European Union versus SOPA and Protect IP Act?

The European Parliament took a stand against the controversial Stop Online Piracy Act (SOPA) bill debated in the US House of Representatives and its sister, the Protect IP Act (Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act of 2011) discussed in the Senate.

Both bills raise serious concerns regarding the integrity of the internet as well as for service providers and businesses, not only in the United States, but globally.

How about the other EU institutions?

Here are the results of a quick search for public EU materials through the EEAS web pages.


European External Action Service EEAS

We start from the country page for the United States of America at the European External Action Service EEAS, where we find no specific item dedicated to the issue. However, there is material about the recent summit between the European Union and the United States of America.


EU-US summit

We take a closer look at the recent EU-US summit, 28 November 2011. Did the president of the European Council Herman Van Rompuy and the president of the European Commission José Manuel Barroso, the high representative Catherine Ashton or trade commissioner Karel De Gucht raise issues related to the internet in their discussions with president Barack Obama and secretary of state Hillary Clinton?

In the EU-US Summit Joint statement, Washington, 28 November 2011 (document 17805/11), paragraph 4 mentioned the work of the Transatlantic Economic Council (TEC), underlining the need to avoid unnecessary divergence in regulations and standards affecting trade, but also highlighting the the efforts to protect intellectual property rights (IPR):

4. We applaud the success of the Transatlantic Economic Council (TEC) on a wide range of issues and welcome the progress achieved in secure trade and supply chain security, electric vehicles and related infrastructure, regulatory practices, small and medium-sized enterprises, and in the Information Communications Technology (ICT) sector. We encourage the TEC’s continued leadership in helping us avoid unnecessary divergence in regulations and standards that adversely affects trade. We urge the TEC, together with our regulators and standard-setters to step up co-operation in key sectors such as nanotechnology and raw materials to develop compatible approaches to emerging technologies. We also instruct the TEC to pursue its work on strategic economic questions, not least in the field of investment, innovation policy, and the protection of intellectual property rights to level the playing field for our companies in third countries, in particular emerging economies.

The leaders did pay respect to an undivided global internet, before plunging into the security-driven concrete agenda, in paragraph 22:

22. We share a commitment to a single, global Internet, and will resist unilateral efforts to weaken the security, reliability, or independence of its operations — recognizing that respect for fundamental freedoms online, and joint efforts to strengthen security, are mutually reinforcing. We welcome the progress made by the EU-U.S. Working Group on Cyber-security and Cyber-crime, notably the successful Cyber Atlantic 2011 exercise. We endorse its ambitious goals for 2012, including combating online sexual abuse of children; enhancing the security of domain names and Internet Protocol addresses; promotion of international ratification, including by all EU Member States, of the Budapest Convention on Cybercrime ideally by year’s end; establishing appropriate information exchange mechanisms to jointly engage with the private sector; and confronting the unfair market access barriers that European and U.S. technology companies face abroad.

The mandate of the new TEC high level working group on jobs and growth includes regulatory issues affecting trade (press release MEMO/11/843). Thus, it could be a forum for the prevention of new barriers.


Transatlantic Economic Council TEC

The Commission's DG Trade provides an overview of the meeting of the Transatlantic Economic Council TEC, i.a.:

Information and Communication Technology: The EU and US reviewed the Information and Communication Technology (ICT) trade related principles which were agreed earlier this year and discussed ways of promoting the implementation of these principles within their bilateral economic relationship and in their trade negotiations with third countries. (IP/11/402)

The press release IP/11/402 notes the agreement on a set of ten fundamental principles for trade in information and communication technology (ICT) services, bilaterally and in order to open up markets for EU and US companies worldwide.

Logically, bilateral and globally propagated standards for information and communication technology (ICT) should exclude the creation of unilateral barriers, although the agreed principles come equipped with a caveat, far from clear in scope:

The EU-US Trade Principles for ICT Services have been agreed on a best endeavour basis and do not affect the rights of the EU or the US to maintain their respective policy approaches to the protection of intellectual property, privacy and personal data and the enhancement of cultural diversity.

The two-page document adds that financial services (one of the SOPA concerns) are excluded from the scope:

European Union-United States Trade Principles for Information and Communication Technology Services (4 April 2011)

The ten principles are briefly defined. Many of them could be affected by the SOPA and Protect IP bills.


Security and intellectual property or fundamental rights?

TFTP, ACTA, PNR... the list of invasive treaties problematic with regard to fundamental rights in the EU has grown.

The summit declaration and the TEC principles contain a few vague pointers, but what if the legislative powers in the USA decide to go even further than the executive, which works hard enough as it is to export its agendas on internet security and protection of intellectual property?

What have the EU institutions said and done? Where do they stand on freedoms and rights?



Ralf Grahn

European Union: Social policy tasks and limits

Is a 25 page Constitution for the European Union possible?

The governments of member states of the European Union have negotiated and compromised on the treaty texts during recurring intergovernmental conferences. Both the basic structure of the EU and this mode of operation have led to long and complicated treaties.

