EU and Switzerland: Bilateral treaties and challenges

Since Switzerland is outside the European Union (EU) as well as the European Economic Area (EEA), the relations have been developed mainly on the basis of bilateral agreements. The Treaties Office of the European Commission’s DG External Relations offers access to the existing EU-Switzerland treaties, bilateral and multilateral, 175 in all.




DG Trade presents an overview of trade with Switzerland, noting that:

Switzerland's main trading partner is the EU. On the other hand, Switzerland is currently the fourth largest trading partner of the EU. Trade figures in 2008 show €80 billion in imports and €97.6 billion in exports. In terms of imports, Switzerland was the EU's 5th most important trading partner in 2008, after the US, China, Russia and Norway. Regarding exports, Switzerland was the 3rd after the US and Russia in the same period.

The presentation contains on overview of how the agreements have developed, including the Bilateral I package (in force from June 2002) and the Bilateral II package (signed in October 2004).




Among the 130 Commission Delegations and Offices, the European Union has a Delegation in Berne, Switzerland (for Liechtenstein as well). The New Year’s greeting (available in German, French and Italian) by the Head of Delegation Michael Reiterer is refreshingly free from empty phrases. Instead Reiterer outlines the macro level challenges ahead and digs into new areas of cooperation as well as unresolved issues on the table, such as tax fraud and evasion.




More information about the history of cooperation and ongoing issues is offered on the web page (here the German version) Die EU und die Schweiz and further topical links:


Agrarfreihandel


On trade in agricultural goods:

Ein allfälliges Abkommen im Agrar- und Lebensmittelbereich (FHAL) liegt im beiderseitigen Interesse der EU und der Schweiz.


Beihilfendiskussion


State aid:

Die Europäische Kommission hat im Februar 2007 eine Beihilfenentscheidung getroffen. Die EU hat eine Beihilfenentscheidung getroffen, was nicht ausreichend zur Kenntnis genommen wird, weshalb auch von "Steuerstreit" gesprochen wird.


Elektrizität


Electricity:

Ein Elektrizitätsabkommen zur Sicherung der Energieversorgung, zur Regelung des Transits und zur Teilnahme der Schweiz am europäischen Elekrtizitätsbinnenmarkt liegt im beidseitigen Interesse der EU und der Schweiz.


Erweiterungsbeitrag


Participation in cohesion policy costs:

Die Kohäsionspolitik der Europäischen Union hat zum Ziel, die Unterschiede im wirtschaftlichen Entwicklungsstand der europäischen Regionen zu verringern. Damit soll der wirtschaftliche und soziale Zusammenhalt innerhalb der EU verstärkt werden. Die Schweiz profitiert dank ihrer bilateralen Abkommen, welche sie mit der EU abgeschlossen hat, direkt von jeder Erweiterung der Union, weshalb die EU die Schweizer Behörden einlud, einen Beitrag an die europäische Kohäsion zu leisten.


Personenfreizügigkeit


Free movement of persons:

Personenfreizügigkeit zwischen der Schweiz und der EU.


Schengen


Cooperation in the Schengen area:

Im Rahmen der Schengen Zusammenarbeit wird der Reiseverkehr erleichtert, indem die systematischen Personenkontrollen an den gemeinsamen Grenzen zwischen den Schengen-Staaten aufgehoben werden.


Zinsbesteuerung


Taxation of savings income:

Die Richtlinie regelt die Besteuerung von Zinserträgen, welche an natürliche Personen in einem EU-Mitgliedstaat ausserhalb ihres eigenen Wohnsitzstaates gezahlt werden.


Zollsicherheit


Customs security cooperation:

Aus Sicherheitsgründen sind Wirtschaftsteilnehmer verpflichtet, die Zollbehörden im voraus über Waren zu informieren, die in das Zollgebiet der EU ein- oder aus diesem ausgeführt werden. Das betrifft zu einem grossen Teil auch die Schweiz.






Ralf Grahn








P.S. A federal system is democratic and aims at resolving issues at the right level. The Federal Union Blog argues for federalist solutions in Britain, Europe and the world.

The Federal Union Blog is listed among 522 great Euroblogs (at the latest count) on growing multilingual Bloggingportal.eu, your useful one-stop-shop for fact, opinion and gossip on European affairs, i.a. politics, more than thirty policy areas, communication, economics, finance, business, civil society and law.

At the same time Euroblogs are an agreeable way to brush up one’s skills in foreign languages.

