What’s in a name? When discrimination ‘shall be abolished’ is replaced by ‘shall be prohibited’ in the Treaty of Lisbon, non-discrimination and direct effect appear in a new light.
***
Article 95 of the Treaty on the Functioning of the European Union (TFEU) is found in the consolidated version 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 115/86:
Part Three ‘Policies and internal actions of the Union’
Title VI TFEU ‘Transport’
Article 95 TFEU
(ex Article 75 TEC)
1. In the case of transport within the Union, discrimination which takes the form of carriers charging different rates and imposing different conditions for the carriage of the same goods over the same transport links on grounds of the country of origin or of destination of the goods in question shall be prohibited.
2. Paragraph 1 shall not prevent the European Parliament and the Council from adopting other measures pursuant to Article 91(1).
3. The Council shall, on a proposal from the Commission and after consulting the European Parliament and the Economic and Social Committee, lay down rules for implementing the provisions of paragraph 1.
The Council may in particular lay down the provisions needed to enable the institutions of the Union to secure compliance with the rule laid down in paragraph 1 and to ensure that users benefit from it to the full.
4. The Commission shall, acting on its own initiative or on application by a Member State, investigate any cases of discrimination falling within paragraph 1 and, after consulting any Member State concerned, shall take the necessary decisions within the framework of the rules laid down in accordance with the provisions of paragraph 3.
***
In Article 2, point 72 of the Treaty of Lisbon (ToL) the intergovernmental conference (IGC 2007) laid out the specific amendments to Article 75 TEC (OJ 17.12.2007 C 306/68):
72) Article 75 shall be amended as follows:
(a) in paragraph 1, the words ‘shall be abolished’ shall be replaced by ‘shall be prohibited’;
(b) in paragraph 2, the words ‘the Council’ shall be replaced by ‘the European Parliament and
the Council’;
(c) in the first subparagraph of paragraph 3, the words ‘the Economic and Social Committee’
shall be replaced by ‘the European Parliament and the Economic and Social Committee’.
***
The TFEU table of equivalences tells us that Article 75 TEC first became Article 75 TFEU (ToL), but later renumbered Article 95 TFEU in the consolidated version (OJ 17.12.2007 C 306/210).
***
The current Article 75 of the Treaty establishing the European Community (TEC) is found under Title V ‘Transport’ in the latest consolidated version of the treaties in force (OJ 29.12.2006 C 321 E/71–72):
Article 75 TEC
1. In the case of transport within the Community, discrimination which takes the form of carriers charging different rates and imposing different conditions for the carriage of the same goods over the same transport links on grounds of the country of origin or of destination of the goods in question shall be abolished.
2. Paragraph 1 shall not prevent the Council from adopting other measures pursuant to Article 71(1).
3. The Council shall, acting by a qualified majority on a proposal from the Commission and after consulting the Economic and Social Committee, lay down rules for implementing the provisions of paragraph 1.
The Council may in particular lay down the provisions needed to enable the institutions of the Community to secure compliance with the rule laid down in paragraph 1 and to ensure that users benefit from it to the full.
4. The Commission shall, acting on its own initiative or on application by a Member State, investigate any cases of discrimination falling within paragraph 1 and, after consulting any Member State concerned, shall take the necessary decisions within the framework of the rules laid down in accordance with the provisions of paragraph 3.
***
We look at the previous stages of the treaty reform process. First, the European Convention.
According to Article III-138 of the draft Treaty establishing a Constitution for Europe, in addition to minor amendments, the cases of discrimination mentioned shall be ‘prohibited’ instead of ‘abolished’ as in the current Article 75 TEC (OJ 18.7.2003 C 169/54):
Article III-138 Draft Constitution
1. In the case of transport within the Union, discrimination which takes the form of carriers charging different rates and imposing different conditions for the carriage of the same goods over the same transport links on grounds of the Member State of origin or of destination of the goods in question shall be prohibited.
2. Paragraph 1 shall not prevent the adoption of other European laws or framework laws pursuant to the first paragraph of Article III-134.
3. The Council of Ministers, on a proposal from the Commission, shall adopt European regulations or decisions for implementing paragraph 1. It shall act after consulting the European Parliament and the Economic and Social Committee.
