Cavalier or corrupt contracting authorities are a menace to the public purse, taxpayer value and competitive businesses.
Is the European Community (European Union) concerned with public procurement only above certain threshold levels?
For those interested in good public governance and value for money, it is a relief to know that some common principles apply to all public contracts within the European Economic Area (EEA).
***
Article 2 principles
Article 2 of the Procurement Directive 2004/18/EC reminds us of three principles, which apply to public procurement, namely equal treatment, non-discrimination and transparency:
Article 2
Principles of awarding contracts
Contracting authorities shall treat economic operators equally and non-discriminatorily and shall act in a transparent way.
***
Recital 2
Recital 2 of the Procurement Directive 2004/18/EC, also known as the Classic Directive, explains that the provisions of the Treaty establishing the European Community (TEC) apply to all public procurement contracts. However, above certain threshold levels more detailed harmonised EC (EU) secondary legislation kicks in:
(2) The award of contracts concluded in the Member States on behalf of the State, regional or local authorities and other bodies governed by public law entities, is subject to the respect of the principles of the Treaty and in particular to the principle of freedom of movement of goods, the principle of freedom of establishment and the principle of freedom to provide services and to the principles deriving therefrom, such as the principle of equal treatment, the principle of non-discrimination, the principle of mutual recognition, the principle of proportionality and the principle of transparency. However, for public contracts above a certain value, it is advisable to draw up provisions of Community coordination of national procedures for the award of such contracts which are based on these principles so as to ensure the effects of them and to guarantee the opening-up of public procurement to competition. These coordinating provisions should therefore be interpreted in accordance with both the aforementioned rules and principles and other rules of the Treaty.
***
Treaty provisions
Here we look briefly at some of the main treaty provisions, which apply to public procurement contracts. (More detail can be found, in the light of the Lisbon Treaty, in previous blog posts on individual Articles.)
***
Article 2 TEC Common market
Article 2 of the Treaty establishing the European Community (TEC) states:
The Community shall have as its task, by establishing a common market…
The common market is the original concept enshrined in the Treaty of Rome (EEC Treaty). Since the Single European Act (SEA) it has gradually been replaced by the term internal market in the treaty and secondary legislation. (The Commission seems to favour the single market.) The Treaty of Lisbon would replace the common market by the internal market throughout.
***
Article 3 TEC Community activities
Article 3 TEC sets out Community activities based on the objectives (tasks) mentioned in the previous Article. At least the following are relevant to the common market (internal market) and consequently to public procurement:
Article 3 TEC (parts)
1. For the purposes set out in Article 2, the activities of the Community shall include, as provided in this Treaty and in accordance with the timetable set out therein:
(a) the prohibition, as between Member States, of customs duties and quantitative restrictions on the import and export of goods, and of all other measures having equivalent effect;
(b) a common commercial policy;
(c) an internal market characterised by the abolition, as between Member States, of obstacles to the free movement of goods, persons, services and capital;
(d) measures concerning the entry and movement of persons as provided for in Title IV;
-----
(g) a system ensuring that competition in the internal market is not distorted;
(h) the approximation of the laws of Member States to the extent required for the functioning of the common market;
-----
***
Four freedoms
The four market freedoms – free movement of goods, persons, services and capital – meet the material scope of the Procurement Directive, which concerns the execution of works (buildings and civil engineering works), the supply of products (goods) and the provision of services.
The ECJ has given the fundamental treaty principles concrete meaning based on the specific treaty provisions.
***
Free movement of goods
TEC Articles 23 to 31 contain the main principles regarding the free movement of goods.
Article 28 TEC prohibits all restrictions on imports an all measures having equivalent effect between member states.
***
Free movement of services
The free movement of services is set out in Articles 49 to 55 TEC.
Article 49 TEC prohibits restrictions on the freedom to provide services in another member state.
***
Right of establishment
Restrictions on the freedom of establishment of nationals of a member state in another member state are prohibited according to Article 43 TEC (to Article 48 TEC).
***
Free movement for workers
Articles 39 to 42 TEC aim at securing the free movement for workers within the Community.
***
Non-discrimination
The four freedoms can be seen as expressions of a principle of equal treatment of all economic actors and persons within the internal market.
Equality comprises both (active) equal treatment and (passive) absence of discrimination.
Normally, acts in breach of the specific market freedoms also constitute discrimination on grounds of nationality, but in any case the fundamental prohibition against discrimination on grounds of nationality stands as a reminder to contracting authorities and as an anchor for economic operators from other member states:
Article 12 TEC
Within the scope of application of this Treaty, and without prejudice to any special provisions
contained therein, any discrimination on grounds of nationality shall be prohibited.
The Council, acting in accordance with the procedure referred to in Article 251, may adopt rules
designed to prohibit such discrimination.
***
Interpretative Communication
If a public contract falls within the scope of the Procurement Directive 2004/18/EC, the detailed rules apply to the award procedure above the thresholds.
The Commission has offered guidance on public procurement procedures in cases where the specific rules of the Directives do not apply:
Commission Interpretative Communication on the Community law applicable to contract awards not or not fully subject to the provisions of the Public Procurement Directives (OJ 1.8.2006 C 179/2).