If you are interested in the EU or the euroblogosphere, you can also subscribe to the RSS feed for new blog posts appearing on Bloggingportal.eu.

By the way, I also discuss European issues, including the relations between the EU and Switzerland, in Finnish on Eurooppaoikeus and in Swedish on Grahnblawg.

European Union: A short and readable basic law?

Is a short and readable basic law for the European Union pure fantasy, or could it become a reality?

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Piecemeal amendments and minute compromises between member states under veto threat have resulted in detailed treaties. They are unsystematic, hard to read and contain redundant material.

The draft Constitution by the European Convention and the Constitutional Treaty by the intergovernmental conference made an attempt at reform of the institutions, but they produced updated and more systematic texts as well.

The Treaty of Lisbon meant a backward step, but many of the substantial and systematic improvements were preserved. In the end, the Lisbon Treaty is more readable than the existing treaties.


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Structure

The Lisbon Treaty is structured in a more logical way than the current treaties. Basic provisions are situated in the amended Treaty on European Union (TEU), while more technical details and policy areas are found in the Treaty on the Functioning of the European Union (TFEU), which replaces the Treaty establishing the European Community (TEC).

Clarity is added by abolishing the distinction between the European Union and the European Community.


But the latest intergovernmental conference (IGC 2007) baulked at placing the whole of external action into the TFEU. Not only did it preserve the intergovernmental character of the common foreign and security policy (CFSP) and the common security and defence policy (CSDP); the provisions remained in the TEU, together with general provisions on the European Union’s external action.

The substantial limitations mean that, despite incremental improvements, the European Union will remain unable to speak with one voice in the world.

But here we are more interested in the supposition that the European Union could have a short and readable basic law.


***

Technically possible

Leaving the Table of Contents outside, and shifting the external action including the CFSP and the CSDP to a second order document would leave us with us with a basic document of less than twenty pages.

Even as it is, the TEU text proper is only about thirty pages long.

As a literary document the TEU is nowhere near the level of the US Constitutions, but tolerably readable if ridded from the references to the TFEU and Protocols.

If the US Constitution could be re-written today, including the amendments, it would get rid of redundant provisions, and it would be even more elegant the existing one.

***


Political difficulties

The main problem is not technical, but political. The European Union is based on international treaties between member states, not a union by the people.

About 200 pages of treaty text and about 160 pages of protocols and declarations follow from the member states’ desire to control events in minute detail.

This is the old covenant, European Union 1.0 based on diplomats and technocrats.

The Lisbon Treaty is version EU 1.1 with added powers for the European Parliament and other reforms.

To demand, as Libertas does, a strong TREATY, but short and readable, is not realistic. Where should the detailed provisions be placed? Would the member states suddenly let go their grip?

As long as the basic documents are international treaties between member states, I see no inherent reason to accept the calls for referendums. (Ireland, due to a domestic constitutional interpretation, happens to be the odd man out.)

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Solution

If the power is vested in the people, the European Union could have a strong, short and readable basic document.

It would not be a treaty, but a basic law or constitution. This would be the new covenant, EU 2.0.

The shift from the old covenant to the new – from EU 1.0 (or 1.1) to EU 2.0 – would leave the detailed legislation to be approved by the European Parliament and the policies to be pursued by an accountable government.

The federation’s Constitution could be short and clear for all to understand.

The move from EU 1.0 (or 1.x) to EU 2.0 would be groundbreaking. Therefore, as a union of people, the new European Union would need the consent of the governed.

In my view, the willing electorates would form the new union, and the states with negative referendum results would stay outside the new union.

But afterwards the Constitution could be amended by the Parliament, probably by a qualified majority. Representative democracy is the norm; referendums the exception.


Ralf Grahn

European elections: Libertas disparages representative democracy

Libertas.eu has expanded its web presence during the last days. Some of the posts offer crude indications of where Libertas stands on political issues, although the emphasis is more on doom and gloom than on useful information for informed voters. Here is a brief descriptive list of a few themes:

• Public access to documents
• Lech Walesa’s speech to the Convention in Rome, which despite the halting English translation seems to exhort Libertas (Declan Ganley) to recruit more judiciously
• Apprehensions ahead of the European Parliamnet’s vote on the Telecoms package
• Vituperative comments about the European Parliament’s debates on preparatory issues for the possible entry into force of the Treaty of Lisbon (by now approved by the parliaments of 26 member states)
• Criticism against the Czech Senate for its approval of the Lisbon Treaty by a qualified majority
• A few new critical blog entries and links to web sites of national Libertas chapters


My impression is that Libertas’ marketing has become active and professional, although the contents can be described as hyperbolic populism.