The Council of Ministers may in particular adopt the European regulations and decisions needed to enable the institutions to secure compliance with the rule laid down in paragraph 1 and to ensure that users benefit from it to the full.
4. The Commission, acting on its own initiative or on application by a Member State, shall investigate any cases of discrimination falling within paragraph 1 and, after consulting any Member State concerned, adopt the necessary European decisions within the framework of the European regulations and decisions referred to in paragraph 3.
***
Article III-240 of the Treaty establishing a Constitution for Europe adopted the text of the European Convention with only some terminological change (OJ 16.12.2004 C 310/106–107).
***
The current Article 75 TEC depends on implementing measures to abolish discrimination with regard to carriers charging different rates and imposing different conditions for the carriage of the same goods over the same transport links on grounds of the country of origin or of destination of the goods. As such, Article 75 TEC is not directly applicable.
The Treaty of Lisbon (TFEU) has taken over the prohibition concerning discriminatory transport practices, proposed by the European Convention. A prohibition can be applied directly, without the need for implementing rules.
On the other hand, given the general ban on ‘any discrimination on grounds of nationality’ in Article 18 TFEU (currently Article 12 TEC), what is the scope for the special prohibition in the area of transport policy and with regard to certain forms of discrimination?
***
We now check our preliminary conclusions against how others who have scrutinised the Lisbon Treaty have informed ratifying parliaments and the public.
United Kingdom
Professor Steve Peers covered the Treaty of Lisbon in a number of Statewatch Analyses. ‘EU Reform Treaty Analysis no. 3.3: Revised text of Part Three, Titles I to VI of the Treaty establishing the European Community (TEC): Internal Market and competition’ (Version 2, 23 October 2007) includes the current Title V Transport.
Peers highlighted the differences between the current Article 75 TEC, the Constitutional Treaty and the Lisbon Treaty, but found no need to comment on Article 75 TFEU (ToL), to be renumbered Article 95 TFEU in the consolidated version (page 21–22).
The analysis 3.3 and other useful Statewatch analyses are available through:
http://www.statewatch.org/euconstitution.htm
***
The Foreign and Commonwealth Office (FCO) offers a convenient source of brief annotations on Lisbon Treaty amendments in ‘A comparative table of the current EC and EU treaties as amended by the Treaty of Lisbon’ (Command Paper 7311, published 21 January 2008). The comment on Article 95 TFEU, Article 75 TFEU (ToL) in the original Lisbon Treaty, focuses of the requirement to consult the European Parliament (page 11):
“In substance the same as Article 75 TEC, with a new requirement to consult the EP.”
The FCO comparative table is available at:
http://www.official-documents.gov.uk/document/cm73/7311/7311.asp
***
The UK House of Commons Library Research Paper 07/86 ‘The Treaty of Lisbon: amendments to the Treaty establishing the European Community’ (published 6 December 2007) wrapped up Transport in a brief comment on page 56:
“F. Transport
Title V, Articles 70-80 (Constitution Articles III-236 – 245) are on transport and are based largely on Articles 70 – 75 TEC, but with a change in the voting procedure to the OLP with QMV, except for Article 72, which replaces unanimity in the Constitution Article III-237 with a “special legislative procedure”. Other, minor, changes are Article 75(c), which adds the EP to those bodies to be consulted, and Article 78 (Constitution Article III-243), allowing the Article concerning German unification to be repealed after 5 years.
Present Articles 154 – 156 on Trans-European Networks (TENS) have been moved to Title VII and contain only minor amendments.”
The Library Research Paper 07/86 is available at:
http://www.parliament.uk/commons/lib/research/rp2007/rp07-086.pdf
***
The House of Lords European Union Committee report ‘The Treaty of Lisbon: an impact assessment, Volume I: Report’ (HL Paper 62-I, published 13 March 2008) made no explicit reference to Article 95 TFEU.
The report is accessible at:
http://www.publications.parliament.uk/pa/ld200708/ldselect/ldeucom/62/62.pdf
***
Sweden
The consultation paper of the government of Sweden, ‘Lissabonfördraget; Statsrådsberedningen, Departementsserien (Ds), Ds 2007:48’ published 20 December 2007, bundled together transport and trans-European networks under the headline ‘Transporter och transeuropeiska nät’ (page 280 to 282).