The Interpretative Communication refers to the EU-wide competitive tendering procedures set up in the Procurement Directive 2004/18/EC and the Utilities Directive 2004/17/EC, but refers to two kinds of contracts that are not or only partially covered by the Directives:
— Contracts below the thresholds for application of the Public Procurement Directives;
— Contracts for services listed in Annex II B to Directive 2004/18/EC and in Annex XVII B to Directive 2004/17/EC that exceed the thresholds for application of these Directives.
(Concessions are a third such category, mentioned in footnote 3 on the first page.)
***
Obligation of transparency
After summarizing the EC Treaty rules and the basic standards for the award of contracts, the Communication reminds the contracting entities (authorities) of the obligation to evaluate if an intended contract might potentially be of interest to economic operators located in other member states.
The Commission proceeds to deal with adequate advertising:
According to the ECJ, the principles of equal treatment and of non-discrimination imply an obligation of transparency which consists in ensuring, for the benefit of any potential tenderer, a degree of advertising sufficient to enable the market to be opened up to competition.
The obligation of transparency requires that an undertaking located in another Member State has access to appropriate information regarding the contract before it is awarded, so that, if it so wishes, it would be in a position to express its interest in obtaining that contract.
Ralf Grahn
Showing posts with label equal treatment. Show all posts
Showing posts with label equal treatment. Show all posts
Friday, 26 December 2008
Sunday, 7 December 2008
European Union: Equal pay for equal work
Eliminating inequalities and promoting equality between men and women is one of the general aims of the European Community.
Equal pay for men and women for equal work or work of equal value applies in the context of working life.
We present the relevant treaty provisions on gender equality and point to further reading containing practical information and access to secondary European Community (European Union) legislation on equal opportunities and equal treatment.
***
Gender equality
Article 3(2) TEC Equality
Article 3(1) of the Treaty establishing the European Community (TEC) lists the activities of the Community.
Article 3(2) TEC is a horizontal clause with the aim to eliminate inequalities and to promote equality between men and women (in the latest consolidated version of the treaties, OJ 29.12.2006 C 321 E/45):
2. In all the activities referred to in this Article, the Community shall aim to eliminate
inequalities, and to promote equality, between men and women.
Article 13 TEC Non-discrimination
Article 13 TEC sets out the general European Community powers to combat discrimination and to adopt incentive measures (OJ 29.12.2006 C 321 E/48):
Article 13 TEC
1. Without prejudice to the other provisions of this Treaty and within the limits of the powers conferred by it upon the Community, the Council, acting unanimously on a proposal from the Commission and after consulting the European Parliament, may take appropriate action to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation.
2. By way of derogation from paragraph 1, when the Council adopts Community incentive measures, excluding any harmonisation of the laws and regulations of the Member States, to support action taken by the Member States in order to contribute to the achievement of the objectives referred to in paragraph 1, it shall act in accordance with the procedure referred to in Article 251.
***
Article 141 TEC
Article 141 (ex Article 119) of the Treaty establishing the European Community (TEC) sets out the principle of gender equality in working life in some detail.
Equal pay for men and women for equal work or work of equal value is laid down as the norm. Although the principle is addressed to the member states, the ECJ has declared that it has direct effect, meaning that it binds parties to collective agreements as well as individual employers and imployees.
Pay is defined to include any consideration, and the criteria for calculating pay need to be objective.
Legislative acts concerning equal opportunities and equal treatment of men and women can be adopted according to the co-decision procedure.
So called positive discrimination is allowed in order to compensate for disadvantages.
The current Article 141 TEC, as published in the latest consolidated version of the treaties, OJ 29.12.2006 C 321 E/110:
Article 141 TEC
1. Each Member State shall ensure that the principle of equal pay for male and female workers for equal work or work of equal value is applied.
2. For the purpose of this article, ‘pay’ means the ordinary basic or minimum wage or salary and any other consideration, whether in cash or in kind, which the worker receives directly or indirectly, in respect of his employment, from his employer.
Equal pay without discrimination based on sex means:
(a) that pay for the same work at piece rates shall be calculated on the basis of the same unit of measurement;
(b) that pay for work at time rates shall be the same for the same job.
3. The Council, acting in accordance with the procedure referred to in Article 251, and after consulting the Economic and Social Committee, shall adopt measures to ensure the application of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation, including the principle of equal pay for equal work or work of equal value.
4. With a view to ensuring full equality in practice between men and women in working life, the principle of equal treatment shall not prevent any Member State from maintaining or adopting measures providing for specific advantages in order to make it easier for the underrepresented sex to pursue a vocational activity or to prevent or compensate for disadvantages in professional careers.
***
Original Lisbon Treaty (ToL)
Article 2, point 119 of the original Treaty of Lisbon (ToL) amends Article 140 TEC and point 120 concerns Article 143 TEC, so there are no specific amendments to Article 141 TEC (OJ 17.12.2007 C 306/82).
The unwieldy procedure referred to in Article 251 is replaced by the ordinary legislative procedure, in accordance with the horizontal amendment mentioned in Article 2, point 2(c) of the original Lisbon Treaty (OJ 17.12.2007 C 306/42).
***
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 141 TFEU (ToL) was to be renumbered Article 157 TFEU in the consolidated versions of the amending treaties (OJ 17.12.2007 C 306/216).