The idea of a readable 25 page Constitution for the citizens of Europe has been met with derision from some quarters.

In my view, it is possible to write a short and readable Constitution for Europe, but for a different union. Simpler and clearer.

Laying out the social policy tasks and setting the limits for European Community (European Union) action, the member state governments have fine-tuned fields and modes of action as well as decision-making procedures.

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Social policy objectives

How does the European Community (European Union) go about achieving the social policy objectives? The objectives mentioned in Article 136 TEC (ex Article 117), in the latest consolidated version of the treaties, OJ 29.12.2006 C 321 E/103, are:

– promotion of employment

– improved and harmonised living and working conditions

– social protection

– dialogue between management and labour

– development of human resources

– combating exclusion.

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Article 137 TEC

Article 137 (ex Article 118) of the Treaty establishing the European Community (TEC) illustrates how the member states governments have wrangled over detailed prescriptions for themselves during intergovernmental conferences. (A readable 25 page EU Constitution is possible, but for a different union.)
In OJ 29.12.2006 C 321 E/107–108:
Article 137 TEC

1. With a view to achieving the objectives of Article 136, the Community shall support and complement the activities of the Member States in the following fields:

(a) improvement in particular of the working environment to protect workers' health and safety;

(b) working conditions;

(c) social security and social protection of workers;

(d) protection of workers where their employment contract is terminated;

(e) the information and consultation of workers;

(f) representation and collective defence of the interests of workers and employers, including codetermination, subject to paragraph 5;

(g) conditions of employment for third-country nationals legally residing in Community territory;

(h) the integration of persons excluded from the labour market, without prejudice to Article 150;

(i) equality between men and women with regard to labour market opportunities and treatment at work;

(j) the combating of social exclusion;

(k) the modernisation of social protection systems without prejudice to point (c).

2. To this end, the Council:

(a) may adopt measures designed to encourage cooperation between Member States through initiatives aimed at improving knowledge, developing exchanges of information and best practices, promoting innovative approaches and evaluating experiences, excluding any harmonization of the laws and regulations of the Member States;

(b) may adopt, in the fields referred to in paragraph 1(a) to (i), by means of directives, minimum requirements for gradual implementation, having regard to the conditions and technical rules obtaining in each of the Member States. Such directives shall avoid imposing administrative, financial and legal constraints in a way which would hold back the creation and development of small and medium-sized undertakings.

The Council shall act in accordance with the procedure referred to in Article 251 after consulting the Economic and Social Committee and the Committee of the Regions, except in the fields referred to in paragraph 1(c), (d), (f) and (g) of this Article, where the Council shall act unanimously on a proposal from the Commission, after consulting the European Parliament and the said Committees. The Council, acting unanimously on a proposal from the Commission, after consulting the European Parliament, may decide to render the procedure referred to in Article 251 applicable to paragraph 1(d), (f) and (g) of this Article.

3. A Member State may entrust management and labour, at their joint request, with the implementation of directives adopted pursuant to paragraph 2.

In this case, it shall ensure that, no later than the date on which a directive must be transposed in accordance with Article 249, management and labour have introduced the necessary measures by agreement, the Member State concerned being required to take any necessary measure enabling it at any time to be in a position to guarantee the results imposed by that directive.

4. The provisions adopted pursuant to this Article:

— shall not affect the right of Member States to define the fundamental principles of their social security systems and must not significantly affect the financial equilibrium thereof,

— shall not prevent any Member State from maintaining or introducing more stringent protective measures compatible with this Treaty.

5. The provisions of this Article shall not apply to pay, the right of association, the right to strike or the right to impose lock-outs.


***


Original Lisbon Treaty (ToL)

Article 2, point 116 of the original Treaty of Lisbon (ToL) makes a few specific amendments in addition to the horizontal ones (OJ 17.12.2007 C 306/81):

116) Article 137 shall be amended as follows:

(a) in paragraph 2, in the introductory words of the first subparagraph, the words ‘the Council:’ shall be replaced by ‘the European Parliament and the Council:’ and the first sentence of the second subparagraph shall be split into two subparagraphs which shall read as follows:

‘The European Parliament and the Council shall act in accordance with the ordinary legislative procedure after consulting the Economic and Social Committee and the Committee of the Regions.

In the fields referred to in paragraph 1(c), (d), (f) and (g), the Council shall act unanimously, in accordance with a special legislative procedure, after consulting the European Parliament and the said Committees.’.

The second sentence of the second subparagraph shall become the last subparagraph, and the words ‘of this Article’ shall be deleted;

(b) in paragraph 3, at the end of the first subparagraph, the following words shall be added ‘or, where appropriate, with the implementation of a Council decision adopted in accordance with Article 139’; in the second subparagraph, the words ‘a directive must be transposed in accordance with Article 249’ shall be replaced by ‘a directive or a decision must be transposed or implemented,’ and the words ‘or that decision’ shall be added at the end of the subparagraph.


