EU Treaty of Lisbon Geographical scope II

At least from a Nordic perspective, this kind of lawmaking is like a return decades back in time. It is as if they had invented an inverted open method of coordination with worst practice benchmarking.

The ‘conference of representatives of the Member States’ (IGC 2007) has been convened to impart that the territorial scope of the Treaties is to be deduced by combining parts of a current Article with a set of prescribed amendments.

The text is gibberish or Volapûk for the reader of the Treaty of Lisbon, a completely unnecessary obfuscation of the information to be imparted, when it would have been simpler to write down the complete Article as amended.

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In part one we saw that the Treaties apply to the member states, and we recapitulated the enlargement process and the consequent widening territorial or geographical scope of the Treaties. In this second part of the article we can turn our attention to more arcane details of applicability in the light of the Lisbon Treaty, although naming concrete territories and the expounding the limits of applicability would require further study.

Our next stop is obvious, Article 311a of the Treaty on the Functioning of the European Union (TFEU) where we see that the IGC is back at its enlightening best (OJ 17.12.2007 C 306/132):

293) Article 311 shall be repealed. A new Article 311a shall be inserted, with the wording of Article 299(2), first subparagraph, and Article 299(3) to (6); the text shall be amended as follows:

(a) the first subparagraph of paragraph 2 and paragraphs 3 to 6 shall be renumbered 1 to 5 and the following new introductory wording shall be inserted at the beginning of the Article:

‘In addition to the provisions of Article 49 C of the Treaty on European Union relating to the territorial scope of the Treaties, the following provisions shall apply:’;

(b) at the beginning of the first subparagraph of paragraph 2, renumbered 1, the words ‘the French overseas departments,’ shall be replaced by ‘Guadeloupe, French Guiana, Martinique, Réunion, Saint-Barthélemy, Saint-Martin’ and the words ‘in accordance with Article 299’ shall be added at the end;

(c) in paragraph 3, renumbered 2, the words ‘of this Treaty’ shall be deleted;

(d) in paragraph 6, renumbered 5, the introductory words ‘Notwithstanding the preceding paragraphs:’ shall be replaced by ‘Notwithstanding Article 49 C of the Treaty on European Union and paragraphs 1 to 4 of this Article:’;

(e) the following new paragraph shall be added at the end of the Article:

‘6. The European Council may, on the initiative of the Member State concerned, adopt a decision amending the status, with regard to the Union, of a Danish, French or Netherlands country or territory referred to in paragraphs 1 and 2. The European Council shall act unanimously after consulting the Commission.’.

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We already saw the current Article 299 TEC in part one. While the application of the Treaties to the member states was elevated to the Treaty on European Union (TEU), the rest was left in the more mundane TFEU, but given a new number. Following the instructions given by our games organizers, we should end up with an Article 311a TFEU looking like this:

Article 311a TFEU

In addition to the provisions of Article 49c of the Treaty on European Union relating to the territorial scope of the Treaties, the following provisions shall apply:

1. The provisions of this Treaty shall apply to Guadeloupe, French Guiana, Martinique, Réunion, Saint-Barthélemy, Saint-Martin, the Azores, Madeira and the Canary Islands in accordance with Article 299.

2. The special arrangements for association set out in Part Four shall apply to the overseas countries and territories listed in Annex II.

The Treaties shall not apply to those overseas countries and territories having special relations with the United Kingdom of Great Britain and Northern Ireland which are not included in the aforementioned list.

3. The provisions of the Treaties shall apply to the European territories for whose external relations a Member State is responsible.

4. The provisions of the Treaties shall apply to the Åland Islands in accordance with the provisions set out in Protocol 2 to the Act concerning the conditions of accession of the Republic of Austria, the Republic of Finland and the Kingdom of Sweden.

5. Notwithstanding Article 49c of the Treaty on European Union and paragraphs 1 to 4 of this Article:

(a) the Treaties shall not apply to the Faeroe Islands;

(b) this Treaty shall not apply to the United Kingdom Sovereign Base Areas of Akrotiri and Dhekelia in Cyprus except to the extent necessary to ensure the implementation of the arrangements set out in the Protocol on the Sovereign Base Areas of the United Kingdom of Great Britain and Northern Ireland in Cyprus annexed to the Act concerning the conditions of accession of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic to the European Union and in accordance with the terms of that Protocol;

(c) the Treaties shall apply to the Channel Islands and the Isle of Man only to the extent necessary to ensure the implementation of the arrangements for those islands set out in the Treaty concerning the accession of new Member States to the European Economic Community and to the European Atomic Energy Community signed on 22 January 1972.