***
Consolidated Lisbon Treaty
After the horizontal amendment Article 157 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 115/117–118, appears as follows:
(TITLE X
SOCIAL POLICY)
Article 157 TFEU
(ex Article 141 TEC)
1. Each Member State shall ensure that the principle of equal pay for male and female workers for equal work or work of equal value is applied.
2. For the purpose of this Article, ‘pay’ means the ordinary basic or minimum wage or salary and any other consideration, whether in cash or in kind, which the worker receives directly or indirectly, in respect of his employment, from his employer.
Equal pay without discrimination based on sex means:
(a) that pay for the same work at piece rates shall be calculated on the basis of the same unit of measurement;
(b) that pay for work at time rates shall be the same for the same job.
3. The European Parliament and the Council, acting in accordance with the ordinary legislative
procedure, and after consulting the Economic and Social Committee, shall adopt measures to ensure the application of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation, including the principle of equal pay for equal work or work of equal value.
4. With a view to ensuring full equality in practice between men and women in working life, the principle of equal treatment shall not prevent any Member State from maintaining or adopting measures providing for specific advantages in order to make it easier for the underrepresented sex to pursue a vocational activity or to prevent or compensate for disadvantages in professional careers.
***
Protocol No 33
Rolled over and annexed to the Lisbon Treaty is Protocol (No 33) concerning Article 157 of the Treaty on the Functioning of the European Union (OJ 9.5.2008 C 115/319):
PROTOCOL (No 33)
CONCERNING ARTICLE 157 OF THE TREATY ON THE
FUNCTIONING OF THE EUROPEAN UNION
THE HIGH CONTRACTING PARTIES,
HAVE AGREED upon the following provision, which shall be annexed to the Treaty on European Union and to the Treaty on the Functioning of the European Union:
For the purposes of Article 157 of the Treaty on the Functioning of the European Union, benefits under occupational social security schemes shall not be considered as remuneration if and in so far as they are attributable to periods of employment prior to 17 May 1990, except in the case of workers or those claiming under them who have before that date initiated legal proceedings or introduced an equivalent claim under the applicable national law.
***
Charter of Fundamental Rights
The Charter of Fundamental Rights of the European Union has been politically binding on the EU institutions since it was proclaimed in Nice in December 2000.
The Charter was an integrated part of the Constitutional Treaty (as Part II), but it did not become legally binding since the ratification processes of the Constitution petered out after the negative referendums in France and the Netherlands.
The Treaty of Lisbon does not incorporate the text of the Charter, but the European Union ‘recognises the rights, freedoms and principles set out in the Charter of Fundamental Rights of the European Union of 7 December 2000, as adapted at Strasbourg, on 12 December 2007, which shall have the same legal value as the Treaties’ (Article 6 TEU).
For the purposes of this blog post, we recall the general non-discrimination Article 21 of the Charter of Fundamental Rights, which includes the prohibition of discrimination on the grounds of sex (OJ 14.12.2007 C 303/7):
Article 21
Non-discrimination
1. Any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation shall be prohibited.
2. Within the scope of application of the Treaties and without prejudice to any of their specific provisions, any discrimination on grounds of nationality shall be prohibited.
The equality between men and women is evoked by Article 23 of the Charter of Fundamental Rights:
Article 23
Equality between women and men
Equality between women and men must be ensured in all areas, including employment, work and pay.
The principle of equality shall not prevent the maintenance or adoption of measures providing for specific advantages in favour of the under-represented sex.
***
Charter explanations
The Explanations relating to the Charter of Fundamental Rights were originally drawn up during the European Convention. They have been technically adjusted but not materially updated since then. The latest version concerning Article 21 was published in OJ 14.12.2007 C 303/24:
Explanation on Article 21 — Non-discrimination
Paragraph 1 draws on Article 13 of the EC Treaty, now replaced by Article 19 of the Treaty on the Functioning of the European Union, Article 14 of the ECHR and Article 11 of the Convention on Human Rights and Biomedicine as regards genetic heritage. In so far as this corresponds to Article 14 of the ECHR, it applies in compliance with it.
There is no contradiction or incompatibility between paragraph 1 and Article 19 of the Treaty on the Functioning of the European Union which has a different scope and purpose: Article 19 confers power on the Union to adopt legislative acts, including harmonisation of the Member States' laws and regulations, to combat certain forms of discrimination, listed exhaustively in that Article. Such legislation may cover action of Member State authorities (as well as relations between private individuals) in any area within the limits of the Union's powers. In contrast, the provision in Article 21(1) does not create any power to enact anti-discrimination laws in these areas of Member State or private action, nor does it lay down a sweeping ban of discrimination in such wide-ranging areas. Instead, it only addresses discriminations by the institutions and bodies of the Union themselves, when exercising powers conferred under the Treaties, and by Member States only when they are implementing Union law. Paragraph 1 therefore does not alter the extent of powers granted under Article 19 nor the interpretation given to that Article.
Paragraph 2 corresponds to the first paragraph of Article 18 of the Treaty on the Functioning of the European Union and must be applied in compliance with that Article.