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Plebiscite democracy

In the footsteps of Benito Mussolini, Adolf Hitler and Hugo Chavez, Libertas has embraced plebiscite democracy as its distinct plank with regard to the European Union.

The fourth “core principle” of Libertas is:

“Have your say: Every country must hold a referendum on any Constitution.”

The petition or pledge Libertas made such a show of signing in Rome and wants citizens to sign, actually goes further:

“We, in the name of a stronger Europe, pledge that no new European treaty can be implemented without a referendum.”

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Additional information

Some 22 days from the beginning of the European elections, we are still offered the same text on the Policies page: The Libertas programme for a better Europe will be published on this site in the coming weeks.

But there is actually some additional information about the fourth core principle, with regard to the Treaty of Lisbon:

“Libertas wants a strong Treaty: The Lisbon Treaty would ensure that those who govern Europe are even less accountable to the people than they are now. Europe needs a strong treaty. A treaty that is clear to Europe’s people and that is supported at the ballot box by Europe’s people. A short and readable basic treaty, no longer than 25 pages. A treaty that motivates people to read it, understand it and vote on it.

The Lisbon Treaty is bad for the people of Europe

The Lisbon Treaty - both in its content and in how its masters planned to enforce it – would do nothing to bring the European Union closer to its people. Despite earlier promises of referenda from many country leaders, Ireland was the only Member State that asked its people to reject or accept the Treaty. Libertas led the ‘no’ campaign in Ireland. With an unexpectedly high voter turnout, the Irish people rejected the Lisbon Treaty. According to European Union law, this means that the Treaty will not come into power.

The EU does not respect democracy

In an appalling rejection of the democratic choice of the people, the EU has refused to accept that the Lisbon Treaty is dead. Instead the Irish government, encouraged by elites in Brussels and throughout European capitals, want to ask the people to vote again. And this time, they want the people to accept what will be bad for them and bad for the future of the European Union.”


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What does it mean?

Despite the added explanations, the motives behind Libertas’ demands remain unclear, the resoning seems flawed and there is a need for more exact answers concerning the implications.

Here are some of my doubts and questions waiting for answers:

Even if the Lisbon Treaty resembles a repair manual more than an arousing political manifesto, one of its strong points is that it strengthens the role of the directly elected European Parliament and hence the democratic legitimacy of much EU lawmaking. (Incidentally, the amending treaty also tidies up the existing treaties; the text is more systematic and readable than the current one.)

A rejection of the Lisbon Treaty means acceptance of the Treaty of Nice. This could hardly be called an accomplishment.

The Treaty of Lisbon has been agreed between 27 nationally accountable governments and approved by the elected parliaments in 26 member states, representing about 485 million Europeans. Representative democracy is the norm; the Irish referendum and its outcome are exceptions.

The Constitutional Treaty was and the Lisbon Treaty is about incremental change, far from qualitative leaps to a “federal superstate”. The European Union remains a treaty based organisation, despite supranational elements.

A European Constitution could be short and readable, if written like the federal US Constitution, which includes the powers to amend the Constitution. If and when a number of European countries agree to establish a new union, based on its citizens, it would be fair to arrange a referendum on the transition to this new stage. The new union would require a majority of the votes, and it would enter into force between the states where it finds the support of the voters.

The new European Union would not be based on a treaty, but on a proper Constitution. It would not be held hostage to a minuscule proportion of voters. The new union would function according to the principle of representative democracy.

Libertas is far from clear. Its fourth core principle speaks about a referendum on a Constitution. The pledge seems to extend this requirement to any treaty and every single amendment.

Does Libertas want to retain the veto powers too? In that case it is hard to see Libertas as a progressive force for the strong and successful Europe chairman Ganley is fond of talking about.


Ralf Grahn

EU Lisbon Treaty: International agreements

We take a look at how the EU Treaty of Lisbon codifies existing case law by the Court of Justice of the European Communities (ECJ) and clarifies the competences with regard to international agreements.


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Original Lisbon Treaty

Article 2, point 170 of the original Lisbon Treaty adds a Title V International agreements to Part Five External action by the Union, and point 171 adds a new Article 188l (OJEU 17.12.2007 C 306/96–97):




INTERNATIONAL AGREEMENTS

170) A Title V ‘INTERNATIONAL AGREEMENTS’ shall be inserted after Article 188 K.

