

— where not all the terms are laid down in the framework agreement, when the parties are again in competition on the basis of the same and, if necessary, more precisely formulated terms, and, where appropriate, other terms referred to in the specifications of the framework agreement, in accordance with the following procedure:

(a) for every contract to be awarded, contracting authorities shall consult in writing the economic operators capable of performing the contract;

(b) contracting authorities shall fix a time limit which is sufficiently long to allow tenders for each specific contract to be submitted, taking into account factors such as the complexity of the subject-matter of the contract and the time needed to send in tenders;

(c) tenders shall be submitted in writing, and their content shall remain confidential until the stipulated time limit for reply has expired;

(d) contracting authorities shall award each contract to the tenderer who has submitted the best tender on the basis of the award criteria set out in the specifications of the framework agreement.


***


Detailed explanations

The Commission’s Directorate-General Internal market and services presents ten pages of detailed explanations in its Explanatory note – Framework agreements – Classic Directive [= Procurement Directive].


Ralf Grahn

European Union: Social policy objectives

Social policy has been a contested area of European Community (European Union) policy at times. We look at social objectives among the general EU and EC aims before we present the objectives in the Title on social policy.



***

European Union objectives

Article 2 of the Treaty on European Union (TEU) first mentions the objectives to promote economic and social progress and a high level of employment and to achieve balanced and sustainable development, in particular through the creation of an area without internal frontiers, through the strengthening of economic and social cohesion and through the establishment of economic and monetary union, ultimately including a single currency in accordance with the provisions of the treaty (in the latest consolidated version of the treaties OJ 29.12.2006 C 321 E).
.

***

European Community objectives

The European Community promotes a high level of employment and of social protection as well as equality between men and women.

According to Article 2 of the Treaty establishing the European Community (TEC) establishing a common market and an economic and monetary union as well as other Community policies and activities are means to those ends:

Article 2 TEC

The Community shall have as its task, by establishing a common market and an economic and
monetary union and by implementing common policies or activities referred to in Articles 3 and 4,
to promote throughout the Community a harmonious, balanced and sustainable development of
economic activities, a high level of employment and of social protection, equality between men and
women, sustainable and non-inflationary growth, a high degree of competitiveness and convergence
of economic performance, a high level of protection and improvement of the quality of the
environment, the raising of the standard of living and quality of life, and economic and social
cohesion and solidarity among Member States.

***

Pursuant to Article 3(1)(j) the European Community includes a policy in the social sphere comprising a European Social Fund. According to the second paragraph, the Community aims to eliminate inequalities, and to promote equality, between men and women.

In the social policy area, too, the European Community acts within the limits of its conferred (attributed) powers and in accordance with the principles of subsidiarity and proportionality.


***

Social policy objectives
Current TEC

The headline of this post refers to the ‘European Union’, which can be defended if you look at the EU as a Greek Temple, with three pillars. More exactly, the subject matter belongs to the Community pillar (first pillar), but few readers seem to be that exact in their web searches. The term ‘European Community’ seems to have fallen into disuse, save for official documents and a few brave lawyers. I try to use the EU and the EC terms in a pragmatic manner, depending on the context.
In the current Treaty establishing the European Community (TEC), Title VIII on employment is followed by Title IX Common commercial policy and Title X Customs cooperation, before the start of the motley Title XI Social policy, education, vocational training and youth.




The existing Article 136 TEC (ex Article 117), in the latest consolidated version of the treaties, OJ 29.12.2006 C 321 E/103, mentions the social policy objectives of the European Community:
.
TITLE XI
SOCIAL POLICY, EDUCATION, VOCATIONAL TRAINING AND YOUTH

CHAPTER 1
SOCIAL PROVISIONS

Article 136 TEC

The Community and the Member States, having in mind fundamental social rights such as those set out in the European Social Charter signed at Turin on 18 October 1961 and in the 1989 Community Charter of the Fundamental Social Rights of Workers, shall have as their objectives the promotion of employment, improved living and working conditions, so as to make possible their harmonisation while the improvement is being maintained, proper social protection, dialogue between management and labour, the development of human resources with a view to lasting high employment and the combating of exclusion.

To this end the Community and the Member States shall implement measures which take account of the diverse forms of national practices, in particular in the field of contractual relations, and the need to maintain the competitiveness of the Community economy.

They believe that such a development will ensue not only from the functioning of the common market, which will favour the harmonisation of social systems, but also from the procedures provided for in this Treaty and from the approximation of provisions laid down by law, regulation or administrative action.

***


Original Lisbon Treaty (ToL)


The Treaty of Lisbon (ToL) is still on its rocky road to possible entry into force. Agreed and signed between 27 member state governments, it has by now been approved by the national parliaments in 25 member states ahead of the original target date for entry into force (1 January 2009). Among the parliamentary ratifiers, only the holder of the next Council Presidency, the Czech Republic, looks certain to miss the agreed target date.

In addition, Ireland is pondering its European future following the negative outcome of the 12 June 2008 referendum. (You can find updated references to materials of general European interest on the debate in the posts ‘Ireland and Lisbon Treaty’ and ‘UCD Dublin European Institute: Irleand’s Future in Europe’.)

Anyway, in some instances the Lisbon Treaty is the most up-to-date manifestation of what the member state governments want the treaties to say.

On the other hand, the treaty reform process, at least since the Treaty of Nice, has been focused on so called institutional innovations. With a few notable exceptions, most areas of Community policy have only been updated and adjusted technically to the different reform treaty versions: the draft Constitution, the Constitutional Treaty and the Lisbon Treaty.

After moving Title IX Common commercial policy and Title X Customs cooperation, employment, social policy and the European Social Fund (ESF) would follow each other in a more logical order when the Lisbon Treaty is in force.

In addition, Title XI Social policy, education, vocational training and youth is divided into separate Titles, which makes the treaty easier to read.


Article 2, point 112 concerns the common commercial policy and point 113 customs cooperation.

SOCIAL POLICY

114) The heading of Title XI ‘SOCIAL POLICY, EDUCATION, VOCATIONAL TRAINING AND YOUTH’ shall be replaced by the heading ‘SOCIAL POLICY’, renumbered IX; the heading ‘Chapter 1 — Social provisions’ shall be deleted (OJ 17.12.2007 C 306/80).

Point 115 already inserted a new Article 136a, so there were no express or specific amendments to Article 136. Consequently, the main change was the new Social policy heading. Article 136 TEC underwent only horizontal amendments. The word ‘Community’ is replaced by ‘Union’, ‘common market’ is replaced by ‘internal market’ and ‘this Treaty’ is replaced by ‘the Treaties’, as elsewhere in the Treaty of Lisbon.

***

Renumbering

The Table of equivalences of the original Treaty of Lisbon tells us that the social policy title was to be renumbered Title X and that Article 136 TEC and TFEU (ToL) was to be renumbered Article 151 TFEU in the consolidated version of the amending treaties (OJ 17.12.2007 C 306/216).


***


Consolidated Lisbon Treaty



Article 151 of the Treaty on the Functioning of the European Union (TFEU) takes over the contents of the existing Article 136 TEC with the minimal change in terminology and the renumbering noted above.

As a consequence, the consolidated TFEU, published in the Official Journal of the European Union, OJ 9.5.2008 C 115/114, looks like this:
TITLE X
SOCIAL POLICY

Article 151 TFEU
(ex Article 136 TEC)

The Union and the Member States, having in mind fundamental social rights such as those set out in the European Social Charter signed at Turin on 18 October 1961 and in the 1989 Community Charter of the Fundamental Social Rights of Workers, shall have as their objectives the promotion of employment, improved living and working conditions, so as to make possible their harmonization while the improvement is being maintained, proper social protection, dialogue between management and labour, the development of human resources with a view to lasting high employment and the combating of exclusion.

To this end the Union and the Member States shall implement measures which take account of the diverse forms of national practices, in particular in the field of contractual relations, and the need to maintain the competitiveness of the Union economy.
They believe that such a development will ensue not only from the functioning of the internal market, which will favour the harmonisation of social systems, but also from the procedures provided for in the Treaties and from the approximation of provisions laid down by law, regulation or administrative action.