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Renumbering ToL

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 the Article 137 TFEU (ToL) was to be renumbered Article 153 TFEU in the consolidated version of the amending treaties (OJ 17.12.2007 C 306/216).


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Consolidated Lisbon Treaty

After the modest amendments, Article 153 of the Treaty on the Functioning of the European Union (TFEU), in 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 153 TFEU
(ex Article 137 TEC)

1. With a view to achieving the objectives of Article 151, the Union shall support and complement the activities of the Member States in the following fields:

(a) improvement in particular of the working environment to protect workers' health and safety;

(b) working conditions;

(c) social security and social protection of workers;

(d) protection of workers where their employment contract is terminated;

(e) the information and consultation of workers;
(f) representation and collective defence of the interests of workers and employers, including codetermination, subject to paragraph 5;

(g) conditions of employment for third-country nationals legally residing in Union territory;

(h) the integration of persons excluded from the labour market, without prejudice to Article 166;

(i) equality between men and women with regard to labour market opportunities and treatment at work;

(j) the combating of social exclusion;

(k) the modernisation of social protection systems without prejudice to point (c).

2. To this end, the European Parliament and the Council:

(a) may adopt measures designed to encourage cooperation between Member States through initiatives aimed at improving knowledge, developing exchanges of information and best practices, promoting innovative approaches and evaluating experiences, excluding any harmonisation of the laws and regulations of the Member States;

(b) may adopt, in the fields referred to in paragraph 1(a) to (i), by means of directives, minimum requirements for gradual implementation, having regard to the conditions and technical rules obtaining in each of the Member States. Such directives shall avoid imposing administrative, financial and legal constraints in a way which would hold back the creation and development of small and medium-sized undertakings.

The European Parliament and the Council shall act in accordance with the ordinary legislative procedure after consulting the Economic and Social Committee and the Committee of the Regions.

In the fields referred to in paragraph 1(c), (d), (f) and (g), the Council shall act unanimously, in accordance with a special legislative procedure, after consulting the European Parliament and the said Committees.

The Council, acting unanimously on a proposal from the Commission, after consulting the European Parliament, may decide to render the ordinary legislative procedure applicable to paragraph 1(d), (f) and (g).

3. A Member State may entrust management and labour, at their joint request, with the implementation of directives adopted pursuant to paragraph 2, or, where appropriate, with the implementation of a Council decision adopted in accordance with Article 155.

In this case, it shall ensure that, no later than the date on which a directive or a decision must be transposed or implemented, management and labour have introduced the necessary measures by agreement, the Member State concerned being required to take any necessary measure enabling it at any time to be in a position to guarantee the results imposed by that directive or that decision.

4. The provisions adopted pursuant to this Article:

— shall not affect the right of Member States to define the fundamental principles of their social security systems and must not significantly affect the financial equilibrium thereof,

— shall not prevent any Member State from maintaining or introducing more stringent protective measures compatible with the Treaties.

5. The provisions of this Article shall not apply to pay, the right of association, the right to strike or the right to impose lock-outs.

***

Competence

If you look at the general TFEU categories of competence, you will find ‘social policy, for the aspects defined in this Treaty’, mentioned as a shared competence in Article 4(2)(b) TFEU. But EU initiatives to ensure coordination of member states’ social policies are mentioned among the ‘sui generis’ coordination areas in Article 5 TFEU on economic, employment and social policy coordination.

However, Article 153 TFEU starts by mentioning areas where the EU acts to support or complement member states’ activities, reminiscent of the actions mentioned in Article 6 TFEU.

Article is exceptionally detailed in excluding competence and in grading the procedures.

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Scope

The long list in paragraph 1 has to be read in conjunction with the prohibition on harmonisation of legislation, the policy areas excluded by paragraph 5 and the effects prohibited by paragraph 4.

The fields mentioned in paragraph 1(a) to (i) are subject only to potential minimum standards.

***

Unanimity or less?

The Council must be unanimous in the following fields:

(c) social security and social protection of workers;

(d) protection of workers where their employment contract is terminated;

---
(f) representation and collective defence of the interests of workers and employers, including codetermination, subject to paragraph 5;

(g) conditions of employment for third-country nationals legally residing in Union territory;

A unanimous Council could use the specific passerelle clause (enabling clause) to start using the ordinary legislative procedure with regard to paragraph 1(d), (f) and (g).

Applying the ordinary legislative procedure to social security and social protection of workers, paragraph 1(c) would require an amendment of the treaty.

In other policy fields mentioned, the ordinary legislative procedure is applied.


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.



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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).
.

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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.


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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

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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

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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

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.



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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.


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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).


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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.

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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).


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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.


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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

EU: Employment policies a common concern

Economic and employment policies are primarily carried out by the EU member states, but regarded as a matter of common concern and coordinated at European Union level.

We look at the treaty framework, the current treaty and the Treaty of Lisbon, before offering a few pointers about EU employment policies for further reading.