171) The following Article 188 L shall be inserted:

‘Article 188 L

1. The Union may conclude an agreement with one or more third countries or international organisations where the Treaties so provide or where the conclusion of an agreement is necessary in order to achieve, within the framework of the Union's policies, one of the objectives referred to in the Treaties, or is provided for in a legally binding Union act or is likely to affect common rules or alter their scope.

2. Agreements concluded by the Union are binding upon the institutions of the Union and on its Member States.’.


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Consolidated Lisbon Treaty

Article 188l (ToL) is renumbered Article 216 in the Treaty on the Functioning of the European Union (TFEU), published in the consolidated version of the Lisbon Treaty in the Official Journal of the European Union (OJEU) 9.5.2008 C 115/144:


TITLE V
INTERNATIONAL AGREEMENTS

Article 216 TFEU

1. The Union may conclude an agreement with one or more third countries or international organisations where the Treaties so provide or where the conclusion of an agreement is necessary in order to achieve, within the framework of the Union's policies, one of the objectives referred to in the Treaties, or is provided for in a legally binding Union act or is likely to affect common rules or alter their scope.

2. Agreements concluded by the Union are binding upon the institutions of the Union and on its Member States.


***

Comment

Article 216 TFEU general in scope. When the separate European Community and the European Union are merged into one, one of the complexities is resolved.

The provision refers to the explicit powers (‘where the Treaties so provide’) as well as to the implicit powers as they have been laid down by the ECJ.

The latter part of the first sentence echoes Article 3(2) TFEU on exclusive competence for the conclusion of international agreements.


***

Further reading


For a fuller discussion of legal questions concerning EU external powers you can turn to one of the following publications:

Chapter 6 EU international relations law, in Paul Craig and Gráinne de Búrca: EU Law – Text, Cases, and Materials (Fourth edition, 2008; Oxford University Press).

Marise Cremona: External Relations of the EU and the Member States: Competence, Mixed Agreements, International Responsibility, and Effects of International Law (EUI Working Papers Law No 2006/22)

Marius Vahl: International agreements in EU neighbourhood policy (Sieps report 2006:10)



Ralf Grahn

EU Law: International agreements today

The Lisbon Treaty improves the presentation of the European Union’s (European Community’s) powers to conclude international agreements (treaties), but first we take a look at the existing treaties.



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Current treaties

Community pillar

The current divide between the European Community, with legal personality (Article 281 TEC), and the European Union, without, complicates the conclusion of international agreements and it is reflected in the existing main treaty provisions. (Cf. the latest consolidated version of the treaties, published OJEU 29.12.2006 C 321 E.)

Article 300 of the Treaty establishing the European Community (TEC) does not present a comprehensive view of the treaty making powers of the EC, but refers generally to the situations “Where this Treaty provides for the conclusion of agreements between the Community and one or more States or international organisations, …”. It then sets out the procedures for concluding treaties.


In addition, there are agreements with a more general scope and provisions related to a specific policy area or even a determined issue:


Article 310 TEC provides for the conclusion of association agreements with states or international organisations.

In the area of the common commercial policy (including customs tariffs and trade), the European Community exercises exclusive competence, with Article 133 TEC providing for international agreements to be concluded.

Article 111 TEC concerns the conclusion of formal agreements on an exchange-rate system for the ecu (nowadays euro) in relation to non-Community currencies.

Article 174 TEC concerns international agreements in the environmental area.

International agreements in the area of development cooperation are provided for by Article 180 TEC.

Agreements within the sphere of economic, financial and technical cooperation with third countries or international organisations are foreseen by Article 181a TEC, which also mentions the association agreements and the agreements to be concluded with membership candidates.

The flexibility clause Article 308 TEC has been used to fill voids.


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Second and third pillar


Article 24 of the Treaty on European Union (TEU) refers to the procedure to conclude international agreements in implementation of the common foreign and security policy (CFSP; Title V) and police and judicial cooperation in criminal matters (Title VI; also Article 38 TEU).


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Accession agreements

Accession treaties are an example of intergovernmental agreements, concluded between the acceding state and the existing member states (Article 50 TEU).


***

The current patchwork of treaty provisions is in need of clarification and reform. Operating on the international scene is complicated by the EC and EU split. The limits of EC and member state powers are far from clear in the light of the treaties.