***

Practical information about social policy issues

European Parliament Fact Sheet 4.8.1. Social and employment policy presents the historical development and the main features of EC social policy:

http://www.europarl.europa.eu/facts/4_8_1_en.htm

***

The Commissions web page The Social Policy Agenda (2006–2010) gives a description of the social policy objectives and priority areas (last update 25.04.2005):
http://europa.eu/scadplus/leg/en/cha/c10127.htm

***

An updated view of the social agenda is presented by the joint opinion by the Social Protection Committee (SPC) and the Employment Committee (EMCO) on the Renewed Social Agenda, as adopted by the two committees on 14 and 27 November 2008, respectively:

http://register.consilium.europa.eu/pdf/en/08/st16/st16495.en08.pdf

***

The relevant Council formation is Employment, Social Policy, Health and Consumer Affairs, known by the acronym EPSCO. Until the next meeting, on 15 and 16 December, the latest Conclusions are from the meeting held on 2 October 2008 (document 13405/08):

http://www.consilium.europa.eu/ueDocs/cms_Data/docs/pressData/en/lsa/103181.pdf


Ralf Grahn

European Union: Employment Committee

The treaty based advisory Employment Committee promotes coordination between EC (EU) member states on employment and labour market policies.

Does ‘management and labour’ have a specific meaning in this context? Often used in Eurojargon, but what are the social partners?

***


Current TEC

The headline of this post starts with ‘European Union’, which can be defended if you look at the EU as a Greek Temple, with three pillars. More exactly, the subject matter belongs to the Community pillar (first pillar), but few readers seem to be that exact in their web searches. The term ‘European Community’ seems to have fallen into disuse, save for official documents and a few brave lawyers. I try to use the EU and the EC terms in a pragmatic manner, depending on the context.

The current Article 130 (ex Article 109s) of the Treaty establishing the European Community (TEC) concludes the Title VIII Employment by establishing a sector committee.

The Employment Committee works in an advisory capacity.

Whereas most of the Employment Title speaks about employment (policies) or refers to the employment aims, Article 130 TEC picks up the term ‘labour markets’ mentioned in Article 125 TEC.

The Employment Committee promotes coordination between member states on employment and labour market policies.

The Employment Committee consults management and labour, known as the social partners in Eurospeak.

There is the customary proviso that the Employment Committee works ‘without prejudice to Article 207’, referring to the Committee of Permanent Representatives of the Member States (Coreper), the last stop before the Ministers meet in the Council.

The intergovernmental nature of the Employment Committee is illustrated not only by the wording that it is established to ‘promote coordination between Member States’ or by the fact that the Committee is appointed by the Council, but also by the preponderance of member states’ representatives. Each member state appoints two members (as does the Commission).
The existing Article 130 TEC (in the latest consolidated version of the treaties, OJ 29.12.2006 C 321 E/103):


Article 130 TEC

The Council, after consulting the European Parliament, shall establish an Employment Committee with advisory status to promote coordination between Member States on employment and labour market policies. The tasks of the Committee shall be:

— to monitor the employment situation and employment policies in the Member States and the Community,

— without prejudice to Article 207, to formulate opinions at the request of either the Council or the Commission or on its own initiative, and to contribute to the preparation of the Council proceedings referred to in Article 128.

In fulfilling its mandate, the Committee shall consult management and labour.

Each Member State and the Commission shall appoint two members of the Committee.

***


Original Lisbon Treaty (ToL)


The Treaty of Lisbon (ToL) is still on its rocky road to possible entry into force. Agreed and signed between 27 member state governments, it has by now been approved by the national parliaments in 25 member states ahead of the original target date for entry into force (1 January 2009). Among the parliamentary ratifiers, only the holder of the next Council Presidency, the Czech Republic, looks certain to miss the agreed target date.

In addition, Ireland is pondering its European future following the negative outcome of the 12 June 2008 referendum. (For some updated references to the Irish debate, you can read yesterday’s post ‘Ireland and Lisbon Treaty’.)

Anyway, in some instances the Lisbon Treaty is the most up-to-date manifestation of what the member state governments want the treaties to say.

On the other hand, the treaty reform process, at least since the Treaty of Nice, has been focused on so called institutional innovations. With a few notable exceptions, most areas of Community policy have only been updated and adjusted technically to the different reform treaty versions: the draft Constitution, the Constitutional Treaty and the Lisbon Treaty.

The changes to the Title on employment in the Lisbon Treaty are minimal. Article 2, point 111 deleted a few words from Article 125 TEC and the following point (112) concerned the common commercial policy.

Consequently, Article 126 TEC and the following ones underwent only horizontal or technical amendments (OJ 17.12.2007 C 306/79). In Article 130 TEC the word ‘Community’ is replaced by ‘Union’, as elsewhere in the Treaty of Lisbon. Another horizontal amendment is that the clarifying words ‘acting by a simple majority’ are inserted after ‘The Council’ according to Article 2, point 4 ToL, but the procedure remains the same.

***

Renumbering

The Table of equivalences of the original Treaty of Lisbon tells us that Title VIII Employment was to be renumbered Title IX and that Article 130 TEC and TFEU (ToL) was to be renumbered Article 150 TFEU in the consolidated version of the amending treaties (OJ 17.12.2007 C 306/214).


***


Consolidated Lisbon Treaty



Article 150 of the Treaty on the Functioning of the European Union (TFEU) takes over the contents of the existing Article 130 TEC with the minimal change in terminology and the renumbering noted above.

As a consequence, the consolidated TFEU, published in the Official Journal of the European Union, OJ 9.5.2008 C 115/113, looks like this:

TITLE IX
EMPLOYMENT

Article 150 TFEU
(ex Article 130 TEC)

The Council, acting by a simple majority after consulting the European Parliament, shall establish an Employment Committee with advisory status to promote coordination between Member States on employment and labour market policies. The tasks of the Committee shall be:

— to monitor the employment situation and employment policies in the Member States and the Union,

— without prejudice to Article 240, to formulate opinions at the request of either the Council or the Commission or on its own initiative, and to contribute to the preparation of the Council proceedings referred to in Article 148.

In fulfilling its mandate, the Committee shall consult management and labour.

Each Member State and the Commission shall appoint two members of the Committee.

***

Management and labour

The English version of the treaties refers to consulting ‘management and labour’. We look at the wording of the sentence, first in English:

In fulfilling its mandate, the Committee shall consult management and labour.

Management and labour seem to be given more exact contours, when we turn to the German version:
Bei der Erfüllung seines Auftrags hört der Ausschuss die Sozialpartner.

The French words, likewise, gives management and labour a more precise meaning than the English treaty text:

Dans l'accomplissement de son mandat, le comité consulte les partenaires sociaux.

The Sapnish treaty text catches another nuance of the parties or partners to be consulted:

Para llevar a cabo su mandato, el Comité deberá consultar a los interlocutores sociales.

The Finnish treaty text uses (almost) the same terminology as the German and the French, although the customary term evokes contracting parties (collective agreements) as much as partners in a dialogue:

Tehtäväänsä toteuttaessaan komitea kuulee työmarkkinaosapuolia.

The Swedish text uses the term ’arbetsmarknadens parter’ identical with the Finnish concept:

Kommittén ska när den utför sitt uppdrag höra arbetsmarknadens parter.

We can conclude that the drafters of the treaties have had organised employers and organised labour in mind and that national systems of collective bargaining and traditions of dialogue between management and employee interests are reflected in the various terms used. Anyway, the English version seems to be less exact than the other language versions. (The Title Social policy is imbued with references to the social partners.)

The subparagraph does not specify the level of consultations, which means that the wording does not exclude consultations at European or national level.

***

Social partners

The Europa Glossary outlines the meaning of ‘social partners’ in the following way (although it leans heavily on Article 138 TEC, in the current Title XI Social policy, education, vocational training and youth):

Social partners
The glossary is being updated given the recent signing of the Treaty of Lisbon.
The Commission is required to consult various social partners when it wishes to submit proposals in this field (article 138 of the EC Treaty). This social dialogue occurs via the three main cross-industry organisations representing the social partners at European level:
the European Trade Union Confederation (ETUC);
the Union of Industrial and Employers' Confederations of Europe (BUSINESSEUROPE);
the European Centre of Enterprises with Public Participation (CEEP).