The text offers an overview of the coming Title VI ‘Transport’. Without mentioning Article 75 TFEU (ToL), the future Article 95 TFEU, the consultation paper describes the current rules to abolish discrimination on page 281 and mentions the change that the European Parliament has to be consulted according to Article 75(3) TFEU (ToL):
“Beslutsförfarandet för att genomföra avskaffande av diskriminering vid transporter inom gemenskapen ändras på så sätt att Europaparlamentet ska höras innan rådet fattar beslut med kvalificerad majoritet (artikel 75.3 i EUF-fördraget).”
The consultation paper ’Lissabonfördraget’ is available at:
http://www.regeringen.se/content/1/c6/09/49/81/107aa077.pdf
***
Finland
The systematic Finnish ratification bill, ‘Hallituksen esitys Eduskunnalle Euroopan unionista tehdyn sopimuksen ja Euroopan yhteisön perustamissopimuksen muuttamisesta tehdyn Lissabonin sopimuksen hyväksymisestä ja laiksi sen lainsäädännön alaan kuuluvien määräysten voimaansaattamisesta’ (HE 23/2008 vp), explains the amendments to Article 75 TFEU (ToL), renumbered Article 95 TFEU, although it does not draw any connclusions from the difference between measures to abolish discrimination and an outright prohibition (page 206):
”75 artiklaa (uusi 95 artikla), joka koskee syrjintää yhteisön sisäisessä liikenteessä tavaroiden alkuperä- tai määrämaan perusteella, muutetaan siten, että syrjinnän poistamisen sijasta käytetään ilmaisua ”Unionin sisäisessä liikenteessä on kiellettyä”.
SEUT 75 artikla vastaa pääosin perustuslakisopimuksen III-240 artiklaa. Perustuslakisopimuksen III-240 artiklan 1 kohdassa käytetään kuitenkin ilmaisun ”tavaroiden alkuperä- tai määrämaa” sijasta ilmaisua ”tavaroiden alkuperä- tai määräjäsenvaltio”. Sen lisäksi perustuslakisopimuksen III-240 artiklan 2 ja 3 kohdassa yksilöidään käytettävät säädösinstrumentit.”
The Finnish ratification bill is available at:
http://www.finlex.fi/fi/esitykset/he/2008/20080023.pdf
The Swedish language version of the ratification bill ‘Regeringens proposition till Riksdagen med förslag om godkännande av Lissabonfördraget om ändring av fördraget om Europeiska unionen och fördraget om upprättandet av Europeiska gemenskapen och till lag om sättande i kraft av de bestämmelser i fördraget som hör till området för lagstiftningen’ (RP 23/2008 rd), offers the same explanation on pages 208–209:
”Artikel 75 (blivande artikel 95), som gäller diskriminering vid transporter inom gemenskapen på grund av godsets ursprungs- eller bestämmelseland, ändras så att man i stället för avskaffandet av diskriminering använder ”vid transporter inom unionen ska all sådan diskriminering vara förbjuden".
Artikel 75 i EUF-fördraget motsvarar i huvudsak artikel III-240 i det konstitutionella fördraget. I artikel III-240.1 i det konstitutionella fördraget används dock uttrycket "godsets ursprungs- eller bestämmelsemedlemsstat” i stället för ”godsets ursprungs- eller bestämmelseland". I artikel III-240.2 och III-240.3 i det konstitutionella fördraget specificeras de rättsaktsinstrument som ska användas.”
The ratification bill in Swedish can be accessed at:
http://www.finlex.fi/sv/esitykset/he/2008/20080023.pdf
***
The current Article 75 TEC does not, if I understand correctly, have direct effect, since it depends on implementing measures. But the new TFEU 95 prohibition on discrimination should be directly applicable as ‘lex specialis’. In a concrete case the provision’s scope for non-discrimination and direct effect requires study, with the general ban on discrimination based on nationality (18 TFEU, 12 TEC) as a guiding light for interpretation.
Should my reasoning be correct, I am surprised that my sources have paid so little attention to the proposed change.