***


Current TEC



The current Article 126 (ex Article 109o) of the Treaty establishing the European Community (TEC), under the Title VIII Employment, sets out the member states’ employment policies as the primary means to achieve the strategic employment aims of the European Community (European Union).

But the member states do not act in a vacuum, regardless of each other or the European Community as a whole. Their actions are tempered or enhanced by the coordinated strategy for employment referred to in the preceding Article 125 TEC.

To the employment objectives mentioned in Article 125 TEC, Article 126 TEC adds action consistent with the broad economic policy guidelines adopted by the Council.

Where, pursuant to Article 99(1) TEC the economic policies of the member states are to be regarded as a common concern and coordinated within the Council, Article 126(2) TEC lays down an obligation for the member states to regard promoting employment as a common concern and to coordinate their employment actions within the Council, although with the somewhat unclear proviso that this takes place ‘having regard to national practices related to the responsibilities of management and labour’.

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

Article 126 TEC

1. Member States, through their employment policies, shall contribute to the achievement of the objectives referred to in Article 125 in a way consistent with the broad guidelines of the economic policies of the Member States and of the Community adopted pursuant to Article 99(2).

2. Member States, having regard to national practices related to the responsibilities of management and labour, shall regard promoting employment as a matter of common concern and shall coordinate their action in this respect within the Council, in accordance with the provisions of Article 128.


***


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.

The changes to the Title on employment were minimal. Article 2, point 111 deleted a few words from Article 125 TEC and the following point (112) concerned the common commercial policy. Thus, Article 126 TEC and the following ones underwent only horizontal or technical amendments (OJ 17.12.2007 C 306/79).



***

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 126 TEC and TFEU (ToL) was to be renumbered Article 146 TFEU in the consolidated version of the amending treaties (OJ 17.12.2007 C 306/214).


***


Consolidated Lisbon Treaty



Article 146 of the Treaty on the Functioning of the European Union (TFEU) takes over the contents of the existing Article 126 TEC. The ‘Community’ is replace by the ‘Union’, according to the new terminology, and the Articles referred to have been adapted to the renumbering. See the consolidated TFEU, published in the Official Journal of the European Union, OJ 9.5.2008 C 115/112:

TITLE IX
EMPLOYMENT

Article 146 TFEU
(ex Article 126 TEC)

1. Member States, through their employment policies, shall contribute to the achievement of the objectives referred to in Article 145 in a way consistent with the broad guidelines of the economic policies of the Member States and of the Union adopted pursuant to Article 121(2).

2. Member States, having regard to national practices related to the responsibilities of management and labour, shall regard promoting employment as a matter of common concern and shall coordinate their action in this respect within the Council, in accordance with the provisions of Article 148.


***


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 October 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



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: Balance of payments crisis and safeguard measures

EU institutions, finance ministries, corporations and EU citizens have reason to study the possible remedies to serious balance of payments difficulties, in case matters take a turn to the worse.

“Living in interesting times” as regards international financial markets, it may be good to know that the current Treaty establishing the European Community (TEC) and the Treaty on the Functioning of the European Union (TFEU) foresee temporary safeguard measures to protect economic and monetary union (EMU) in exceptional circumstances.

There are separate transitional provisions for the EU member states with a derogation, i.e. outside the eurozone.


***

EMU safeguard measures

Current TEC

The European Community (European Union) prohibits all restrictions on the movement of capital and payments between member states and between member states and third countries, although abolishing existing restrictions with regard to third countries is a less absolute aim.

Within the context of economic and monetary union (EMU) restrictions are unthinkable, but in exceptional circumstances serious difficulties may give cause for temporary safeguard measures with regard to third countries.


The current Article 59 (ex Article 109i) of the Treaty establishing the European Community (TEC) is found in the latest consolidated version of the treaties (OJ 29.12.2006 C 321 E/65):

Article 59 TEC

Where, in exceptional circumstances, movements of capital to or from third countries cause, or threaten to cause, serious difficulties for the operation of economic and monetary union, the Council, acting by a qualified majority on a proposal from the Commission and after consulting the ECB, may take safeguard measures with regard to third countries for a period not exceeding six months if such measures are strictly necessary.

***

Lisbon Treaty


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

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

Part Three ‘Policies and internal actions of the Union’

Title IV TFEU (ex Title III) ‘Free movement of persons, services and capital’

Chapter 4 ‘Capital and payments’

Article 66 TFEU
(ex Article 59 TEC)

Where, in exceptional circumstances, movements of capital to or from third countries cause, or threaten to cause, serious difficulties for the operation of economic and monetary union, the Council, on a proposal from the Commission and after consulting the European Central Bank, may take safeguard measures with regard to third countries for a period not exceeding six months if such measures are strictly necessary.


***

Comment


We live “in interesting times” as regards the stability of the financial markets, so Article 59 TEC and Article 66 TFEU may be of more than purely theoretical interest.

The provision offers the EU possibilities to safeguard the operation of economic and monetary union (EMU) with regard to third countries.

These measures can not be taken lightly: ‘exceptional circumstances’, ‘serious difficulties’ and ‘strictly necessary’ all circumscribe recourse to such measures, which are contrary to the aims of free movement of capital and payments.