In addition to these three European cross-industry organisations, there are many other socio-professional groups representing specific or sectoral interests.
It is the Commission's task to promote consultation of the social partners and take any relevant measures to facilitate their dialogue by ensuring balanced support for the parties.
Before submitting proposals in the field of social policy, the Commission consults the social partners on the possible direction of EU action.
The social partners also play an important role in the European Economic and Social Committee, where they sit alongside other representatives of civil society.

***

Employment Committee – Council decision

Not to forget secondary legislation, the Committee was established by the Council decision of 24 January 2000 establishing the Employment Committee (OJ 4.2.2000 L 29/21).

The decision reiterates the treaty provisions, but adds some specifications to the Committee’s tasks.

***

Employment Committee activity

The European Commission, Employment and Social Affairs, offers an introductory web page on the Employment Committee with links to its activities:

http://ec.europa.eu/employment_social/employment_strategy/emco_en.htm





Ralf Grahn

EU employment: Incentive measures and pilot projects

Even if there is no independent European Community (European Union) employment policy, the Treaty establishing the European Community offers the EC (EU) some scope for supporting action, labeled as incentive measures.



***


Current TEC

The current Article 129 (ex Article 109r) of the Treaty establishing the European Community (TEC), under the Title VIII Employment, offers the Community some scope of action in the area of employment policy.

Harmonisation of member states’ laws and regulations is excluded out of hand (paragraph 2).

Using the co-decision procedure, the Council may adopt incentive measures.

The incentive measures are ancillary to the employment policies of the member states: designed to encourage cooperation between member states and to support their action.

This supporting role is underlined by the description of allowed actions, such as promoting exchange of information and best practices, offering analysis and advice and through experimental pilot projects.

The existing Article 129 TEC (in the latest consolidated version of the treaties, OJ 29.12.2006 C 321 E/103):

Article 129 TEC

The Council, acting in accordance with the procedure referred to in Article 251 and after consulting the Economic and Social Committee and the Committee of the Regions, may adopt incentive measures designed to encourage cooperation between Member States and to support their action in the field of employment through initiatives aimed at developing exchanges of information and best practices, providing comparative analysis and advice as well as promoting innovative approaches and evaluating experiences, in particular by recourse to pilot projects.

Those measures shall not include harmonisation of the laws and regulations of the Member States.


***


Original Lisbon Treaty


The Treaty of Lisbon (ToL) is still on its rocky road to possible entry into force, but in some instances it is the most up-to-date manifestation of what the member state governments want the treaties to say.

On the other hand, the treaty reform process, at least since the Treaty of Nice, has been focused on so called institutional innovations. With a few notable exceptions, most areas of Community policy have only been updated and adjusted technically to the different reform treaty versions: the draft Constitution, the Constitutional Treaty and the Lisbon Treaty.

The changes to the Title on employment in the Lisbon Treaty are minimal. Article 2, point 111 deleted a few words from Article 125 TEC and the following point (112) concerned the common commercial policy.

Consequently, Article 126 TEC and the following ones underwent only horizontal or technical amendments (OJ 17.12.2007 C 306/79). In Article 129 TEC, as in a number of provisions, ‘the procedure referred to in Article 251’ (without using the customary term ‘co-decision’) is mercifully renamed ‘the ordinary legislative procedure’, which means that the European Parliament is named as co-legislator.


***

Renumbering

The Table of equivalences of the original Treaty of Lisbon tells us that Title VIII Employment was to be renumbered Title IX and that Article 129 TEC and TFEU (ToL) was to be renumbered Article 149 TFEU in the consolidated version of the amending treaties (OJ 17.12.2007 C 306/214).


***


Consolidated Lisbon Treaty



Article 149 of the Treaty on the Functioning of the European Union (TFEU) takes over the contents of the existing Article 129 TEC with the minimal change in terminology and the renumbering noted above.

As a consequence, the consolidated TFEU, published in the Official Journal of the European Union, OJ 9.5.2008 C 115/113, looks like this:

TITLE IX
EMPLOYMENT

Article 149 TFEU
(ex Article 129 TEC)

The European Parliament and the Council, acting in accordance with the ordinary legislative procedure and after consulting the Economic and Social Committee and the Committee of the Regions, may adopt incentive measures designed to encourage cooperation between Member States and to support their action in the field of employment through initiatives aimed at developing exchanges of information and best practices, providing comparative analysis and advice as well as promoting innovative approaches and evaluating experiences, in particular by recourse to pilot projects.

Those measures shall not include harmonisation of the laws and regulations of the Member States.

***

Incentive measures and pilot projects

Incentive measures and pilot projects are key terms, but it is not easy to find clear definitions of them. The terms have to be interpreted in the context of each treaty Article where they appear.

The pragmatic solution is to look at what the European Community (European Union) has seen fit to approve through legal acts and budget decisions in each policy area, in this case the employment area.

The European Commission's Directorate-General for Employment, Social Affairs and Equal Opportunities offers information on its activities:

http://ec.europa.eu/social/main.jsp?catId=23&langId=en


Incentive measures (examples)

In addition to Article 149 TFEU presented above, the Treaty on the Functioning of the European Union mentions incentive measures in a few other policy areas where the EU’s powers are weak.
Article 19(1) TFEU (Article 13 TEC) mentions action to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation (requiring unanimous Council decision). But adopting the basic principles of Union incentive measures to support
action taken by the Member States in order to contribute to the achievement of these objectives is possible through the ordinary legislative procedure, pursuant to Article 19(2) TFEU.

Article 165 TFEU (Article 149 TEC) concerns education and sporting issues, where the fourth paragraph allows the adoption of incentive measures, as always with the proviso ‘excluding any harmonisation of the laws and regulations of the Member States’.

The European Union’s contribution to the flowering of the cultures of the member states includes the option to use incentive measures, in Article 167 TFEU (Article 151 TEC).

Incentive measures may also be adopted, if they are designed to protect and improve human health and in particular to combat the major cross-border health scourges, measures concerning monitoring, early warning of and combating serious cross-border threats to health, and measures which have as their direct objective the protection of public health regarding tobacco and the abuse of alcohol, according to Article 168 TFEU (Article 152 TEC).


***


Pilot projects

Article 149 seems to be the only TFEU provision employing the term pilot project.

The Interinstitutional Agreement between the European Parliament, the Council and the Commission on budgetary discipline and sound financial management (OJ 14.6.2006 C 139) mentions pilot projects in a few instances, without adding much to our understanding of the meaning of the term.

The Commission’s annual draft budget takes into account (c) the possibilities for starting up new policies through pilot projects and/or new preparatory actions or continuing multiannual actions which are coming to an end (point 32).

The Commission’s financial programming identifies for annual actions (pilot projects, preparatory actions, Agencies) and actions financed under the prerogatives of the Commission multiannual estimates and (for pilot projects and preparatory actions) the margins left under the authorised ceilings (point 46).

In Annex II (point D) on interinstitutional collaboration both arms of the budgetary authority (the Council and the European Parliament) undertake to inform the Commission by mid-June of their intentions with regard to amendments which create new preparatory actions/pilot projects or prolong existing ones.


***

As a last resort, Article 263 TFEU (Article 230 TEC) lets the Court of Justice of the European Union review the legality of legal acts and other acts of the institutions.


Ralf Grahn

EU employment: Policy coordination and guidelines

The economic recession and the financial crisis threaten the EC (EU) goal of a high level of employment. The focus has shifted from the more or less coordinated national financial rescue packages to efforts to act coherently in the face of the downturn. How European is the response going to be and how much substance will it have?

At the treaty level there are fairly well-oiled procedures in place for the coordination of economic policies and employment policies, but how will the routines adapt to the deteriorating situation?

The European Council and the Council are the main European Union level players coordinating member states’ employment policies. Soft instruments – conclusions, guidelines, recommendations and reports – are used. The member states prepare national plans and annual employment reports. The Commission acts mainly in a supporting role, collating and cajoling.