Ralf Grahn
Showing posts with label direct applicability. Show all posts
Showing posts with label direct applicability. Show all posts
Tuesday, 20 May 2008
Tuesday, 12 February 2008
EU Treaty of Lisbon: Official languages
The expansion of the European Communities and later the European Union are reflected in the growing number of Treaty languages, although the Treaty of the first community, the European Coal and Steel Community (ECSC), was drafted in an official version only in French, still the chosen language of European diplomacy during the first half of the 20th century.
The Treaties of Rome, on the European Economic Community (EEC) and the European Atomic Energy Community (EAEC or Euratom), were drawn up in the four languages of the six founding members: Dutch, French, German and Italian.
The successive Accession Treaties have been concluded in new languages, leading to corresponding adaptations of the Treaty languages.
The Lisbon Treaty reflects the linguistic diversity of the European Union, and it adapts the Treaties to take account of 23 equally authentic Treaty languages. In addition, the reform treaty encourages official translations by the member states of the Treaties into other official languages, i.e. regional and minority languages.
***
Speaking about languages: You can use natural, human language, or you can form part of an august body such as an intergovernmental conference and distance yourself from humanity. The IGC 2007 communicated its agreement like this in Article 53 of the Treaty on European Union (TEU) (OJ 17.12.2007 C 306/40):
61) Article 53 shall be amended as follows:
(a) the first paragraph shall be numbered 1, the languages listed in the second paragraph of the current Article 53 of the Treaty on European Union shall be added to the list in this paragraph and the second paragraph shall be deleted;
(b) the following new paragraph 2 shall be added:
‘2. This Treaty may also be translated into any other languages as determined by Member States among those which, in accordance with their constitutional order, enjoy official status in all or part of their territory. A certified copy of such translations shall be provided by the Member States concerned to be deposited in the archives of the Council.’.
***
The language regime of the European Union is hardly a secret, or a novelty, so why not let a reader of the Treaty of Lisbon understand the contents at one go?
RESOLVED to speak a little closer to the citizen, I
HAVE DECIDED to present the readable and consolidated text of Article 53 TEU here:
Article 53
1. This Treaty, drawn up in a single original in the Bulgarian, Czech, Danish, Dutch, English, Estonian, Finnish, French, German, Greek, Hungarian, Irish, Italian, Latvian, Lithuanian, Maltese, Polish, Portuguese, Romanian, Slovak, Slovenian, Spanish and Swedish languages, the texts in each of these languages being equally authentic, shall be deposited in the archives of the Government of the Italian Republic, which will transmit a certified copy to each of the governments of the other signatory States.
2. This Treaty may also be translated into any other languages as determined by Member States among those which, in accordance with their constitutional order, enjoy official status in all or part of their territory. A certified copy of such translations shall be provided by the Member States concerned to be deposited in the archives of the Council.
IN WITNESS WHEREOF the undersigned Plenipotentiaries have signed this Treaty.
***
The corresponding provision in the Treaty establishing the European Community (TEC), to be renamed the Treaty on the Functioning of the European Union (TFEU), is Article 314. The original Treaty languages are mentioned in the first paragraph, the languages added by the Accession Treaties in the second paragraph and the latest additions, Bulgarian and Romanian, referred to in the Appendix, when we look at the latest consolidated version of the current TEC, in OJ 29.12.2006 C 321 E/180.
The unified draft Treaty establishing a Constitution for Europe naturally needed only one provision on the then 21 languages, Article IV-10 Languages, to be adjusted in accordance with the Act of Accession (OJ 18.7.2003 C 169/93).
In the Treaty establishing a Constitution for Europe Article IV-448 Authentic texts and translations included the same 21 languages, in a numbered paragraph 1, and added a paragraph 2 on the translation of the Treaty into other official languages of the member states (OJ 16.12.2004 C 310/191).
The other novelty of the Constitutional Treaty was Declaration number 29 on linguistic diversity.
Looking at Article 53 TEU and Article 314 TFEU, to be adapted by the Treaty of Lisbon, we can see that the novelties of the Constitutional Treaty have been adopted, adding Bulgarian and Romanian.