In addition, six months is the maximum duration of a measure (but the wording does not exclude a new decision).

***

Transitional provisions

There are still twelve EU member states outside the eurozone. Denmark and the United Kingdom have negotiated exceptions (opt-outs) unlimited in time. The other member states with a derogation are Bulgaria, the Czech Republic, Estonia, Latvia, Lithuania, Hungary, Poland, Romania, Slovakia (until 1 January 2009) and Sweden.

The transitional EMU provisions take account of potential balance of payments problems at two levels, serious problems and a sudden crisis.

***

Serious balance of payments difficulties

Existing TEC

Article 119 TEC (ex Article 109h) sets out the current rules, which illustrate how the problems of one member state may have repercussions for the rest, notably through the internal market and external trade (in relation to third countries).

Primarily, if a member state (with a derogation) is seriously threatened with balance of payments problems, the member state acts, within the provisions of the TEC, to remedy the situation. Then, the Commission investigates and may issue recommendations to the state.

If the actions are insufficient, the Commission can recommend that the Council grants mutual assistance to the member state in difficulties.

If mutual assistance is not granted, or if the assistance given and the measures taken prove to be insufficient, the Commission can authorise the member state to take (exceptional) protective measures. These are subject to ex post review by the Council.

The current Article 119 TEC (in the latest consolidated version of the treaties, OJ 29.12.2006 C 321 E/96-97):


Article 119 TEC

1. Where a Member State is in difficulties or is seriously threatened with difficulties as regards its balance of payments either as a result of an overall disequilibrium in its balance of payments, or as a result of the type of currency at its disposal, and where such difficulties are liable in particular to jeopardise the functioning of the common market or the progressive implementation of the common commercial policy, the Commission shall immediately investigate the position of the State in question and the action which, making use of all the means at its disposal, that State has taken or may take in accordance with the provisions of this Treaty. The Commission shall state what measures it recommends the State concerned to take.

If the action taken by a Member State and the measures suggested by the Commission do not prove sufficient to overcome the difficulties which have arisen or which threaten, the Commission shall, after consulting the Committee referred to in Article 114, recommend to the Council the granting of mutual assistance and appropriate methods therefor.

The Commission shall keep the Council regularly informed of the situation and of how it is developing.

2. The Council, acting by a qualified majority, shall grant such mutual assistance; it shall adopt directives or decisions laying down the conditions and details of such assistance, which may take such forms as:

(a) a concerted approach to or within any other international organisations to which Member States may have recourse;

(b) measures needed to avoid deflection of trade where the State which is in difficulties maintains or reintroduces quantitative restrictions against third countries;

(c) the granting of limited credits by other Member States, subject to their agreement.
3. If the mutual assistance recommended by the Commission is not granted by the Council or if the mutual assistance granted and the measures taken are insufficient, the Commission shall authorise the State which is in difficulties to take protective measures, the conditions and details of which the Commission shall determine.

Such authorisation may be revoked and such conditions and details may be changed by the Council acting by a qualified majority.

4. Subject to Article 122(6), this Article shall cease to apply from the beginning of the third stage.


***

Lisbon Treaty

Article 143 of the Treaty on the Functioning of the European Union (TFEU) takes over the substance of Article 119 TEC, but the updated wording more clearly presents the transitional character of the provision and that the provision concerns member states with a derogation.

Article 143 TFEU in the consolidated version of the Lisbon Treaty, OJ 9.5.2008 C 115/110-111:


Article 143 TFEU
(ex Article 119 TEC)

1. Where a Member State with a derogation is in difficulties or is seriously threatened with difficulties as regards its balance of payments either as a result of an overall disequilibrium in its balance of payments, or as a result of the type of currency at its disposal, and where such difficulties are liable in particular to jeopardise the functioning of the internal market or the implementation of the common commercial policy, the Commission shall immediately investigate the position of the State in question and the action which, making use of all the means at its disposal, that State has taken or may take in accordance with the provisions of the Treaties. The Commission shall state what measures it recommends the State concerned to take.

If the action taken by a Member State with a derogation and the measures suggested by the Commission do not prove sufficient to overcome the difficulties which have arisen or which threaten, the Commission shall, after consulting the Economic and Financial Committee, recommend to the Council the granting of mutual assistance and appropriate methods therefor.

The Commission shall keep the Council regularly informed of the situation and of how it is developing.

2. The Council shall grant such mutual assistance; it shall adopt directives or decisions laying down the conditions and details of such assistance, which may take such forms as:

(a) a concerted approach to or within any other international organisations to which Member States with a derogation may have recourse;

(b) measures needed to avoid deflection of trade where the Member State with a derogation which is in difficulties maintains or reintroduces quantitative restrictions against third countries;

(c) the granting of limited credits by other Member States, subject to their agreement.