6. The European Council may, on the initiative of the Member State concerned, adopt a decision amending the status, with regard to the Union, of a Danish, French or Netherlands country or territory referred to in paragraphs 1 and 2. The European Council shall act unanimously after consulting the Commission.

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We start with the rule that the Treaties apply to the territories of the member states (Article 49c TEU).


Territories outside Europe

Article 311a(1) TFEU includes the French, Portuguese and Spanish extra-European territories: Guadeloupe, French Guiana, Martinique, Réunion, Saint-Barthélemy, Saint-Martin, the Azores, Madeira and the Canary Islands.

As territories the Treaties are applicable pursuant to the main rule, but in accordance with the amended Article 299 TFEU the structural and economic situation of these territories is taken into account.

The situation is said to be compounded by their remoteness, insularity, small size, difficult topography and climate, economic dependence on a few products, the permanence and combination of which severely restrain their development. Therefore specific measures are allowed, aimed at laying down the conditions of application of the Treaties, including common policies.

The measures may concern particularly customs and trade policies, fiscal policy, free zones, agriculture and fisheries policies, conditions for supply of raw materials and essential consumer goods, state aids and conditions of access to structural funds and to horizontal Union programmes.


Associated overseas territories

According to Article 311a(2) special arrangements for association apply to the following overseas countries and territories listed in Annex II (taken from OJ 29.12.2006 C 321 E/186):

ANNEX II
OVERSEAS COUNTRIES AND TERRITORIES
to which the provisions of Part Four of the Treaty apply
— Greenland
— New Caledonia and Dependencies
— French Polynesia
— French Southern and Antarctic Territories
— Wallis and Futuna Islands
— Mayotte
— Saint Pierre and Miquelon
— Aruba

— Netherlands Antilles:
— Bonaire
— Curaçao
— Saba
— Sint Eustatius
— Sint Maarten

— Anguilla
— Cayman Islands
— Falkland Islands
— South Georgia and the South Sandwich Islands
— Montserrat
— Pitcairn
— Saint Helena and Dependencies
— British Antarctic Territory
— British Indian Ocean Territory
— Turks and Caicos Islands
— British Virgin Islands
— Bermuda

The association system is described in the current Articles 182 to 186 TEC, which live on with minimal change in the TFEU.

The Treaties do not apply to overseas countries and territories having special relations with the United Kingdom of Great Britain and Northern Ireland not included in the list.


Responsibility for external relations

The Treaties apply to the European territories for whose external relations a Member State is responsible.


Åland Islands

A European territory, the Åland Islands form an autonomous region of Finland with extended legislative powers and self-rule.

The relationship with the European Union was agreed in a protocol attached to the Accession Treaty of 1994, and one could speak of modified applicability.


European territories outside the Treaties

Although European, the territories mentioned in 311a(5) are not applicable to the Faeroe Islands and only marginally to the UK bases in Cyprus and to the Channel Islands and the Isle of Man.

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While waiting for the (hopefully complete) consolidated versions of the Treaty of Lisbon, the student who wants to find general guidance on additional questions of applicability could find some useful information in Protocol (number 8) on the Treaties and Acts of Accession of the Kingdom of Denmark, Ireland and the United Kingdom of Great Britain and Northern Ireland, of the Hellenic Republic, of the Kingdom of Spain and the Portuguese Republic, and of Austria, the Republic of Finland and the Kingdom of Sweden, in the form they were attached to the Treaty establishing a Constitution for Europe (OJ 16.12.2004 C 310/274).

There are, for instance, provisions on Gibraltar, the Faroe Islands, the Channel Islands and the Isle of Man, Ceuta and Melilla and the Åland Islands.

Protocol (number 9) to the Constitutional Treaty contains, i.a. provisions on the sovereign base areas of the UK in Cyprus (page 328) as well as the suspension of the EU and EC ‘acquis’ in the areas of Cyprus outside the effective control of the government (page 341).


Ralf Grahn

EU Treaty of Lisbon: Geographical scope I

Where are the Treaties of the European Union (EU) applicable? If a citizen of the EU manages to answer “In the member states”, it is a good answer. If he is able to name the member states, his response would be excellent for everyday purposes.