More specifically in the context of Article 157 TFEU, the explanation concerning Charter Article 23 facilitates understanding and guides interpretation in the following way:
Explanation on Article 23 — Equality between women and men
The first paragraph has been based on Articles 2 and 3(2) of the EC Treaty, now replaced by Article 3 of the Treaty on European Union and Article 8 of the Treaty on the Functioning of the European Union which impose the objective of promoting equality between men and women on the Union, and on Article 157(1) of the Treaty on the Functioning of the European Union. It draws on Article 20 of the revised European Social Charter of 3 May 1996 and on point 16 of the Community Charter on the rights of workers.
It is also based on Article 157(3) of the Treaty on the Functioning of the European Union and Article 2(4) of Council Directive 76/207/EEC on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions.
The second paragraph takes over in shorter form Article 157(4) of the Treaty on the Functioning of the European Union which provides that the principle of equal treatment does not prevent the maintenance or adoption of measures providing for specific advantages in order to make it easier for the under-represented sex to pursue a vocational activity or to prevent or compensate for disadvantages in professional careers. In accordance with Article 52(2), the present paragraph does not amend Article 157(4).
***
Equal opportunities
Citizens
In a series of European General Guides addressed to EU citizens, the European Commission offers a brochure called Equal rights and opportunities for men and women in the European Union (last update 2005; 12 pages):
http://ec.europa.eu/youreurope/nav/fi/citizens/services/eu-guide/opportunities/opportunities_en.pdf
Commission activities
The Commission’s DG Employment, Social Affairs and Equal Opportunities web page offers links to information about i.a. Living an working abroad, Tackling discrimination, Equal opportunities for all, Rights at work and Employment:
http://ec.europa.eu/social/home.jsp?langId=en
There are a number of useful links, covering most aspects of Gender equality, starting from page:
http://ec.europa.eu/employment_social/gender_equality/index_en.html
Legal
For the legally minded gender equality legislation opens up with a General Overview:
http://ec.europa.eu/employment_social/gender_equality/legislation/index_en.html
This is a gateway to the following pages: Equal treatment in the EC Treaty, Legal acts on equal treatment (secondary legislation), Case law of the European Court of Justice, Bulletin on Legal Issues in Equality, and Reports.
***
Community agencies
Community agencies relevant to sex discrimination and gender equality are at least:
The European Agency for Safety and Health at Work (EU-OSHA), in Bilbao, Spain:
http://europa.eu/agencies/community_agencies/osha/index_en.htm
The European Foundation for the Improvement of Living and Working Conditions (Eurofound), in Dublin, Ireland:
http://europa.eu/agencies/community_agencies/eurofound/index_en.htm
Ralf Grahn
Equal pay for men and women for equal work or work of equal value applies in the context of working life.
We present the relevant treaty provisions on gender equality and point to further reading containing practical information and access to secondary European Community (European Union) legislation on equal opportunities and equal treatment.
***
Gender equality
Article 3(2) TEC Equality
Article 3(1) of the Treaty establishing the European Community (TEC) lists the activities of the Community.
Article 3(2) TEC is a horizontal clause with the aim to eliminate inequalities and to promote equality between men and women (in the latest consolidated version of the treaties, OJ 29.12.2006 C 321 E/45):
2. In all the activities referred to in this Article, the Community shall aim to eliminate
inequalities, and to promote equality, between men and women.
Article 13 TEC Non-discrimination
Article 13 TEC sets out the general European Community powers to combat discrimination and to adopt incentive measures (OJ 29.12.2006 C 321 E/48):
Article 13 TEC
1. Without prejudice to the other provisions of this Treaty and within the limits of the powers conferred by it upon the Community, the Council, acting unanimously on a proposal from the Commission and after consulting the European Parliament, may take appropriate action to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation.
2. By way of derogation from paragraph 1, when the Council adopts Community incentive measures, excluding any harmonisation of the laws and regulations of the Member States, to support action taken by the Member States in order to contribute to the achievement of the objectives referred to in paragraph 1, it shall act in accordance with the procedure referred to in Article 251.
***
Article 141 TEC
Article 141 (ex Article 119) of the Treaty establishing the European Community (TEC) sets out the principle of gender equality in working life in some detail.
Equal pay for men and women for equal work or work of equal value is laid down as the norm. Although the principle is addressed to the member states, the ECJ has declared that it has direct effect, meaning that it binds parties to collective agreements as well as individual employers and imployees.
Pay is defined to include any consideration, and the criteria for calculating pay need to be objective.
Legislative acts concerning equal opportunities and equal treatment of men and women can be adopted according to the co-decision procedure.
So called positive discrimination is allowed in order to compensate for disadvantages.
The current Article 141 TEC, as published in the latest consolidated version of the treaties, OJ 29.12.2006 C 321 E/110:
Article 141 TEC
1. Each Member State shall ensure that the principle of equal pay for male and female workers for equal work or work of equal value is applied.
2. For the purpose of this article, ‘pay’ means the ordinary basic or minimum wage or salary and any other consideration, whether in cash or in kind, which the worker receives directly or indirectly, in respect of his employment, from his employer.
Equal pay without discrimination based on sex means:
(a) that pay for the same work at piece rates shall be calculated on the basis of the same unit of measurement;
(b) that pay for work at time rates shall be the same for the same job.
3. The Council, acting in accordance with the procedure referred to in Article 251, and after consulting the Economic and Social Committee, shall adopt measures to ensure the application of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation, including the principle of equal pay for equal work or work of equal value.