3. If the mutual assistance recommended by the Commission is not granted by the Council or if the mutual assistance granted and the measures taken are insufficient, the Commission shall authorise the Member State with a derogation which is in difficulties to take protective measures, the conditions and details of which the Commission shall determine.

Such authorisation may be revoked and such conditions and details may be changed by the Council.


***

Balance of payments crisis

Protective measures

Current TEC

Article 119 TEC (and Article 143 TFEU) concerned serious balance of payments difficulties. The second level is represented by Article 120 TEC, which concerns even more serious imbalances, namely a sudden crisis, which may lead to (exceptional) protective measures:

Article 120 TEC in the latest consolidated version of the treaties, OJ 29.12.2006 C 321 E/97:
Page 97

Article 120 TEC

1. Where a sudden crisis in the balance of payments occurs and a decision within the meaning of Article 119(2) is not immediately taken, the Member State concerned may, as a precaution, take the necessary protective measures. Such measures must cause the least possible disturbance in the functioning of the common market and must not be wider in scope than is strictly necessary to remedy the sudden difficulties which have arisen.

2. The Commission and the other Member States shall be informed of such protective measures not later than when they enter into force. The Commission may recommend to the Council the granting of mutual assistance under Article 119.

3. After the Commission has delivered an opinion and the Committee referred to in Article 114 has been consulted, the Council may, acting by a qualified majority, decide that the State concerned shall amend, suspend or abolish the protective measures referred to above.

4. Subject to Article 122(6), this Article shall cease to apply from the beginning of the third
stage.

***

Lisbon Treaty

The Articles 143 and 144 TFEU are closely linked. When balance of payments problems occur suddenly and on a massive scale, Article 144 TFEU with potential unilateral protective measures kicks in.

Article 144 TFEU does not change the substance of Article 120 TEC. Disturbances in the functioning of the internal market must still be minimal and the scope of the measures restricted to the strictly necessary.

These exceptional measures quickly become European Union (European Community) matters. The Commission and the Council (Ecofin) can act to grant mutual assistance to a member state hit by a balance of payments crisis, but the EU institutions also review the measures ex post.

The Lisbon Treaty wording clarifies and updates the provision. Because of the beginning of third stage of economic and monetary union (EMU), Article 144 TFEU clearly expresses that this provision directly concerns the member states with a derogation (OJ 9.5.2008 C 115/111):




Article 144 TFEU
(ex Article 120 TEC)

1. Where a sudden crisis in the balance of payments occurs and a decision within the meaning of Article 143(2) is not immediately taken, a Member State with a derogation may, as a precaution, take the necessary protective measures. Such measures must cause the least possible disturbance in the functioning of the internal market and must not be wider in scope than is strictly necessary to remedy the sudden difficulties which have arisen.

2. The Commission and the other Member States shall be informed of such protective measures not later than when they enter into force. The Commission may recommend to the Council the granting of mutual assistance under Article 143.

3. After the Commission has delivered a recommendation and the Economic and Financial Committee has been consulted, the Council may decide that the Member State concerned shall amend, suspend or abolish the protective measures referred to above.

***

The existing and the proposed treaty provisions on responses to exceptional circumstances are clearly based on the idea of an evolving de facto solidarity between the member states of the European Union.

Serious difficulties and crises have to be faced together, although there are different provisions for the eurozone as a whole and the non-euro area member states (with a derogation), still forced to fight the financial tempests individually.


Ralf Grahn


P.S. A more detailed blog article on Article 119 TEC and Article 143 TFEU was meant to precede the above post, but it got stuck in technical problems, which have to be sorted out before publication.

EMU: Exchange rate policies as a common interest

This blog post is dedicated to our readers in Bulgaria, the Czech Republic, Denmark, Estonia, Latvia, Lithuania, Hungary, Poland, Romania, Slovakia, Sweden and the United Kingdom, the member states with a derogation within the context of economic and monetary union (EMU), but the national exchange-rate policies are defined as a matter of common interest to all EU member states (and citizens).

The EU Treaty of Lisbon updates the Treaty establishing the European Community (TEC), by taking into account the establishment of the eurozone and the experiences within the exchange-rate mechanism (ERM II).

***

Current treaty

The current Treaty establishing the European Community (TEC) sets out Transitional provisions in Chapter 4 of Title VII Economic and monetary policy, in Part Three Community policies (in the latest codified version of the treaties, Official Journal 29.12.2006 C 321 E/93─101)
Chapter 4 Transitional provisions contains Articles 116 to 124 TEC.

***

Exchange-rate policy as a common interest

Article 124 TEC (ex Article 109m) set out the exchange-rate policy of each member state as a matter of common interest before the beginning of the third stage of economic and monetary union (EMU), when the single currency, the euro, replaced the national exchange-rate policies of the member states which adopted the euro. Article 124 TEC continues to apply ‘by analogy’ to the member states with a derogation, i.e. outside the eurozone:

Article 124 TEC

1. Until the beginning of the third stage, each Member State shall treat its exchange-rate policy as a matter of common interest. In so doing, Member States shall take account of the experience acquired in cooperation within the framework of the European Monetary System (EMS) and in developing the ecu, and shall respect existing powers in this field.