But we, as students of European integration, want to dig a little deeper. Therefore, we turn to the fresh accord between European governments, the Treaty of Lisbon. For comparison, we present the main provision in the current Treaty establishing the European Community (TEC) and mention the intermediary stages for those who want to follow the modifications step by step.

Since the territorial or geographical applicability of the EU Treaties is tied up with the membership of the Union, we recapitulate the different enlargement stages of the European Communities and the European Union.

Then, we add a few comments about the scope of the Reform Treaty. This is how far we go in part I.

After the proposed main provision in the Lisbon Treaty, we advance to the detailed provisions in a second part of this article, to be published later.

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The intergovernmental conference (IGC 2007) agreed to insert the following Article 49c into the Lisbon Treaty version of the Treaty on European Union (TEU) (OJ 17.12.2007 C 306/40):

An Article 49 C shall be inserted:

Article 49c

1. The Treaties shall apply to the Kingdom of Belgium, Republic of Bulgaria, the Czech Republic, the Kingdom of Denmark, the Federal Republic of Germany, the Republic of Estonia, Ireland, the Hellenic Republic, the Kingdom of Spain, the French Republic, the Italian Republic, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Grand Duchy of Luxembourg, the Republic of Hungary, the Republic of Malta, the Kingdom of the Netherlands, the Republic of Austria, the Republic of Poland, the Portuguese Republic, Romania, the Republic of Slovenia, the Slovak Republic, the Republic of Finland, the Kingdom of Sweden and the United Kingdom of Great Britain and Northern Ireland.

2. The territorial scope of the Treaties is specified in Article 311a of the Treaty on the Functioning of the European Union.

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The current corresponding Article is found in Article 299 of the Treaty establishing the European Community (TEC) (latest consolidated version of the TEU and TEC in OJ C 321 E/174 and 175, but amended by the 2003 Act of Accession regarding the latest entrants Bulgaria and Romania):


Article 299 TEC

1. This Treaty shall apply to the Kingdom of Belgium, the Czech Republic, the Kingdom of Denmark, the Federal Republic of Germany, the Republic of Estonia, the Hellenic Republic, the Kingdom of Spain, the French Republic, Ireland, the Italian Republic, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Grand Duchy of Luxembourg, the Republic of Hungary, the Republic of Malta, the Kingdom of the Netherlands, the Republic of Austria, the Republic of Poland, the Portuguese Republic, the Republic of Slovenia, the Slovak Republic, the Republic of Finland, the Kingdom of Sweden and the United Kingdom of Great Britain and Northern Ireland.

2. The provisions of this Treaty shall apply to the French overseas departments, the Azores, Madeira and the Canary Islands.

However, taking account of the structural social and economic situation of the French overseas departments, the Azores, Madeira and the Canary Islands, which is compounded by their remoteness, insularity, small size, difficult topography and climate, economic dependence on a few products, the permanence and combination of which severely restrain their development, the Council, acting by a qualified majority on a proposal from the Commission and after consulting the European Parliament, shall adopt specific measures aimed, in particular, at laying down the conditions of application of the present Treaty to those regions, including common policies.

The Council shall, when adopting the relevant measures referred to in the second subparagraph, take into account areas such as customs and trade policies, fiscal policy, free zones, agriculture and fisheries policies, conditions for supply of raw materials and essential consumer goods, State aids and conditions of access to structural funds and to horizontal Community programmes.

The Council shall adopt the measures referred to in the second subparagraph taking into account the special characteristics and constraints of the outermost regions without undermining the integrity and the coherence of the Community legal order, including the internal market and common policies.

3. The special arrangements for association set out in Part Four of this Treaty shall apply to the overseas countries and territories listed in Annex II to this Treaty.

This Treaty shall not apply to those overseas countries and territories having special relations with the United Kingdom of Great Britain and Northern Ireland which are not included in the aforementioned list.

4. The provisions of this Treaty shall apply to the European territories for whose external relations a Member State is responsible.

5. The provisions of this Treaty shall apply to the Åland Islands in accordance with the provisions set out in Protocol 2 to the Act concerning the conditions of accession of the Republic of Austria, the Republic of Finland and the Kingdom of Sweden.