4. With a view to ensuring full equality in practice between men and women in working life, the principle of equal treatment shall not prevent any Member State from maintaining or adopting measures providing for specific advantages in order to make it easier for the underrepresented sex to pursue a vocational activity or to prevent or compensate for disadvantages in professional careers.
***
Original Lisbon Treaty (ToL)
Article 2, point 119 of the original Treaty of Lisbon (ToL) amends Article 140 TEC and point 120 concerns Article 143 TEC, so there are no specific amendments to Article 141 TEC (OJ 17.12.2007 C 306/82).
The unwieldy procedure referred to in Article 251 is replaced by the ordinary legislative procedure, in accordance with the horizontal amendment mentioned in Article 2, point 2(c) of the original Lisbon Treaty (OJ 17.12.2007 C 306/42).
***
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 141 TFEU (ToL) was to be renumbered Article 157 TFEU in the consolidated versions of the amending treaties (OJ 17.12.2007 C 306/216).
***
Consolidated Lisbon Treaty
After the horizontal amendment Article 157 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 115/117–118, appears as follows:
(TITLE X
SOCIAL POLICY)
Article 157 TFEU
(ex Article 141 TEC)
1. Each Member State shall ensure that the principle of equal pay for male and female workers for equal work or work of equal value is applied.
2. For the purpose of this Article, ‘pay’ means the ordinary basic or minimum wage or salary and any other consideration, whether in cash or in kind, which the worker receives directly or indirectly, in respect of his employment, from his employer.
Equal pay without discrimination based on sex means:
(a) that pay for the same work at piece rates shall be calculated on the basis of the same unit of measurement;
(b) that pay for work at time rates shall be the same for the same job.
3. The European Parliament and the Council, acting in accordance with the ordinary legislative
procedure, and after consulting the Economic and Social Committee, shall adopt measures to ensure the application of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation, including the principle of equal pay for equal work or work of equal value.
4. With a view to ensuring full equality in practice between men and women in working life, the principle of equal treatment shall not prevent any Member State from maintaining or adopting measures providing for specific advantages in order to make it easier for the underrepresented sex to pursue a vocational activity or to prevent or compensate for disadvantages in professional careers.
***
Protocol No 33
Rolled over and annexed to the Lisbon Treaty is Protocol (No 33) concerning Article 157 of the Treaty on the Functioning of the European Union (OJ 9.5.2008 C 115/319):
PROTOCOL (No 33)
CONCERNING ARTICLE 157 OF THE TREATY ON THE
FUNCTIONING OF THE EUROPEAN UNION
THE HIGH CONTRACTING PARTIES,
HAVE AGREED upon the following provision, which shall be annexed to the Treaty on European Union and to the Treaty on the Functioning of the European Union:
For the purposes of Article 157 of the Treaty on the Functioning of the European Union, benefits under occupational social security schemes shall not be considered as remuneration if and in so far as they are attributable to periods of employment prior to 17 May 1990, except in the case of workers or those claiming under them who have before that date initiated legal proceedings or introduced an equivalent claim under the applicable national law.
***
Charter of Fundamental Rights
The Charter of Fundamental Rights of the European Union has been politically binding on the EU institutions since it was proclaimed in Nice in December 2000.
The Charter was an integrated part of the Constitutional Treaty (as Part II), but it did not become legally binding since the ratification processes of the Constitution petered out after the negative referendums in France and the Netherlands.
The Treaty of Lisbon does not incorporate the text of the Charter, but the European Union ‘recognises the rights, freedoms and principles set out in the Charter of Fundamental Rights of the European Union of 7 December 2000, as adapted at Strasbourg, on 12 December 2007, which shall have the same legal value as the Treaties’ (Article 6 TEU).
For the purposes of this blog post, we recall the general non-discrimination Article 21 of the Charter of Fundamental Rights, which includes the prohibition of discrimination on the grounds of sex (OJ 14.12.2007 C 303/7):
Article 21
Non-discrimination
1. Any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation shall be prohibited.
2. Within the scope of application of the Treaties and without prejudice to any of their specific provisions, any discrimination on grounds of nationality shall be prohibited.
The equality between men and women is evoked by Article 23 of the Charter of Fundamental Rights:
Article 23
Equality between women and men
Equality between women and men must be ensured in all areas, including employment, work and pay.
The principle of equality shall not prevent the maintenance or adoption of measures providing for specific advantages in favour of the under-represented sex.
***
Charter explanations
The Explanations relating to the Charter of Fundamental Rights were originally drawn up during the European Convention. They have been technically adjusted but not materially updated since then. The latest version concerning Article 21 was published in OJ 14.12.2007 C 303/24:
Explanation on Article 21 — Non-discrimination
Paragraph 1 draws on Article 13 of the EC Treaty, now replaced by Article 19 of the Treaty on the Functioning of the European Union, Article 14 of the ECHR and Article 11 of the Convention on Human Rights and Biomedicine as regards genetic heritage. In so far as this corresponds to Article 14 of the ECHR, it applies in compliance with it.