***


Current TEC



The current Article 128 (ex Article 109q) of the Treaty establishing the European Community (TEC), under the Title VIII Employment, sets out the choreography for the coordination of member states’ employment policies.

At the summit of these intergovernmental proceedings is the annual spring (March) European Council, dedicated to economic policy and reform issues. The European Council adopts conclusions based on a joint report by the Council and the Commission.

The Council then, after consultations, draws up employment guidelines consistent with the broad economic policy guidelines (BPEGs) for the member states.

Each member state presents an annual report on implementation.

The national reports are examined by the Council, which may make recommendations to the member state.

The Council and the Commission prepare a joint report on the employment situation and the implementation of the employment guidelines.

The existing Article 126 TEC (in the latest consolidated version of the treaties, OJ 29.12.2006 C 321 E/102–103):

Article 128 TEC

1. The European Council shall each year consider the employment situation in the Community and adopt conclusions thereon, on the basis of a joint annual report by the Council and the Commission.

2. On the basis of the conclusions of the European Council, the Council, acting by a qualified majority on a proposal from the Commission and after consulting the European Parliament, the Economic and Social Committee, the Committee of the Regions and the Employment Committee referred to in Article 130, shall each year draw up guidelines which the Member States shall take into account in their employment policies. These guidelines shall be consistent with the broad guidelines adopted pursuant to Article 99(2).

3. Each Member State shall provide the Council and the Commission with an annual report on the principal measures taken to implement its employment policy in the light of the guidelines for employment as referred to in paragraph 2.

4. The Council, on the basis of the reports referred to in paragraph 3 and having received the views of the Employment Committee, shall each year carry out an examination of the implementation of the employment policies of the Member States in the light of the guidelines for employment. The Council, acting by a qualified majority on a recommendation from the Commission, may, if it considers it appropriate in the light of that examination, make recommendations to Member States.

5. On the basis of the results of that examination, the Council and the Commission shall make a joint annual report to the European Council on the employment situation in the Community and on the implementation of the guidelines for employment.


***


Original Lisbon Treaty


The Treaty of Lisbon (ToL) is still on its rocky road to possible entry into force, but in many instances it is the most up-to-date manifestation of what the member state governments want the treaties to say.

But the treaty reform process, at least since the Treaty of Nice, has been focused on so called institutional innovations. With a few notable exceptions, most areas of Community policy have only been updated and adjusted technically to the different reform treaty versions: the draft Constitution, the Constitutional Treaty and the Lisbon Treaty.

Thus, the changes to the Title on employment in the Lisbon Treaty are minimal. Article 2, point 111 deleted a few words from Article 125 TEC and the following point (112) concerned the common commercial policy.

Consequently, Article 126 TEC and the following ones underwent only horizontal or technical amendments (OJ 17.12.2007 C 306/79). In Article 128 the ‘Community’ was replaced by the ‘Union’ and the referrals to other treaty provisions adjusted.



***

Renumbering

The Table of equivalences of the original Treaty of Lisbon tells us that Title VIII Employment was to be renumbered Title IX and that Article 128 TEC and TFEU (ToL) was to be renumbered Article 148 TFEU in the consolidated version of the amending treaties (OJ 17.12.2007 C 306/214).


***


Consolidated Lisbon Treaty



Article 148 of the Treaty on the Functioning of the European Union (TFEU) takes over the contents of the existing Article 128 TEC with the minimal change in terminology and the renumbering noted above.

As a consequence, the consolidated TFEU, published in the Official Journal of the European Union, OJ 9.5.2008 C 115/112, looks like this:

TITLE IX
EMPLOYMENT

Article 148 TFEU
(ex Article 128 TEC)

1. The European Council shall each year consider the employment situation in the Union and adopt conclusions thereon, on the basis of a joint annual report by the Council and the Commission.

2. On the basis of the conclusions of the European Council, the Council, on a proposal from the Commission and after consulting the European Parliament, the Economic and Social Committee, the Committee of the Regions and the Employment Committee referred to in Article 150, shall each year draw up guidelines which the Member States shall take into account in their employment policies. These guidelines shall be consistent with the broad guidelines adopted pursuant to Article 121(2).

3. Each Member State shall provide the Council and the Commission with an annual report on the principal measures taken to implement its employment policy in the light of the guidelines for employment as referred to in paragraph 2.

4. The Council, on the basis of the reports referred to in paragraph 3 and having received the views of the Employment Committee, shall each year carry out an examination of the implementation of the employment policies of the Member States in the light of the guidelines for employment. The Council, on a recommendation from the Commission, may, if it considers it appropriate in the light of that examination, make recommendations to Member States.

5. On the basis of the results of that examination, the Council and the Commission shall make a joint annual report to the European Council on the employment situation in the Union and on the implementation of the guidelines for employment.

***


Employment policy coordination

Readers interested in the practical side of the European employment strategy can start with the Introduction and the links offered by the European Commission’s DG Employment and Social Affairs:

http://ec.europa.eu/employment_social/employment_strategy/index_en.htm

Roughly, European Community (European Union) action could be described as a mandatory planning, implementing and evaluating exercise using soft tools like open coordination, ‘best practices’ etc.

Even if the TEC partly reflects different sector views, the practical approach has evolved into a more holistic one knitting together economic, employment, innovation as well as research and education policy issues under the relaunched Lisbon Strategy for Growth and Jobs.

***

European Council Conclusions

The economic and employment guidelines (BEPGs and Employment Guidelines), the main focus of the spring European Council, have been integrated and subsumed under the relaunched Lisbon strategy for growth and jobs, but essentially adopted without change for a second three year period (2008–2010) last spring.

The first ten pages of the revised Presidency Conclusions of the European Council 13–14 March 2008, including the references to the National Reform Programmes and the Integrated Guidelines for Growth and Jobs, are available as a gateway to understanding the system and the state of play (Council document 7652/1/08 REV 1):

http://www.consilium.europa.eu/ueDocs/cms_Data/docs/pressData/en/ec/99410.pdf

Cf. Article 128(1) TEC and Article 148(1) TFEU.

Legally, the Council preparing and following up is one Community institution, but a number of Council formations participate directly in the process or at least want to make their views known: ECOFIN, EPSCO, the Competitiveness Council, Education/Training and Youth.

***

Joint employment report

The European Council Conclusions are based on the joint annual report by the Council and the Commission, mentioned in paragraphs 1 and 5 of Article 128 TEC and Article 148 TFEU.

The Joint Employment Report 2007/2008 (Council document 7169/08; 16 pages) is a bit more specific than the European Council Conclusions. This latest version is available at:

http://register.consilium.europa.eu/pdf/en/08/st07/st07169.en08.pdf

***

Council employment guidelines

After consulting the European Parliament, the Economic and Social Committee, the Committee of the Regions and the Employment Committee, the Council adopts annual employment guidelines, based on the European Council Conclusions and a proposal by the Commission. (Cf. paragraph 2 of Article 128 TEC and Article 148 TFEU.)

The Council decision on guidelines for the employment policies of the Member States (Council document of 7 July 2008 10614/2/08 REV 2; 24 pages) is accessible at:

http://register.consilium.europa.eu/pdf/en/08/st10/st10614-re02.en08.pdf

***

National employment reports – National Reform Programmes – Lisbon strategy

Each member state delivers a national employment report annually, as laid out in paragraph 3 of Article 128 TEC and Article 148 TFEU.

At this point in time, the Commission web site has on offer the page Member States’ autumn 2007 reports on the implementation of their National Reform Programmes, with links to the national employment reports. In practice, they are both reporting and planning documents, where the planning part constitutes a development with regard to the treaty provision:

http://ec.europa.eu/growthandjobs/national-dimension/member-states-autumn-2007-reports/index_en.htm

The 2008 round of (Lisbon strategy) progress reports is well advanced, so the interested reader might find more up-to-date information on the National Reform Programmes by checking national government sites. (English translations are or will be available in many member states.)