6. Notwithstanding the preceding paragraphs:

(a) this Treaty shall not apply to the Faeroe Islands;

(b) this Treaty shall not apply to the United Kingdom Sovereign Base Areas of Akrotiri and Dhekelia in Cyprus except to the extent necessary to ensure the implementation of the arrangements set out in the Protocol on the Sovereign Base Areas of the United Kingdom of Great Britain and Northern Ireland in Cyprus annexed to the Act concerning the conditions of accession of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic to the European Union and in accordance with the terms of that Protocol;

(c) this Treaty shall apply to the Channel Islands and the Isle of Man only to the extent necessary to ensure the implementation of the arrangements for those islands set out in the Treaty concerning the accession of new Member States to the European Economic Community and to the European Atomic Energy Community signed on 22 January 1972.

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I refer the reader who wants to compare the evolvement of the scope of the Treaties to the main provisions of the following intermediary stages:

The European Convention proposed an Article IV-4 Scope, under Part IV General and final provisions, with three dots at the end of paragraph 1 in anticipation of the ten entrants of May 2004. See draft Treaty establishing a Constitution for Europe, OJ 18.7.2003 C 169/91 and 92.

The IGC 2004 signed up to Article IV-440 Scope, under Part IV General and final provisions, with modifications in the Treaty establishing a Constitution for Europe. See OJ 16.12.2004 C 310/188 and 189.

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The IGC 2007 was a tidying-up exercise in at least two respects, as far as Article 49c(1) TEU of the Treaty of Lisbon is concerned. The Article introduces a complete list of the member states of the European Union, all 27 of them, by including the latest accession countries Bulgaria and Romania.

The second clarification is the choice to mention only the member states in the more basic of the basic treaties, the TEU. The TEU and the Treaty on the Functioning of the European Union (TFEU) are equally binding, but the TEU could be described as being more equal than the other.

The general reader finds the needed information, the names of the member states, in the future TEU. The gritty detail is shifted to the TFEU for those want to delve deeper. This is done by the referral in Article 49c(2) to Article 311a TFEU.

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Let us start with the main point, the spectacular enlargement of the European Communities. First there was the European Coal and Steel Community (ECSC), established by the Treaty of Paris 1951, which expired in 2002 after 50 years in force.

When only five of the six original members showed maturity enough to launch the European Defence Community and the European (Political) Community and the effort failed, the relaunch of European construction was achieved by the six founding members on a more modest scale by the Treaties of Rome 1957, establishing the European Economic Community (EEC) and the European Atomic Energy Community (EAEC or Euratom).

The six founding members of the ECSC, the EEC and Euratom were Belgium, France, (West) Germany, Italy, Luxembourg and the Netherlands.

Denmark, Ireland and the United Kingdom joined in 1973, bringing the membership to nine.

The Mediterranean enlargement followed in two phases, first Greece in 1981 and then Portugal and Spain in 1986. A Europe of twelve was born.

The first Eastern enlargement was not technically an accession, since the Federal Republic of Germany absorbed the German Democratic Republic in 1990.

A flavour of neutrality and non-alignment was added in 1995 with the accession of Austria, Finland and Sweden to what had become the European Union (EU) and the European Community (EC).

The abbreviation EU-15 started to make its appearance with increasing frequency as the EU headed towards the big bang of Eastern (and Mediterranean) enlargement. In May 2004 ten new states became EU members:

Cyprus, the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Malta, Poland, Slovakia and Slovenia (EU-25).

Bulgaria and Romania completed this enlargement round by joining the EU in 2007, raising the number of members to 27 and the population of the EU to around 490 million, some would say ‘an internal market of’, others ‘citizens’. (Of course, the internal market comprising the European Economic Area, EEA, is slightly larger than the EC, if we want to make the distinction.)

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A few comments by your glossator:

As a treaty based organisation, the European Union has no territory primarily its own. The geographical extent of the EU is derived from its member states, being in principle the sum of its member states’ (European) territories.

Three things seem worth mentioning:

First, according to the wording, the Treaties do not apply “in” but primarily “to” the member states mentioned. Applicability “in” their territories could be said to be incidental.

Second, from the applicability of primary law (the Treaties) follows that the secondary legislation – regulations, directives and decisions – is applicable, too.

Third, international treaties concluded by the European Community (in the future the European Union) within its powers, are applied in the same territory.

Thus far, the scope of EU law looks pretty clear. We are ready to answer most of the questions most of the time, but we have yet to face the small print, which will be the subject of instalment II.


Ralf Grahn