There is no contradiction or incompatibility between paragraph 1 and Article 19 of the Treaty on the Functioning of the European Union which has a different scope and purpose: Article 19 confers power on the Union to adopt legislative acts, including harmonisation of the Member States' laws and regulations, to combat certain forms of discrimination, listed exhaustively in that Article. Such legislation may cover action of Member State authorities (as well as relations between private individuals) in any area within the limits of the Union's powers. In contrast, the provision in Article 21(1) does not create any power to enact anti-discrimination laws in these areas of Member State or private action, nor does it lay down a sweeping ban of discrimination in such wide-ranging areas. Instead, it only addresses discriminations by the institutions and bodies of the Union themselves, when exercising powers conferred under the Treaties, and by Member States only when they are implementing Union law. Paragraph 1 therefore does not alter the extent of powers granted under Article 19 nor the interpretation given to that Article.
Paragraph 2 corresponds to the first paragraph of Article 18 of the Treaty on the Functioning of the European Union and must be applied in compliance with that Article.
More specifically in the context of Article 157 TFEU, the explanation concerning Charter Article 23 facilitates understanding and guides interpretation in the following way:
Explanation on Article 23 — Equality between women and men
The first paragraph has been based on Articles 2 and 3(2) of the EC Treaty, now replaced by Article 3 of the Treaty on European Union and Article 8 of the Treaty on the Functioning of the European Union which impose the objective of promoting equality between men and women on the Union, and on Article 157(1) of the Treaty on the Functioning of the European Union. It draws on Article 20 of the revised European Social Charter of 3 May 1996 and on point 16 of the Community Charter on the rights of workers.
It is also based on Article 157(3) of the Treaty on the Functioning of the European Union and Article 2(4) of Council Directive 76/207/EEC on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions.
The second paragraph takes over in shorter form Article 157(4) of the Treaty on the Functioning of the European Union which provides that the principle of equal treatment does not prevent the maintenance or adoption of measures providing for specific advantages in order to make it easier for the under-represented sex to pursue a vocational activity or to prevent or compensate for disadvantages in professional careers. In accordance with Article 52(2), the present paragraph does not amend Article 157(4).
***
Equal opportunities
Citizens
In a series of European General Guides addressed to EU citizens, the European Commission offers a brochure called Equal rights and opportunities for men and women in the European Union (last update 2005; 12 pages):
http://ec.europa.eu/youreurope/nav/fi/citizens/services/eu-guide/opportunities/opportunities_en.pdf
Commission activities
The Commission’s DG Employment, Social Affairs and Equal Opportunities web page offers links to information about i.a. Living an working abroad, Tackling discrimination, Equal opportunities for all, Rights at work and Employment:
http://ec.europa.eu/social/home.jsp?langId=en
There are a number of useful links, covering most aspects of Gender equality, starting from page:
http://ec.europa.eu/employment_social/gender_equality/index_en.html
Legal
For the legally minded gender equality legislation opens up with a General Overview:
http://ec.europa.eu/employment_social/gender_equality/legislation/index_en.html
This is a gateway to the following pages: Equal treatment in the EC Treaty, Legal acts on equal treatment (secondary legislation), Case law of the European Court of Justice, Bulletin on Legal Issues in Equality, and Reports.
***
Community agencies
Community agencies relevant to sex discrimination and gender equality are at least:
The European Agency for Safety and Health at Work (EU-OSHA), in Bilbao, Spain:
http://europa.eu/agencies/community_agencies/osha/index_en.htm
The European Foundation for the Improvement of Living and Working Conditions (Eurofound), in Dublin, Ireland:
http://europa.eu/agencies/community_agencies/eurofound/index_en.htm
Ralf Grahn
Thursday, 10 April 2008
EU TFEU: Equality for investors
The EU Treaty of Lisbon accords capital investors from other member states equal treatment with nationals of the state of the company or firm. This declaratory or clarifying provision, Article 294 of the Treaty establishing the European Community, is moved into a more logical context within the Treaty of Lisbon, but without added substance.
***
In the Treaty of Lisbon (ToL), point 55, the intergovernmental conference (IGC 2007) decided to shift the location of Article 294 of the Treaty establishing the European Community (TEC). See Official Journal, OJ, 17.12.2007 C 306/55:
55) An Article 48a shall be inserted, with the wording of Article 294.
***
Our first task is to look up Article 294 TEC, in the latest consolidated version of the treaties, TEU and TEC, in OJ 29.12.2006 C 321 E/173. We notice that the Article is located in TEC Part Six ‘General and final provisions’, and the contents are the following:
Article 294 TEC
Member States shall accord nationals of the other Member States the same treatment as their own nationals as regards participation in the capital of companies or firms within the meaning of Article 48, without prejudice to the application of the other provisions of this Treaty.
***
There is no express amendment of the wording and the only horizontal amendment is to replace ‘this Treaty’ by ‘the Treaties’ according to point 2(b)) in the Lisbon Treaty. We check the numbering in the original Lisbon Treaty and the renumbering for the coming consolidated versions of the provision and the referral, and we add the location of the provision within the treaty for ease of reading. The treaty itself is renamed the Treaty on the Functioning of the European Union (TFEU), and here is what the provision should look like:
Part Three ‘Policies and internal actions of the Union’
Title III (renumbered Title IV) ‘Free movement of persons, services and capital’
Chapter 2 ‘Right of establishment’
Article 48a TFEU (ToL), renumbered Article 55 TFEU
Member States shall accord nationals of the other Member States the same treatment as their own nationals as regards participation in the capital of companies or firms within the meaning of Article 48 [ToL, renumbered Article 54 TFEU], without prejudice to the application of the other provisions of the Treaties.