***

Country-specific recommendations

The examination of the national employment reports is a mandatory part of the annual employment coordination cycle, but the Council has the option to issue recommendations to member states. Cf. paragraph 4 of Article 128 TEC and Article 148 TFEU.
Ahead of the spring European Council, the Council addressed the following Country-specific Integrated Recommendations to the European Council (4 March 2008, document 7275/08; 58 pages):

http://register.consilium.europa.eu/pdf/en/08/st07/st07275.en08.pdf

***

Employment in Europe 2008 Report

A separate exercise, but with a wealth of background information, is the Commission’s annual employment report Employment in Europe.

On 18 November 2008 the Commission published its twentieth annual Employment in Europe 2008 Report (292 pages), accessible through:

http://ec.europa.eu/social/main.jsp?langId=sv&catId=89&newsId=415

According to the Commission, the Employment in Europe 2008 Report addresses topics that are high on the European Union's employment policy agenda. It gives a comprehensive overview of the employment situation in the EU, as well as an analysis of key labour market issues, including immigration, post-enlargement intra-EU labour mobility, quality of work and the link between education and employment.

For a quick overview, read the Commission’s MEMO/08/719 Employment in Europe:

http://europa.eu/rapid/pressReleasesAction.do?reference=MEMO/08/719&format=HTML&aged=0&language=EN&guiLanguage=en

At the publication of the 2008 Employment in Europe Report the Commission highlighted labour immigration into the European Union and mobility of the workforce within the EU, so these questions were reflected in the media reports.



Ralf Grahn

EU employment: European Community powers

Powers not conferred upon (attributed to) the European Community (EC) belong to the member states, and Community action shall anyway clear the tests of subsidiarity and proportionality, but in the case of the aim of a high level of employment the high contracting parties have decided to further underline their leading role by limiting the scope for EC action.

In this post we look at the basic structure of member state and European Community (European Union) competences concerning employment. Later posts can then turn to the concrete EC (EU) actions intended under the Title Employment in the existing Treaty establishing the European Community and the Treaty of Lisbon (Treaty on the Functioning of the European Union).



***


Current TEC



The current Article 127 (ex Article 109p) of the Treaty establishing the European Community (TEC), under the Title VIII Employment, essentially reiterates both the general employment aim – a high level of employment – and the restricted role of the European Community (European Union) in achieving this objective following from other treaty provisions.

The European Community (EC) shall contribute to a high level of employment, but the employment policies are ‘owned’ by the member states.

The EC encourages cooperation between member states.

The EC – if necessary – complements member states’ action.

Not content with the expression of conferred or attributed powers and the principles of subsidiarity and necessity (proportionality) in Article 5 TEC, the high contracting parties remind us in Article 127(1) TEC that the competences of the member states shall be respected.

Article 127(2) TEC sets out the horizontal character of employment-related policies, although the objective of a high level of employment with a fairly weak expression shall be ‘taken into consideration’ when EC policies and activities are formulated and implemented.


The existing Article 126 TEC (in the latest consolidated version of the treaties, OJ 29.12.2006 C 321 E/102):

Article 127 TEC

1. The Community shall contribute to a high level of employment by encouraging cooperation between Member States and by supporting and, if necessary, complementing their action. In doing so, the competences of the Member States shall be respected.

2. The objective of a high level of employment shall be taken into consideration in the formulation and implementation of Community policies and activities.

***


Original Lisbon Treaty


The Treaty of Lisbon (ToL) is still on its rocky road to possible entry into force, but in many instances it is the most up-to-date manifestation of what the member state governments want the treaties to say.

But the treaty reform process, at least since the Treaty of Nice, has been focused on so called institutional innovations. With a few notable exceptions, most areas of Community policy have only been updated and adjusted technically to the different reform treaty versions: the draft Constitution, the Constitutional Treaty and the Lisbon Treaty.

Thus, the changes to the Title on employment in the Lisbon Treaty are minimal. Article 2, point 111 deleted a few words from Article 125 TEC and the following point (112) concerned the common commercial policy.

Consequently, Article 126 TEC and the following ones underwent only horizontal or technical amendments (OJ 17.12.2007 C 306/79). In both paragraphs of Article 127 the ‘Community’ was replaced by the ‘Union’.



***

Renumbering

The Table of equivalences of the original Treaty of Lisbon tells us that Title VIII Employment was to be renumbered Title IX and that Article 127 TEC and TFEU (ToL) was to be renumbered Article 147 TFEU in the consolidated version of the amending treaties (OJ 17.12.2007 C 306/214).


***


Consolidated Lisbon Treaty



Article 147 of the Treaty on the Functioning of the European Union (TFEU) takes over the contents of the existing Article 127 TEC with the minimal change in terminology and the renumbering noted above.

As a consequence, the consolidated TFEU, published in the Official Journal of the European Union, OJ 9.5.2008 C 115/112, looks like this:

TITLE IX
EMPLOYMENT

Article 147 TFEU
(ex Article 127 TEC)

1. The Union shall contribute to a high level of employment by encouraging cooperation between Member States and by supporting and, if necessary, complementing their action. In doing so, the competences of the Member States shall be respected.

2. The objective of a high level of employment shall be taken into consideration in the formulation and implementation of Union policies and activities.

***


Employment policy coordination

Readers interested in the practical side of the European employment strategy can start with the Introduction and the links offered by the European Commission’s DG Employment and Social Affairs:

http://ec.europa.eu/employment_social/employment_strategy/index_en.htm

***

Integrated guidelines – Lisbon strategy for growth and jobs

The economic and employment guidelines (BEPGs and Employment Guidelines), the main focus of the spring European Council, have been integrated and subsumed under the relaunched Lisbon strategy for growth and jobs, but essentially adopted without change for a second three year period (2008–2010) last spring.

The first ten pages of the revised Presidency Conclusions of the European Council 13–14 March 2008, including the references to the National Reform Programmes and the Integrated Guidelines for Growth and Jobs, are available as a gateway to understanding the system and the state of play (Council document 7652/1/08 REV 1):

http://www.consilium.europa.eu/ueDocs/cms_Data/docs/pressData/en/ec/99410.pdf

(The following stage, for someone digging deeper, would be to look for formal adoption by the Council in its ECOFIN and EPSCO formations.)

***

Employment in Europe 2008 Report

A wealth of information is contained in the Commission’s annual employment reports.

On 18 November 2008 the Commission published its twentieth annual employment report, Employment in Europe 2008 (292 pages), accessible through:

http://ec.europa.eu/social/main.jsp?langId=sv&catId=89&newsId=415

According to the Commission, the Employment in Europe 2008 Report addresses topics that are high on the European Union's employment policy agenda. It gives a comprehensive overview of the employment situation in the EU, as well as an analysis of key labour market issues, including immigration, post-enlargement intra-EU labour mobility, quality of work and the link between education and employment.

For a quick overview, read the Commission’s MEMO/08/719 Employment in Europe:

http://europa.eu/rapid/pressReleasesAction.do?reference=MEMO/08/719&format=HTML&aged=0&language=EN&guiLanguage=en

At the publication of the 2008 Employment in Europe Report the Commission highlighted labour immigration into the European Union and mobility of the workforce within the EU, so these questions were reflected in the media reports.



Ralf Grahn

Employment aims of EU

A high level of employment or even full employment can be seen as important aims of the European Union (European Community), but the real scope of action at European level requires a closer look at the treaties.

Outside circumstances and inter-related Community policies affect the employment levels, not only ‘employment policy’ in a narrow sense.


Economic, employment and social policies are mainly national (despite the single currency), so the European Community (European Union) is left with various coordinating tasks.

A coordinated strategy for employment is a task for the member states and the Community.





***


Current TEC



The current Article 125 (ex Article 109n) of the Treaty establishing the European Community (TEC) introduces Title VIII Employment by envisioning a coordinated strategy for employment and referring to treaty objectives (in the latest consolidated version of the treaties, OJ 29.12.2006 C 321 E/101):

TITLE VIII
EMPLOYMENT

Article 125 TEC

Member States and the Community shall, in accordance with this title, work towards developing a coordinated strategy for employment and particularly for promoting a skilled, trained and adaptable workforce and labour markets responsive to economic change with a view to achieving the objectives defined in Article 2 of the Treaty on European Union and in Article 2 of this Treaty.