***
The Declaration, too, has been adopted, with the number 16 (OJ 17.12.2007 C 306/254):
16. Declaration on Article 53(2) of the Treaty on European Union
The Conference considers that the possibility of producing translations of the Treaties in the languages mentioned in Article 53(2) contributes to fulfilling the objective of respecting the Union's rich cultural and linguistic diversity as set forth in the fourth subparagraph of Article 2(3). In this context, the Conference confirms the attachment of the Union to the cultural diversity of Europe and the special attention it will continue to pay to these and other languages.
The Conference recommends that those Member States wishing to avail themselves of the possibility
recognised in Article 53(2) communicate to the Council, within six months from the date of the signature of the Treaty of Lisbon, the language or languages into which translations of the Treaties will be made.
***
To complete the presentation of authentic Treaty languages, we turn our attention to Article 7 of the intergovernmental conference (IGC 2007), which states that the Treaty of Lisbon itself has been drawn up in the 23 languages mentioned above (OJ 17.12.2007 C 306/134).
***
The Treaty languages have both symbolic and practical importance, but the everyday use of these languages is crucial for the citizens of the European Union. The existing Article 290 TEC offers us the barest outline:
Article 290 TEC
The rules governing the languages of the institutions of the Community shall, without prejudice to the provisions contained in the Statute of the Court of Justice, be determined by the Council, acting unanimously.
The IGC 2007 adds the words ‘by means of regulations’ and adapts the names of the institutions, leading to the following new wording in the Lisbon Treaty:
Article 290 TFEU
The rules governing the languages of the institutions of the Union shall, without prejudice to the provisions contained in the Statute of the Court of Justice of the European Union, be determined by the Council, acting unanimously by the means of regulations.
***
Here are some hints for further reading:
For the official language regime of the EU, go to Regulation No 1 determining the languages to be used by the European Economic Community (originally OJ L 17, 6.10.1958, p. 385, but with several amendments and therefore best read in the consolidated version):
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CONSLEG:1958R0001:20070101:EN:PDF
Wikipedia offers an overview (in need of some updating) in the article Languages of the European Union:
http://en.wikipedia.org/wiki/Languages_of_the_European_Union
***
The European Union is unique among international organisations in involving not only states but directly applicable legislation concerning private firms and individuals, as well as offering incipient democratic rules of governance and citizenship. In my view, the language regime of the European Union has to reflect the linguistic diversity of the EU and its citizens, including the novelties introduced by the Lisbon Treaty to accommodate the regional and minority languages.
Ralf Grahn
The Treaties of Rome, on the European Economic Community (EEC) and the European Atomic Energy Community (EAEC or Euratom), were drawn up in the four languages of the six founding members: Dutch, French, German and Italian.
The successive Accession Treaties have been concluded in new languages, leading to corresponding adaptations of the Treaty languages.
The Lisbon Treaty reflects the linguistic diversity of the European Union, and it adapts the Treaties to take account of 23 equally authentic Treaty languages. In addition, the reform treaty encourages official translations by the member states of the Treaties into other official languages, i.e. regional and minority languages.
***
Speaking about languages: You can use natural, human language, or you can form part of an august body such as an intergovernmental conference and distance yourself from humanity. The IGC 2007 communicated its agreement like this in Article 53 of the Treaty on European Union (TEU) (OJ 17.12.2007 C 306/40):
61) Article 53 shall be amended as follows:
(a) the first paragraph shall be numbered 1, the languages listed in the second paragraph of the current Article 53 of the Treaty on European Union shall be added to the list in this paragraph and the second paragraph shall be deleted;
(b) the following new paragraph 2 shall be added:
‘2. This Treaty may also be translated into any other languages as determined by Member States among those which, in accordance with their constitutional order, enjoy official status in all or part of their territory. A certified copy of such translations shall be provided by the Member States concerned to be deposited in the archives of the Council.’.
***
The language regime of the European Union is hardly a secret, or a novelty, so why not let a reader of the Treaty of Lisbon understand the contents at one go?
RESOLVED to speak a little closer to the citizen, I
HAVE DECIDED to present the readable and consolidated text of Article 53 TEU here:
Article 53
1. This Treaty, drawn up in a single original in the Bulgarian, Czech, Danish, Dutch, English, Estonian, Finnish, French, German, Greek, Hungarian, Irish, Italian, Latvian, Lithuanian, Maltese, Polish, Portuguese, Romanian, Slovak, Slovenian, Spanish and Swedish languages, the texts in each of these languages being equally authentic, shall be deposited in the archives of the Government of the Italian Republic, which will transmit a certified copy to each of the governments of the other signatory States.