It has fallen on the ECJ to give set out the respective external competences.


Ralf Grahn

EU cooperation with third countries

The European Community (European Union) cooperates with third countries in a variety of areas, which has resulted in a plethora of international agreements.

The EU Treaty of Lisbon clarifies the provision on economic, financial and technical cooperation and strengthens the role of the European Parliament to some extent.

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Current treaty

Since the Treaty of Nice entered into force, Article 181a of the Treaty establishing the European Community (TEC) has provided for cooperation with countries outside the European Union, third countries other than developing countries (catered for in Title XX).

The cooperation is described in general terms as economic, financial and technical.

The general objectives of democracy, the rule of law, human rights and fundamental freedoms are mentioned.


Since the Treaty of Nice the Council is generally able to adopt measures by qualified majority voting (QMV), but the European Parliament is only consulted.


Unanimity is required for the association agreements with states or international organisations and for the agreements to be concluded with the states on the last laps for membership as candidates for accession to the Union.

The European Community can conclude international agreements, but the EC and the member states have parallel powers.

Here is Article 181a TEC, as published in the latest consolidated version of the treaties, OJEU 29.12.2006 C 321 E/127:


TITLE XXI
ECONOMIC, FINANCIAL AND TECHNICAL COOPERATION WITH THIRD COUNTRIES

Article 181a TEC

1. Without prejudice to the other provisions of this Treaty, and in particular those of Title XX, the Community shall carry out, within its spheres of competence, economic, financial and technical cooperation measures with third countries. Such measures shall be complementary to those carried out by the Member States and consistent with the development policy of the Community.

Community policy in this area shall contribute to the general objective of developing and consolidating democracy and the rule of law, and to the objective of respecting human rights and fundamental freedoms.

2. The Council, acting by a qualified majority on a proposal from the Commission and after consulting the European Parliament, shall adopt the measures necessary for the implementation of paragraph 1. The Council shall act unanimously for the association agreements referred to in Article 310 and for the agreements to be concluded with the States which are candidates for accession to the Union.

3. Within their respective spheres of competence, the Community and the Member States shall cooperate with third countries and the competent international organisations. The arrangements for Community cooperation may be the subject of agreements between the Community and the third parties concerned, which shall be negotiated and concluded in accordance with Article 300.

The first subparagraph shall be without prejudice to the Member States' competence to negotiate in international bodies and to conclude international agreements.


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Original Lisbon Treaty

Article 2, point 165 of the original Treaty of Lisbon (ToL) inserted a new Chapter 2 on economic, financial and technical cooperation with third countries, and Article 2, point 166 amended Article 181a, which became Article 188h, OJEU 17.12.2007 C 306/94–95:

ECONOMIC, FINANCIAL AND TECHNICAL COOPERATION WITH THIRD COUNTRIES

165) A Chapter 2 ‘ECONOMIC, FINANCIAL AND TECHNICAL COOPERATION WITH THIRD COUNTRIES’ shall be inserted, taking over the heading of Title XXI of Part 3.

166) An Article 188 H shall be inserted, with the wording of Article 181a; it shall be amended as follows:

(a) paragraph 1 shall be replaced by the following:

‘1. Without prejudice to the other provisions of the Treaties, and in particular Articles 188 D to 188 G, the Union shall carry out economic, financial and technical cooperation measures, including assistance, in particular financial assistance, with third countries other than developing countries. Such measures shall be consistent with the development policy of the Union and shall be carried out within the framework of the principles and objectives of its external action. The Union's operations and those of the Member States shall complement and reinforce each other.’;

(b) paragraph 2 shall be replaced by the following:

‘2. The European Parliament and the Council, acting in accordance with the ordinary legislative procedure, shall adopt the measures necessary for the implementation of paragraph 1.’;

(c) at the end of the second sentence of the first subparagraph of paragraph 3, the words ‘, which shall be negotiated and concluded in accordance with Article 300’ shall be deleted.


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Consolidated Lisbon Treaty

With a feeling of relief we turn to the consolidated version of the Treaty on the Functioning of the European Union (TFEU), where Article 188h has become Article 212 and been given a readable form, OJEU 9.5.2008 C 115/142:

CHAPTER 2
ECONOMIC, FINANCIAL AND TECHNICAL COOPERATION WITH THIRD COUNTRIES

Article 212 TFEU
(ex Article 181a TEC)

1. Without prejudice to the other provisions of the Treaties, and in particular Articles 208 to 211, the Union shall carry out economic, financial and technical cooperation measures, including assistance, in particular financial assistance, with third countries other than developing countries. Such measures shall be consistent with the development policy of the Union and shall be carried out within the framework of the principles and objectives of its external action. The Union's operations and those of the Member States shall complement and reinforce each other.