***

Objectives TEU and TEC


Article 2 of the Treaty on European Union (TEU ) first mentions the objectives “to promote economic and social progress and a high level of employment”.

Article 2 of the Treaty establishing the European Community (TEC) gives the Community the task to promote a high level of employment:

Article 2 TEC

The Community shall have as its task, by establishing a common market and an economic and monetary union and by implementing common policies or activities referred to in Articles 3 and 4, to promote throughout the Community a harmonious, balanced and sustainable development of economic activities, a high level of employment and of social protection, equality between men and women, sustainable and non-inflationary growth, a high degree of competitiveness and convergence of economic performance, a high level of protection and improvement of the quality of the environment, the raising of the standard of living and quality of life, and economic and social cohesion and solidarity among Member States.


***


Original Lisbon Treaty


The Treaty of Lisbon (ToL) is still on its rocky road to possible entry into force, but it is the most up-to-date manifestation of what the member state governments want the treaties to say.

We notice that there was no major explicit amendment to Article 125 TEC according to Article 2, point 111 of the original Lisbon Treaty (OJ 17.12.2007 C 306/79):


EMPLOYMENT

111) In Article 125, the words ‘and in Article 2 of this Treaty’ shall be deleted.

***

Renumbering

The Table of equivalences of the original Treaty of Lisbon tells us that Title VIII Employment was to be renumbered Title IX and that Article 125 TEC and TFEU (ToL) was to be renumbered Article 145 TFEU in the consolidated version of the amending treaties (OJ 17.12.2007 C 306/213).

***


Consolidated Lisbon Treaty



Article 66 of the Treaty on the Functioning of the European Union (TFEU) retains the current safeguard measures without substantial change. See the consolidated TFEU, published in the Official Journal of the European Union, OJ 9.5.2008 C 115/73:

TITLE IX
EMPLOYMENT

Article 145 TFEU
(ex Article 125 TEC)

Member States and the Union shall, in accordance with this Title, work towards developing a coordinated strategy for employment and particularly for promoting a skilled, trained and adaptable workforce and labour markets responsive to economic change with a view to achieving the objectives defined in Article 3 of the Treaty on European Union.

***

TEU objectives

Instead of ‘a high level of employment’, Article 3(3) TEU sets the EU ‘aiming at full employment’ in the Treaty of Lisbon (Reform Treaty), but it is better to see the words in context (OJ 9.5.2008 C 115/17):

Article 3(3) TEU
(ex Article 2 TEU)

-----.

3. The Union shall establish an internal market. It shall work for the sustainable development of Europe based on balanced economic growth and price stability, a highly competitive social market economy, aiming at full employment and social progress, and a high level of protection and improvement of the quality of the environment. It shall promote scientific and technological advance.

-----

***

Competence

Aiming at a high level of employment or even at full employment sounds very nice, but the level of employment is determined more by other policies and circumstances than by employment policy in a narrow sense.

What can the European Union (European Community) be expected to contribute to employment policy?

One of the nice things about the Lisbon Treaty is that it clarifies the different EU competences (powers).

Title I Categories and areas of Union competence of the Treaty on the Functioning of the European Union offers us the basic information about the role of the EU (EC). Article 2(3) TFEU evades naming employment under the three clear main categories: exclusive competence, shared competence and competence to support, coordinate or supplement.

The provision does not mention an EU (EC) employment policy. Instead, paragraph 3 speaks of member states’ policies. The member states are supposed to coordinate their economic and employment policies, with the EU’s role to be defined separately:

Article 2(3) TFEU

3. The Member States shall coordinate their economic and employment policies within arrangements as determined by this Treaty, which the Union shall have competence to provide.


***

Coordination of member states’ policies

Article 5 TFEU is a separate Article, which specifically mentions three related areas, where the member states coordinate their policies within the union (instead of including them among the policy areas for supporting, coordinating or supplementing actions in Article 6 TFEU):

Article 5 TFEU

1. The Member States shall coordinate their economic policies within the Union. To this end, the Council shall adopt measures, in particular broad guidelines for these policies.

Specific provisions shall apply to those Member States whose currency is the euro.

2. The Union shall take measures to ensure coordination of the employment policies of the Member States, in particular by defining guidelines for these policies.

3. The Union may take initiatives to ensure coordination of Member States' social policies.


***

Horizontal clause

A high level of employment appears in Article 9 TFEU, a horizontal provision affecting all EU policies and activities, in Title II Provisions having general application:

Article 9 TFEU

In defining and implementing its policies and activities, the Union shall take into account requirements linked to the promotion of a high level of employment, the guarantee of adequate social protection, the fight against social exclusion, and a high level of education, training and protection of human health.

***

Employment policy

Readers interested in the practical side of the European employment strategy can start with the Introduction and the links offered by the European Commission’s DG Employment and Social Affairs:

http://ec.europa.eu/employment_social/employment_strategy/index_en.htm



Ralf Grahn

EMU: Requesting Commission proposals

The Commission’s right (monopoly) of initiative is a central principle in the European Community (EC). Certain matters within economic and monetary union (EMU) offer not only the Council, but individual member states, the opportunity to request proposals or recommendations.


***


Current treaty

Article 115 (ex Article 109d) of the Treaty establishing the European Community (TEC) authorises not only the Council (Ecofin), but also a member state to request the Commission to make a recommendation or a proposal.

Here is the text of Article 115 TEC, from the latest consolidated version of the treaties, OJ 29.12.2006 C 321 E/93:

Article 115 TEC

For matters within the scope of Articles 99(4), 104 with the exception of paragraph 14, 111, 121, 122 and 123(4) and (5), the Council or a Member State may request the Commission to make a recommendation or a proposal, as appropriate. The Commission shall examine this request and submit its conclusions to the Council without delay.


***

Original Lisbon Treaty

In Article 2, point 99, of the original Treaty of Lisbon (ToL) the intergovernmental conference (IGC 2007) amended Article 114 and in point 100 it inserted a new Chapter 3a Provisions specific to member states whose currency is the euro (OJ 17.12.2007 C 306/75).

This means that there were no specific amendments made to Article 115 TEC.

***
Renumbering

The TFEU table of equivalences confirms that Article 115 TFEU (ToL) in the original Treaty of Lisbon was to be renumbered Article 135 TFEU in the consolidated version, under the title ‘Economic and monetary policy’, renumbered Title VIII (OJ 17.12.2007 C 306/214).

(In the consolidated version of the Lisbon Treaty, OJ 9.5.2008 C 115, the Tables of equivalences start on page 361, but the ToL numbers have been omitted.)

***

Consolidated Lisbon Treaty: TFEU

Article 135 of the Treaty on the Functioning of the European Union (TFEU) is found in the consolidated versions of the Treaty on European Union and the Treaty on the Functioning of the European Union, published in the Official Journal of the European Union, OJ 9.5.2008 C 115/106:

Part Three Union policies and internal actions

Title VIII Economic and monetary policy

Chapter 3 Institutional provisions

Article 135 TFEU
(ex Article 115 TEC)

For matters within the scope of Articles 121(4), 126 with the exception of paragraph 14, 138, 140(1), 140(2), first subparagraph, 140(3) and 219, the Council or a Member State may request the Commission to make a recommendation or a proposal, as appropriate. The Commission shall examine this request and submit its conclusions to the Council without delay.

***
Commission proposals

The provision under study brings us into contact with the intricate so called institutional balance of the European Community. Normally, decisions under the TEC are made on proposals by the Commission. This power (monopoly) of initiative is tempered slightly by Article 208 TEC, which gives the Council the right to request the Commission to undertake any studies the Council considers desirable for the attainment of common objectives, and to submit to it any appropriate proposals.

Article 115 TEC makes one more chink in the armour of the Commission, by extending the power to request proposals or recommendations to each member state for matters within the scope of the Articles mentioned.

A request does not mean that the Commission has to make a proposal or recommendation, but it leads to an obligation to act. The Commission has a duty to examine the request and submit its conclusions to the Council without delay.

***


Scope

The matters subject to a request by a member state are the following:

Article 99(4) TEC: Recommendation concerning a member state whose policies are inconsistent with the broad economic policy guidelines or risk jeopardising the proper functioning of economic and monetary union (EMU).