2. This Treaty may also be translated into any other languages as determined by Member States among those which, in accordance with their constitutional order, enjoy official status in all or part of their territory. A certified copy of such translations shall be provided by the Member States concerned to be deposited in the archives of the Council.
IN WITNESS WHEREOF the undersigned Plenipotentiaries have signed this Treaty.
***
The corresponding provision in the Treaty establishing the European Community (TEC), to be renamed the Treaty on the Functioning of the European Union (TFEU), is Article 314. The original Treaty languages are mentioned in the first paragraph, the languages added by the Accession Treaties in the second paragraph and the latest additions, Bulgarian and Romanian, referred to in the Appendix, when we look at the latest consolidated version of the current TEC, in OJ 29.12.2006 C 321 E/180.
The unified draft Treaty establishing a Constitution for Europe naturally needed only one provision on the then 21 languages, Article IV-10 Languages, to be adjusted in accordance with the Act of Accession (OJ 18.7.2003 C 169/93).
In the Treaty establishing a Constitution for Europe Article IV-448 Authentic texts and translations included the same 21 languages, in a numbered paragraph 1, and added a paragraph 2 on the translation of the Treaty into other official languages of the member states (OJ 16.12.2004 C 310/191).
The other novelty of the Constitutional Treaty was Declaration number 29 on linguistic diversity.
Looking at Article 53 TEU and Article 314 TFEU, to be adapted by the Treaty of Lisbon, we can see that the novelties of the Constitutional Treaty have been adopted, adding Bulgarian and Romanian.
***
The Declaration, too, has been adopted, with the number 16 (OJ 17.12.2007 C 306/254):
16. Declaration on Article 53(2) of the Treaty on European Union
The Conference considers that the possibility of producing translations of the Treaties in the languages mentioned in Article 53(2) contributes to fulfilling the objective of respecting the Union's rich cultural and linguistic diversity as set forth in the fourth subparagraph of Article 2(3). In this context, the Conference confirms the attachment of the Union to the cultural diversity of Europe and the special attention it will continue to pay to these and other languages.
The Conference recommends that those Member States wishing to avail themselves of the possibility
recognised in Article 53(2) communicate to the Council, within six months from the date of the signature of the Treaty of Lisbon, the language or languages into which translations of the Treaties will be made.
***
To complete the presentation of authentic Treaty languages, we turn our attention to Article 7 of the intergovernmental conference (IGC 2007), which states that the Treaty of Lisbon itself has been drawn up in the 23 languages mentioned above (OJ 17.12.2007 C 306/134).
***
The Treaty languages have both symbolic and practical importance, but the everyday use of these languages is crucial for the citizens of the European Union. The existing Article 290 TEC offers us the barest outline:
Article 290 TEC
The rules governing the languages of the institutions of the Community shall, without prejudice to the provisions contained in the Statute of the Court of Justice, be determined by the Council, acting unanimously.
The IGC 2007 adds the words ‘by means of regulations’ and adapts the names of the institutions, leading to the following new wording in the Lisbon Treaty:
Article 290 TFEU
The rules governing the languages of the institutions of the Union shall, without prejudice to the provisions contained in the Statute of the Court of Justice of the European Union, be determined by the Council, acting unanimously by the means of regulations.
***
Here are some hints for further reading:
For the official language regime of the EU, go to Regulation No 1 determining the languages to be used by the European Economic Community (originally OJ L 17, 6.10.1958, p. 385, but with several amendments and therefore best read in the consolidated version):
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CONSLEG:1958R0001:20070101:EN:PDF
Wikipedia offers an overview (in need of some updating) in the article Languages of the European Union:
http://en.wikipedia.org/wiki/Languages_of_the_European_Union
***
The European Union is unique among international organisations in involving not only states but directly applicable legislation concerning private firms and individuals, as well as offering incipient democratic rules of governance and citizenship. In my view, the language regime of the European Union has to reflect the linguistic diversity of the EU and its citizens, including the novelties introduced by the Lisbon Treaty to accommodate the regional and minority languages.
Ralf Grahn
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