2. From the beginning of the third stage and for as long as a Member State has a derogation, paragraph 1 shall apply by analogy to the exchange-rate policy of that Member State.


***

Draft Constitution

The euro currency had been introduced, and the euro banknotes and coins were in circulation, when the European Convention deliberated institutional reform of the European Union. It is hardly surprising that the Convention proposed a reworked section with the aim to simplify and to clarify the transitional provisions.

Section 4 Transitional provisions comprises Articles III-91 to III-96 of the draft Constitution (OJ 18.7.2003 C 169/45─46).

Article III-94 of the draft Constitution updated Article 124 TEC to take account of the introduction of the euro, which had left only three of the fifteen existing member states outside the euro area (Denmark, the United Kingdom and Sweden), but with twelve new member states set to join the European Union in the so called big bang enlargement:

SECTION 4
Transitional provisions

Article III-94 Draft Constitution

Each Member State with a derogation shall treat its exchange-rate policy as a matter of common interest. In so doing, it shall take account of the experience acquired in cooperation within the framework of the exchange-rate mechanism.


***

Finland

The Finnish government reported on the results of the European Convention in Valtioneuvoston selonteko Eduskunnalle konventin tuloksista ja valmistautumisesta hallitusten väliseen konferenssiin (VNS 2/2003 vp). Finland had adopted the euro. A section discussed economic and monetary policy (8.5 Talous. ja rahapolitiikka) on pages 65 to 67, but I found nothing specific about Article III-94 of the draft Constitution.

***

Sweden

Ahead of the intergovernmental conference, the Swedish government presented its views in a memorandum, Regeringens skrivelse 2003/04:13 Europeiska konventet om EU:s framtid (2 October 2003).

Sweden had not negotiated an opt-out from the treaty obligation to introduce the euro currency, but still the government had arranged a referendum on the adoption. The negative referendum result, which left Sweden in legal limbo, was fresh.

If the updated Article III-94 of the draft Constitution had little direct significance for Finland, Sweden on the contrary retained a national exchange-rate policy and a treatment of the ‘common interest’ would not have been out of place.

In spite of this, I found no specific mention of draft Constitution Article III-94 in the memorandum.

***

de Poncins


Étienne de Poncins presented the text of Article III-94 in Vers une Constitution européenne (Éditions 10/18, 2003), page 315, without comment.

***

Common interest?

Not one comment from the three sources checked; is this an indication of the significance of matters defined as common interests?

***

Constitutional Treaty

The transitional EMU provisions of the intergovernmental conference (IGC 2004) are found in Section 5 Transitional provisions, comprising Articles III-197 to 202 of the Treaty establishing a Constitution for Europe (OJ 16.12.2004 C 310/86─90).

The exchange-rate policies as matters of common interest were mentioned in Article III-200:

Article III-200 Constitution

Each Member State with a derogation shall treat its exchange-rate policy as a matter of common interest. In so doing, it shall take account of the experience acquired in cooperation within the framework of the exchange-rate mechanism.


***

Let us see it our standard references are more informative concerning the signed Constitutional Treaty, than they were with regard to the draft Constitution.

***

Sweden

The government of Sweden, still outside the eurozone as a member state with a derogation, offered a short and bland description of the aims of economic and monetary union (EMU) in the draft ratification bill, Lagrådsremiss Fördraget om upprättande av en konstitution för Europa (2 June 2005), page 171:

.
”Den ekonomiska och monetära unionen (EMU) är ett samarbete inom EU som syftar till att samordna medlemsländernas ekonomiska politik och att införa en gemensam valuta. EMU har genomförts i tre etapper. Den sista etappen inleddes 1999 och innebär en fullbordad valutaunion med gemensam centralbank (Europeiska centralbanken) samt gemensam valuta och penningpolitik. En förutsättning för valutaunionen har varit och är att de deltagande ländernas ekonomier befinner sig på ungefär samma nivå. Ett antal ekonomiska krav som ett land måste uppfylla för att få delta i valutaunionen har därför ställts upp, de s.k. konvergenskriterierna. För att säkerställa sunda offentliga finanser inom unionen har därför EU inrättat den s.k. stabilitets- och tillväxtpakten.”

The Swedish government did not mention Article III-200 of the Constitution specifically, although Sweden through its national central bank (Sveriges Riksbank) has a national exchange-rate policy, defined as a common interest for the European Union as a whole.

***

Finland

In Finland, the government’s ratification bill, Hallituksen esitys Eduskunnalle Euroopan perustuslaista tehdyn sopimuksen hyväksymisestä ja laiksi sen lainsäädännön alaan kuuluvien määräysten voimaansaattamisesta (HE 67/2006 vp), mentioned Article III-200 of the Constitution on page 185. The government remarked that Article III-200 corresponds with Article 124 TEC without substantial change:
”III-200 artikla, joka koskee valuuttakurssipolitiikkaa niiden maiden osalta, joissa euroa ei ole otettu käyttöön, vastaa asiasisällöltään SEY 124 artiklaa.”