Article 104 TEC with the exception of paragraph 14: Concerns the excessive deficit procedure.

Article 111 TEC on exchange-rate systems.

Article 121 TEC regarding convergence reports.

Article 122 TEC on the abrogation of derogations from the single currency.

Article 123(4) and (5) TEC on euro conversion rates and euro introduction.

***

Common concern

With a single currency, the euro, decentralised economic and fiscal policies become matters of ‘common concern’ even without Article 99(1) TEC saying so.

Article 115 TEC at least offers each member state the opportunity to voice its concern officially.

The present financial turmoil and the severe economic downturn already strain the euro and many core European Community policies severely, when countries with the largest government deficits expand them further, (proposals for) protectionistic measures come in all shapes and sizes, and national administrations try to cope with cross-border problems affecting their neighbours.


Ralf Grahn

Public procurement in Sweden

Internal market rules are applied to public procurement in the EU member states through European Community directives, transposed into national law.

But how single is the Single Market, if you are a European or international firm and you want to do business in one of the member states of the European Union?

You may even want to supply goods or services to central, regional or local government.

We look at the procurement legislation in Sweden, with a view to the information available to foreign suppliers in English.

***

The European Community directives are the foundation, and naturally they are available in English.

The so called Classic Directive:

Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts (OJ 30.4.2004 L 134/114), since amended. This is a link to the consolidated version:

http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CONSLEG:2004L0018:20080101:EN:PDF



The so called Utilities Directive:

Directive 2004/17/EC of the European Parliament and of the Council of 31 March 2004 coordinating the procurement procedures of entities operating in the water, energy, transport and postal services sectors (OJ 30.4.2004 L 134/1) has been amended a few times, so this is a link to the consolidated version:

http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CONSLEG:2004L0017:20080101:EN:PDF

***

Preparing transposition in Sweden

When the Swedish Government got around to transposing the EC Directives, it presented a massive Bill to the Parliament. The main proposal runs to 570 pages:

Regeringens proposition 2006/07:128 Ny lagstiftning om offentlig upphandling och upphandling inom områdena vatten, energi, transporter och posttjänster:
http://www.regeringen.se/content/1/c6/08/43/76/9cb61697.pdf

The Government Bill was accompanied by two sets of Annexes.

Annexes 1 – 6 (373 pages):

http://www.regeringen.se/content/1/c6/08/43/76/c6856bc3.pdf

Annexes 7 – 15 (280 pages):

http://www.regeringen.se/content/1/c6/08/43/76/1aa64eec.pdf

***

Two statutes

The new Swedish procurement legislation consists of two main Acts, in force from 1 January 2008.

Lag om offentlig upphandling (Swedish Public Procurements Act)

The Act transposing the Classic Directive 2004/18/EC is called Lag (2007:1091) om offentlig upphandling (abbreviated LOU)

***

Försörjningslagen

Lag (2007:1092) om områdena vatten, energi, transporter och posttjänster (colloquially Försörjningslagen) transposes the Utilities Directive 2004/17/EC.

Current Swedish legislation can be accessed through (in Swedish):

www.lagrummet.se

***

Translations?

The Swedish Government offers some unofficial translations of legal acts on a web page called Swedish statutes in translation, with links to a dozen legal areas, but I was unable to find any translation of the procurement acts there:

http://www.sweden.gov.se/sb/d/3288

***

Swedish Competition Authority

The Swedish Competition Authority (Konkurrensverket) is responsible for improving competition and, since 1 September 2007, for supervising public procurement. It offers some basic information, news and publications in English:

http://www.kkv.se/default____218.aspx

Last year, the Competition Authority published The Strategy of the Swedish Competition Authority and its Direction for Procurement Issues (30 pages), where it set out its main goals to enhance competition in public procurement:

http://www.kkv.se/upload/Filer/ENG/Publications/strategidok_eng.pdf

The main public procurement aims of the Swedish Competition Authority are the following:

 procuring entities being aware of their options regarding procurement and that they avoid violating the Swedish Public Procurements Act,

 the competitive sector of the Swedish economy grows and the competitive solutions are applied to an increased extent in the public sector,

 suppliers have the opportunity and want to take part in procurements,

 Swedish consumers, procuring entities and suppliers know about the significance of competition for a varied selection goods and services of good quality at reasonable prices.


By the way, there is an unofficial Swedish translation of the Swedish Competition Act (but I found no translation of the procurement acts):

http://www.kkv.se/upload/Filer/ENG/Publications/compact_eng.pdf


***

State procurement

The Swedish state coordinates its purchasing activities. For some information in English, go to Statlig inköpssammordning, Coordination of government procurement:

http://www.avropa.nu/templates/Page____9.aspx

There is a short presentation of the coordinating body, the Swedish Financial Management Aurhority (Ekonomistyrningsverket) on:

http://www.avropa.nu/upload/Dokument/Yttranden,%20rapporter,%20pm/In%20English.pdf

***

Sveriges offentliga inköpare SOI

Sveriges Offentliga Inköpare SOI is an association for about 1,100 purchasing professionals, but the information is available only in Swedish:

http://www.soi.se/

***

Swedish National Board of Trade

Kommerskollegium (the Swedish National Board of Trade) is the Swedish governmental agency dealing with foreign trade and trade policy. Its main areas of activity are related to the European Community:

 The Internal Market
 The Customs Union
 External Trade policy

The web pages offer a fair amount of basic information in English. For more, go to:

http://www.kommers.se/templates/Standard____3127.aspx

The National Board of Trade is a partner in the SOLVIT network.

***

Green public procurement

Three public procurement themes are the darlings of politicians. One is the participation of small and medium sized enterprises (SMEs), the second is e-procurement and the third one is green public procurement.

Sweden would not be Sweden without green procurement cropping up. Naturvårdsverket (the Swedish Environmental Protection Agency) offers a point of departure on its page More and more public bodies in Sweden have guidelines on green procurement:


http://www.naturvardsverket.se/en/In-English/Menu/Climate-change/Swedish-News-on-Climate-Change/More-and-more-public-bodies-in-Sweden-have-guidelines-on-green-procurement/

***

Upphandling24

Upphandling24 is a commercial website in Swedish, dedicated to public procurement news and information:

http://upphandling24.idg.se/

***

Confederation of Swedish Enterprise

Svenskt Näringsliv (the Confederation of Swedish Enterprise) lobbies for more open public markets. The information is in Swedish:

http://www.svensktnaringsliv.se/fragor/offentlig_upphandling/article15121.ece

***

Local Authorities and Regions

For the members of Sveriges Kommuner och Landsting (the Swedish Association of Local Authorities and Regions, SALAR) the complicated procurement legislation is a constant headache, which results in demands for simplification and continuous monitoring of new proposals and decisions (in Swedish):

http://www.skl.se

***

Freedom of choice

The Swedish Competition Authority has a page in English ‘New rules pave the way for freedom of choice’ on a new government proposal. The law, due to come into force on 1 January 2009, regulates how municipalities and county councils are to proceed if they decide to introduce a freedom-of-choice system in their care services:

http://www.konkurrensverket.se/t/NewsPage____3987.aspx

The Government Bill, Regeringens proposition 2008/09:29 Lag om valfrihetssystem, is available in Swedish:

http://www.regeringen.se/content/1/c6/11/25/56/e7303623.pdf

***

It is hard to penetrate new markets, especially outside one’s own home country, and public procurement adds its own twist.

The language barriers within the internal market are formidable, and in Sweden the available official information in English can be described as basic. But generally Swedish officials are helpful and English is almost a second language to them, so once you get the ball rolling, you have every chance of success.


Ralf Grahn

EU: State aid to financial institutions

The European Commission has quickly published guidance on state aid to beleaguered financial institutions. The Communication from the Commission ‘The application of State aid rules to measures taken in relation to financial institutions in the context of the current global financial crisis’ is available at:

http://ec.europa.eu/comm/competition/state_aid/legislation/banking_crisis_paper.pdf

The timely Communication builds on the ECOFIN principles, and it tries to steer a path between aiding fundamentally sound banks in a flexible manner and evading distortions between different players.