***
The European Convention initiated the tidying up exercise by placing the provision at the end of Subsection 2 ‘Freedom of establishment’, as Article III-28. Naturally, the preceding Article of the draft Treaty establishing a Constitution for Europe referred to was numbered differently and it spoke of the other provisions of the Constitution, but the contents remained the same (OJ 18.7.2003 C 169/33).
***
The IGC 2004 followed the lead of the draft Constitution in every aspect save one. The Treaty establishing a Constitution for Europe limited its referral to the second paragraph of the preceding Article (OJ 16.12.2004 C 310/63):
Article III-143 Constitution
Member States shall accord nationals of the other Member States the same treatment as their own nationals as regards participation in the capital of companies or firms within the meaning of the second paragraph of Article III-142, without prejudice to the application of the other provisions of the Constitution.
***
In other words, the IGC 2007 followed the lead of the European Convention in finding more amenable surroundings for the Article, but by taking over the wording of the present TEC it did not follow the Constitutional Treaty in referring only to the second paragraph of the preceding Article.
***
We can easily agree with the conclusion in the ‘Comparative table of the current EC and EU Treaties as amended by the Treaty of Lisbon (Cm 7311; page 8) about Article 55 TFEU (Article 48a ToL): In substance the same as Article 294 TEC.
But we would like to offer a few hints to the readers who want to know what the present (and future) provision might mean in practice.
Not much, it seems. The principle of equal treatment for capital investors follows from other treaty provisions, so the Article is only declaratory. I quote Rudolf Streinz, EUV/EGV, Vertrag über die Europäische Union und Vertrag zur Gründung der Europäischen Gemeinschaft (Verlag C.H. Beck, München 2003; page 2434):
„Art. 294 EGV hat heute keine praktische Bedeutung mehr. Bestenfalls kann der Vorschrift klarstellende Bedeutung zukommen, dass nicht nur die Gründung und Leitung von Unternehmen (vgl. Art. 43 EGV), sondern auch das Halten einer Beteiligung unter die Freiheitsberechtigungen des Vertrages fallen. In seinem persönlichen und sachlichen Anwendungsbereich ist Art. 294 EGV aber subsidiär gegenüber den Grundfreiheiten. Die dem sachlichen Anwendungsbereich nach relevante Niederlassungsfreiheit und die Kapitalverkehrsfreiheit gehen zudem über den Gewährleistungsinhalt des Art. 294 EGV hinaus, weil sie nicht nur Diskriminierungen nach der Staatsangehörigkeit, sondern jegliche Beschränkung verbieten.“
In other words, other provisions on free movement cater for this and more. In due time, we are going to look at the provisions with relevance.
Ralf Grahn
***
In the Treaty of Lisbon (ToL), point 55, the intergovernmental conference (IGC 2007) decided to shift the location of Article 294 of the Treaty establishing the European Community (TEC). See Official Journal, OJ, 17.12.2007 C 306/55:
55) An Article 48a shall be inserted, with the wording of Article 294.
***
Our first task is to look up Article 294 TEC, in the latest consolidated version of the treaties, TEU and TEC, in OJ 29.12.2006 C 321 E/173. We notice that the Article is located in TEC Part Six ‘General and final provisions’, and the contents are the following:
Article 294 TEC
Member States shall accord nationals of the other Member States the same treatment as their own nationals as regards participation in the capital of companies or firms within the meaning of Article 48, without prejudice to the application of the other provisions of this Treaty.
***
There is no express amendment of the wording and the only horizontal amendment is to replace ‘this Treaty’ by ‘the Treaties’ according to point 2(b)) in the Lisbon Treaty. We check the numbering in the original Lisbon Treaty and the renumbering for the coming consolidated versions of the provision and the referral, and we add the location of the provision within the treaty for ease of reading. The treaty itself is renamed the Treaty on the Functioning of the European Union (TFEU), and here is what the provision should look like:
Part Three ‘Policies and internal actions of the Union’
Title III (renumbered Title IV) ‘Free movement of persons, services and capital’
Chapter 2 ‘Right of establishment’
Article 48a TFEU (ToL), renumbered Article 55 TFEU
Member States shall accord nationals of the other Member States the same treatment as their own nationals as regards participation in the capital of companies or firms within the meaning of Article 48 [ToL, renumbered Article 54 TFEU], without prejudice to the application of the other provisions of the Treaties.
***
The European Convention initiated the tidying up exercise by placing the provision at the end of Subsection 2 ‘Freedom of establishment’, as Article III-28. Naturally, the preceding Article of the draft Treaty establishing a Constitution for Europe referred to was numbered differently and it spoke of the other provisions of the Constitution, but the contents remained the same (OJ 18.7.2003 C 169/33).
***
The IGC 2004 followed the lead of the draft Constitution in every aspect save one. The Treaty establishing a Constitution for Europe limited its referral to the second paragraph of the preceding Article (OJ 16.12.2004 C 310/63):
Article III-143 Constitution
Member States shall accord nationals of the other Member States the same treatment as their own nationals as regards participation in the capital of companies or firms within the meaning of the second paragraph of Article III-142, without prejudice to the application of the other provisions of the Constitution.