2. The European Parliament and the Council, acting in accordance with the ordinary legislative procedure, shall adopt the measures necessary for the implementation of paragraph 1.

3. Within their respective spheres of competence, the Union and the Member States shall cooperate with third countries and the competent international organisations. The arrangements for Union cooperation may be the subject of agreements between the Union and the third parties concerned.

The first subparagraph shall be without prejudice to the Member States' competence to negotiate in international bodies and to conclude international agreements.


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Lisbon Treaty changes

The Treaty of Lisbon clarifies the meaning of ‘third countries’ in this context by saying that they are other than developing countries, to which the provisions on development cooperation apply. These policy areas still have to be consistent.

The relations between the European Union and the member states are given a more positive slant. They shall complement and reinforce each other.

The second TEC subparagraph of paragraph 1 on democracy, the rule of law, human rights and fundamental freedoms has been dropped and replaced by the reference to the framework of the principles and objectives of the EU’s external action (Chapter 1 of Title V of the Treaty on European Union; Articles 21 and 22 TEU).


The role of the European Parliament is strengthened by the introduction of the ordinary legislative procedure (co-decision) replacing consultation.

There is no mention of the separate (unanimous) procedure concerning the association agreements or the agreements to be concluded with the States which are candidates for accession to the Union, but these are provided for in Articles 207 and 208 TFEU (with consent of the European Parliament for association agreements and possibly on other grounds).

The wording of the scope – economic, financial and technical cooperation – remains the same, but if there is a special legal base for international cooperation measures this is applied (for instance trade).


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International agreements

Normally the international agreements would be called (and are) treaties. But presumably to make the distinction clearer, the TEU and the TEC reserve the term Treaty for themselves and refer to other treaties as international agreements. Hence, on Eur-Lex you find the page International agreements, which allows you to look under classification headings and subject matter:


http://eur-lex.europa.eu/en/accords/accords.htm



Ralf Grahn

Constitutions: USA versus Europe

The Philadelphia Convention drafted the short and readable Constitution of the United States of America (1787), with little in the way of democratic (Britain, Holland) and republican precedents to follow, and their ability to construct a federal system was revolutionary.

Still, by getting it right the first time and by using broad brush-strokes, the Convention left little to be tinkered with later, although the Bill of Rights was added almost immediately to ensure ratification, and the abolition of slavery, election procedures and civil rights have caused some amendments during more than 200 years of existence.

In spite of being almost perfect at birth, the US Constitution avoided the dangers of petrification by providing for future amendments. Changing the Constitution was made difficult, but not impossible, as laid out in Article V:

The Congress, whenever two-thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two-thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as part of this Constitution, when ratified by the Legislatures of three-fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; ---

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The European experience has been different: The texts have been long and unwieldy. Detailed provisions and laborious compromises have been enshrined at the ‘constitutional’ level. Both treaty negotiations and later ratifications have required unanimity.

All this has led to the constant need for treaty revision in order to avoid ossification.

The Irish referendum has, once again, shown how feeble the general interest is in the European context.

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In an earlier post we saw that the Treaty of Lisbon has to be ratified by 27 member states to enter into force in its present form.

The preceding phase, making the needed amendments, is another source of relative impotence. It does not need a special provision, because it follows from the application of principles of traditional international law and from the requirement that each participating government has to be willing to propose and able to get ratification from its national parliament (as a rule).

The current rule on treaty change is Article 48 of the Treaty on European Union:

Article 48 TEU

The government of any Member State or the Commission may submit to the Council proposals for the amendment of the Treaties on which the Union is founded.

If the Council, after consulting the European Parliament and, where appropriate, the Commission, delivers an opinion in favour of calling a conference of representatives of the governments of the Member States, the conference shall be convened by the President of the Council for the purpose of determining by common accord the amendments to be made to those Treaties. The European Central Bank shall also be consulted in the case of institutional changes in the monetary area.

The amendments shall enter into force after being ratified by all the Member States in accordance with their respective constitutional requirements.