The Communication is going to be “hot stuff” for governments and banks and their advisors.


Ralf Grahn

EU: Monetary policy If

The European Union lacks a real general (political) government. The EU even lacks a proper economic government, but there is a monetary government in place for 320 million EU citizens in 15 member states: the Eurosystem, constituted by the European Central Bank (ECB) and the national central banks of the euro area, within the broader European System of Central Banks (ESCB).

***

The objectives of economic and monetary policy are laid out in Article 4 of the Treaty establishing the European Community (TEC).

The European Union, or more precisely, the European Community (EC), has set out common goals for the member states and the EC: an economic policy based on close coordination of member states’ economic policies, on the internal market and on common objectives. It is based on an open market economy with free competition.

These activities include the single currency (euro) and the conduct of a single monetary policy and exchange-rate policy with the primary objective to maintain price stability and, without prejudice to this objective, to support the general economic policies in the Community, in accordance with the principle of an open market economy with free competition.

The guiding principles for the Member States and the Community are: stable prices, sound public finances and monetary conditions and a sustainable balance of payments.

***

Despite the common objectives, Paul Craig and Gráinne de Búrca offer a thoughtful reminder of the tensions between economic and monetary policy in ‘EU Law ─ Text, Cases, and Materials (Oxford University Press, 4th edition, 2007), page 741:

“The relationship between monetary policy and broader economic policy remains problematic. The EC has far greater control over monetary policy, as encapsulated in the Euro and the attendant ECB, than it does over broader economic policy. This is so notwithstanding the stability and growth pact. The EC is nonetheless caught in a conundrum in this respect. It is generally recognised that there is an intimate relationship between monetary policy and economic policy; if countries run long-term budgetary deficits then this will cause the currency markets to take a poor view of the value of the Euro. There are however political difficulties for the EC in extending control over national economic policy, or even in making full use of the existing regime, lest it be accused of excessive centralization of economic decision-making.”


***


Article 8 TEC (ex Article 4a) sets out the basic institutional rules for monetary policy, with the establishment of the European system of central banks and the European Central Bank (OJ 29.12.2006 C 321/47):

Article 8 TEC

A European system of central banks (hereinafter referred to as ‘ESCB’) and a European Central Bank (hereinafter referred to as ‘ECB’) shall be established in accordance with the procedures laid down in this Treaty; they shall act within the limits of the powers conferred upon them by this Treaty and by the Statute of the ESCB and of the ECB (hereinafter referred to as ‘Statute of the ESCB’) annexed thereto.

***

Eurosystem and euro area (Eurozone)

The Governing Council of the European Central Bank has agreed to use the term ‘Eurosystem’ to denote those components of the European System of Central Banks that carry out its basic tasks, i.e. the European Central Bank and the national central banks of those Member States which have adopted the single currency in accordance with the Treaty establishing the European Community.

I am going to use ‘euro area’ and Eurozone interchangeably.

***

Objectives of monetary policy

Article 105 TEC (ex Article 105) sets out the objectives of EC monetary policy and mandates the European Central Bank (ECB) and the broader European System of Central Banks (ESCB) to implement EC monetary policy (OJ 29.12.2006 C 321 E/87).



Price stability

The primary objective of the ESCB is to maintain price stability (Article 105(1) TEC), meaning a low level of inflation.

The ECB’s Governing Council has defined price stability as "a year-on-year increase in the Harmonised Index of Consumer Prices (HICP) for the euro area of below 2%. Price stability is to be maintained over the medium term".

The Governing Council has also clarified that, in the pursuit of price stability, it aims to maintain inflation rates below, but close to, 2% over the medium term.

Article 2 of the Protocol (No 18) on the Statute of the European System of Central Banks and the European Central Bank, as presented in the latest consolidated version of the treaties, OJ 29.12.2006 C 321 E/256, reiterates the basic treaty provisions on the objectives. .


***

Secondary objectives

The other objectives of the Eurosystem are clearly secondary to price stability.

Without prejudice to the objective of price stability, the ESCB shall support the general economic policies in the Community with a view to contributing to the achievement of the objectives of the Community as laid down in Article 2 TEC.

The ESCB shall act in accordance with the principle of an open market economy with free competition, favouring an efficient allocation of resources, and in compliance with the principles set out in Article 4 TEC.

***

Tasks of the Eurosystem


The basic tasks to be carried out through the ESCB are laid out in Article 105(2) and in Article 105(5) TEC.

The tasks are repeated in Article 3 of the Statute.

***

The Eurosystem (ESCB) defines and implements the monetary policy of the Community.

Chapter 4 of the Statute ‘Monetary functions and operations of the ESCB’ (Articles 17 to 24) define various operations.


For more detail, see the consolidated version of Guideline of the European Central Bank of 31 August 2000 on monetary policy instruments and procedures of the Eurosystem (ECB/2000/7)
(OJ 11.12.2000 L 310/1):

http://www.ecb.europa.eu/ecb/legal/pdf/02000x0776-20080101-en.pdf


***

The Eurosystem conducts foreign-exchange operations consistent with the provisions of Article 111 TEC.

***

Foreign reserves

The Eurosystem holds and manages the official foreign reserves of the Eurozone member states.

See the ECB web page ‘Foreign reserves management/operations’:

http://www.ecb.europa.eu/ecb/legal/107663/1011/html/index.en.html


***

Target2 payment system

The Eurosystem promotes the smooth operation of payment systems.

See Guideline of the ECB of 26 April 2007 on a Trans-European Automated Real-time Gross settlement Express Transfer system (TARGET2) (ECB/2007/2), OJ 8.9.2007 L 237/1, and
Decision of the ECB of 24 July 2007 concerning the terms and conditions of TARGET2-ECB (ECB/2007/7), OJ 8.9.2007 L 237/71.

***

Prudential supervision

Pursuant to Article 105(5), the ESCB shall contribute to the smooth conduct of policies pursued by the competent authorities relating to the prudential supervision of credit institutions and the stability of the financial system.

Article 25 of the Statute places clear limits on the ECB’s powers to act independently, stressing the contributory role:

Article 25 ECB Statute

25.1. The ECB may offer advice to and be consulted by the Council, the Commission and the
competent authorities of the Member States on the scope and implementation of Community
legislation relating to the prudential supervision of credit institutions and to the stability of the
financial system.

25.2. In accordance with any decision of the Council under Article 105(6) of this Treaty, the
ECB may perform specific tasks concerning policies relating to the prudential supervision of credit institutions and other financial institutions with the exception of insurance undertakings.


***

Advisory functions

Mandatory consultation

According to Article 105(4) TEC, the ECB shall be consulted on future legislation by the European Community and the national authorities, as the case may be:

— on any proposed Community act in its fields of competence,

— by national authorities regarding any draft legislative provision in its fields of competence, but within the limits and under the conditions set out by the Council in accordance with the procedure laid down in Article 107(6).


Own accord opinions

The ECB may submit opinions to the appropriate Community institutions or bodies or to national authorities on matters in its fields of competence.


These functions are echoed in Article 4 of the Statute, with a reference to Article 42 on complementary legislation.

***


Article 105(6) TEC: The Council may, acting unanimously on a proposal from the Commission and after consulting the ECB and after receiving the assent of the European Parliament, confer upon the ECB specific tasks concerning policies relating to the prudential supervision of credit institutions and other financial institutions with the exception of insurance undertakings.

***


Statistical information

Article 5 of the Statute, the ECB, assisted by the national central banks, collects necessary statistical information.

***

International cooperation

Article 6 of the Statute sets out that the ECB, within the ESCB area of competence, decides how the ESCB shall be represented. The ECB and, subject to its approval, the national central banks may participate in international monetary institutions.

This is without prejudice to Article 111(4) TEC on the Council’s powers to decide on the position of the EC at international level as regards issues of particular relevance to economic and monetary union and on its representation.

***

Reporting commitments

According to Statute Article 15 the ECB has an obligation to publish reports and statements free of charge to interested parties, i.a. quarterly reports, consolidated weekly financial statements and annual reports.

Basic information about the European Central Bank and its activities is abundant and well ordered on:

http://www.ecb.europa.eu



Ralf Grahn