***


Original Lisbon Treaty

In Article 2, point 104, of the original Treaty of Lisbon (ToL) the intergovernmental conference (IGC 2007) updated Article 124 TEC by adopting the Convention and Constitution proposals, but the amendments were inserted in the ‘usual’, i.e. unreadable manner adopted by the IGC 2007 (OJ 17.12.2007 C 306/79):

104) An Article 118b shall be inserted, with the wording of Article 124(1); it shall be amended as follows:

(a) the words ‘Until the beginning of the third stage, each Member State shall treat’ shall be replaced by ‘Each Member State with a derogation shall treat’;

(b) the words ‘of the European Monetary System (EMS) and in developing the ecu, and shall respect existing powers in this field’ shall be replaced by ‘of the exchange-rate mechanism.’.


***

Renumbering

The Treaty on the Functioning of the European Union (TFEU) table of equivalences confirms that the new Article 118b TFEU (ToL) in the original Treaty of Lisbon was to be renumbered Article 142 TFEU in the consolidated version, under the title ‘Economic and monetary policy’, renumbered Title VIII, and in the renumbered Chapter 5 ‘Transitional provisions’ (OJ 17.12.2007 C 306/215).

(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

A readable Article 142 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 115/110:

Part Three Union policies and internal actions

Title VIII Economic and monetary policy

Chapter 5 Transitional provisions

Article 142 TFEU
(ex Article 124(1) TEC)

Each Member State with a derogation shall treat its exchange-rate policy as a matter of common interest. In so doing, Member States shall take account of the experience acquired in cooperation within the framework of the exchange-rate mechanism.

***

We notice that Article 142 TFEU repeats the wording of Article III-94 of the draft Constitution and Article III-200 of the Constitutional Treaty almost exactly. Only ‘it’ remains ‘Member States’ as in the current Article 124(1) TEC, second sentence.

***

Sweden

Even if Sweden is one of the EU member states with a derogation, the most artificial one at that, I found nothing about Article 118b TFEU (ToL) in the Lisbon Treaty ratification bill of the Swedish government, Regeringens proposition 2007/08:168 Lissabonfördraget (3 July 2008).

Is common interest of no particular interest?

***

Priollaud and Siritzky

In ‘Le traité de Lisbonne ; Commentaire, article par article, des nouveaux traités européens (TUE et TFUE)’ (La Documentation Française, 2008), François-Xavier Priollaud and David Siritzky present the Lisbon Treaty provisions of Chapter 5 (Dispositions transitoires) on page 260 to 261. Their characterization of Articles 141 to 144 TFEU is succinct:

« Les art. 141 à 144 TFUE comprennent les dispositions applicables aux États membres faisant l’objet d’une dérogation, sans changement notable. »

***

United Kingdom FCO

‘A comparative table of the current EC and EU treaties as amended by the Treaty of Lisbon (Cm 7311, 21 January 2008) offers the following comment on Article 142 TFEU (on page 13):

“Draws on and updates Article 124(1) TEC.”

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UK House of Commons Library

The UK House of Commons Library presented the amending treaty in ‘The Treaty of Lisbon: amendments to the Treaty establishing the European Communities’ (Research paper 07/86, 6 December 2007. There was a short explanation of Article 118b TFEU (ToL), on page 64:

“Article 118(b) (Constitution Article III-200) largely corresponds with present Article 124(1) on the exchange rate policy of Member States with a derogation.”


***

Common interest

Naturally, materials on amending treaties, such as the Treaty of Lisbon, tend to concentrate on the substantial changes. Still, it is notable that ‘common interest’ seems to raise no interest at all among our government and parliament sources.

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ERM II

For a closer look, you have to turn to the European Central Bank and the national central banks. Here are a few introductory pointers:

Exchange-rate cooperation and the exchange-rate mechanism (ERM II) are outlined in the Agreement of 16 March 2006 between the European Central Bank and the national central banks of the Member States outside the euro area laying down the operating procedures for an exchange rate mechanism in stage three of Economic and Monetary Union (2006/C 73/08), published in the Official Journal of the European Union (OJ) 25.3.2006 C 73/21, since amended.
The ERM II Agreement contains provisions concerning the national central banks of all the non-euro area member states, but especially with regard to the countries participating in the ERM II.

The amending Agreement of 21 December 2006 (Slovenia out of ERM II when adopting the euro, Bulgaria and Romania in) was published in the OJ 20.1.2007 C 14/6 and the amending Agreement of 14 December 2007 (Cyprus and Malta out of ERM II on joining the euro) in the OJ 29.12.2007 C 319/17.

A corresponding amendment concerning Slovakia is to be expected.

For an accessible overview, you can go to the Scadplus web page Exchange rate mechanism (ERM II) between the euro and participating currencies (last update 22 March 2007):

http://europa.eu/scadplus/leg/en/lvb/l25082.htm




Ralf Grahn