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Constant tinkering, frequent intergovernmental conferences, proposed half-measures, protracted ratifications, unreadable texts, alienated electorates …

If the European Union is in a hole, it is one it has dug itself.


Ralf Grahn

EU: TFEU Preamble

Why have the governments and parliaments of first six, now 27, nation states fallen for the siren call of ‘ever closer union’?

The first effort to present the general causes of and the historic reasons for European integration are found in the Preamble to the Treaty on the Functioning of the European Union (TFEU).

Even in its latest version the Preamble is almost frozen in time.

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After the horizontal amendments, the intergovernmental conference (IGC 2007) advanced to specific amendments (OJ 17.12.2007 C 306/44):

B. Specific amendments

Preamble

10) In the second recital, the word ‘countries’ shall be replaced by ‘States’ and in the last recital, the words ‘HAVE DECIDED to create a EUROPEAN COMMUNITY and to this end have designated’ shall be replaced by ‘and to this end HAVE DESIGNATED’.

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The Preamble to the Treaty establishing the European Community (TEC), to become the Treaty on the Functioning of the European Union (TFEU), is almost a museum exhibit of European integration (in the latest consolidated version of the TEC, OJ 29.12.2006 C 321 E/43).

The piety shown to the Preamble since the establishment of the European Economic Community (EEC) is illustrated by the fact that only the last substantial recital on knowledge and education has been added during 50 years.

The European Community has since enlarged to 27 members, but the six founding member states are still at the beginning of the Preamble.

The European Community dissolves into the European Union, but true to tradition, the IGC 2007 makes only the slightest editorial adaptations to the text.

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After the necessary adaptations, the consolidated version of Preamble of the TFEU should begin like this in the Treaty of Lisbon version:

HIS MAJESTY THE KING OF THE BELGIANS, THE PRESIDENT OF THE FEDERAL REPUBLIC OF GERMANY, THE PRESIDENT OF THE FRENCH REPUBLIC, THE PRESIDENT OF THE ITALIAN REPUBLIC, HER ROYAL HIGHNESS THE GRAND DUCHESS OF LUXEMBOURG, HER MAJESTY THE QUEEN OF THE NETHERLANDS,

DETERMINED to lay the foundations of an ever closer union among the peoples of Europe,

RESOLVED to ensure the economic and social progress of their States by common action to eliminate the barriers which divide Europe,

AFFIRMING as the essential objective of their efforts the constant improvements of the living and working conditions of their peoples,

RECOGNISING that the removal of existing obstacles calls for concerted action in order to guarantee steady expansion, balanced trade and fair competition,

ANXIOUS to strengthen the unity of their economies and to ensure their harmonious development by reducing the differences existing between the various regions and the backwardness of the less favoured regions,

DESIRING to contribute, by means of a common commercial policy, to the progressive abolition of restrictions on international trade,

INTENDING to confirm the solidarity which binds Europe and the overseas countries and desiring to ensure the development of their prosperity, in accordance with the principles of the Charter of the United Nations,

RESOLVED by thus pooling their resources to preserve and strengthen peace and liberty, and calling upon the other peoples of Europe who share their ideal to join in their efforts,

DETERMINED to promote the development of the highest possible level of knowledge for their peoples through a wide access to education and through its continuous updating,

and to this end HAVE DESIGNATED as their Plenipotentiaries:

(List of plenipotentiaries not reproduced)

WHO, having exchanged their full powers, found in good and due form, have agreed as follows.

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One reflection is that the objectives of European integration are almost timeless, starting with ‘an ever closer union among the peoples of Europe’, real solidarity believed to flow naturally from ever closer cooperation between their countries.

Another thought is that a museum can freeze life at a certain point in time, but in the street outside life continues to adapt and change. Without remembering the establishment of the European Union and its development through the Maastricht, Amsterdam and Nice treaties, the contributions by the Convention and the Constitutional Treaty, and now the Lisbon Treaty, the picture of the ultimate goals would be incomplete.

Experiment a little: Read one recital, then stop to think if you can subscribe to that or not. Then take on the next one. In the end, count how many ‘yes’ and how many ‘no’ answers you have.

***

Since the TFEU Preamble barely changes, it hardly gets a mention in the legislative documents I have looked at, but it would be a mistake to bypass the Preamble as if it lacked importance.

According to the Vienna Convention on the Law of Treaties, Article 31(2) the text of a treaty includes its preamble and annexes for the purpose of the interpretation.


Ralf Grahn