***
In other words, the IGC 2007 followed the lead of the European Convention in finding more amenable surroundings for the Article, but by taking over the wording of the present TEC it did not follow the Constitutional Treaty in referring only to the second paragraph of the preceding Article.
***
We can easily agree with the conclusion in the ‘Comparative table of the current EC and EU Treaties as amended by the Treaty of Lisbon (Cm 7311; page 8) about Article 55 TFEU (Article 48a ToL): In substance the same as Article 294 TEC.
But we would like to offer a few hints to the readers who want to know what the present (and future) provision might mean in practice.
Not much, it seems. The principle of equal treatment for capital investors follows from other treaty provisions, so the Article is only declaratory. I quote Rudolf Streinz, EUV/EGV, Vertrag über die Europäische Union und Vertrag zur Gründung der Europäischen Gemeinschaft (Verlag C.H. Beck, München 2003; page 2434):
„Art. 294 EGV hat heute keine praktische Bedeutung mehr. Bestenfalls kann der Vorschrift klarstellende Bedeutung zukommen, dass nicht nur die Gründung und Leitung von Unternehmen (vgl. Art. 43 EGV), sondern auch das Halten einer Beteiligung unter die Freiheitsberechtigungen des Vertrages fallen. In seinem persönlichen und sachlichen Anwendungsbereich ist Art. 294 EGV aber subsidiär gegenüber den Grundfreiheiten. Die dem sachlichen Anwendungsbereich nach relevante Niederlassungsfreiheit und die Kapitalverkehrsfreiheit gehen zudem über den Gewährleistungsinhalt des Art. 294 EGV hinaus, weil sie nicht nur Diskriminierungen nach der Staatsangehörigkeit, sondern jegliche Beschränkung verbieten.“
In other words, other provisions on free movement cater for this and more. In due time, we are going to look at the provisions with relevance.
Ralf Grahn
Wednesday, 26 December 2007
EU Treaty of Lisbon: equality and citizenship
The Laeken declaration (2001) expressed the ambition to bring the European institutions closer to the citizens of the Union. The Union needed to become more democratic, more transparent and more efficient. It also had to resolve three basic challenges: how to bring citizens, primarily the young, closer to the European design and the European institutions, how to organise politics and the European political area in an enlarged Union and how to develop the Union into a stabilising factor and model in the new, multipolar world.
The Laeken declaration led to the Convention on the future of Europe, which drafted the Constitutional Treaty, approved by the intergovernmental conference (IGC 2004) with modifications and signed by all member state governments on 29 October 2004.
Equality and citizenship are two of the cornerstones of the relationship between the Europeans and the European Union.
The Treaty of Maastricht (1992) established the citizenship of the European Union.
Equality
The existing Article 12 TEC prohibits discrimination on the grounds of nationality: Within the scope of application of this Treaty, and without prejudice to any special provisions contained therein, any discrimination on grounds of nationality shall be prohibited.
Article 13(1) TEC offers the legal basis for “appropriate action to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation”.
The Lisbon Treaty broadens the scope of these prohibitions on discrimination by adding positive obligations to observe equality and equal treatment in all Union action.
In the draft Constitution, the Convention proposed a new Article I-44, which became the basis for the wording of the Constitutional Treaty. The Treaty establishing a Constitution for Europe (OJ 16.12.2004, C 310), Title VI , The democratic life of the Union, Article I-45, The principle of democratic equality: In all its activities, the Union shall observe the principle of equality of its citizens, who shall receive equal attention from its institutions, bodies, offices and agencies.
This sentence was taken over by the intergovernmental conference (IGC 2007) and inserted into the new article 8 TEU.
Citizenship
More than half a century since the beginning of European integration, we are still in the middle of a process of transforming economic communities into a Union of people, with full rights for its citizens.
The so called Spinelli project of the European Parliament (1984), the draft Treaty establishing the European Union, would have established the EU and introduced a citizenship of the Union. These reforms had to wait until 1992, when the European leaders were ready to introduce them in the Treaty on European Union (Treaty of Maastricht).
Article 17(1) of the present Treaty on establishing the European Community (TEC): Citizenship of the Union is hereby established. Every person holding the nationality of a Member State shall be a citizen of the Union. Citizenship of the Union shall complement and not replace national citizenship.
There seem to be people out there, horrified by the prospect of becoming citizens and acquiring fundamental rights in the European Union. Let it therefore be said:
In the new Article 8 TEU there is no need to establish the citizenship of the European Union, because it exists since the Treaty of Maastricht, which entered into force in November 1993.
Then to the wording:
“Every person” becomes “every national” in the amending Lisbon Treaty, but the meaning of the second sentence is the same as in Article 17(1) TEC.
The third sentence alters the wording slightly. Citizenship of the Union shall “complement” national citizenship becomes shall be “additional to” in the new Article 8 TEU, without altering the meaning.
In the draft Constitutional Treaty the corresponding clause was Article I-8(1). In the Constitutional Treaty the wording of Article I-10(1) was already the same as the second and third sentences of Article 8 TEU in the Lisbon Treaty.
***
My consolidated version: The Treaty of Lisbon (OJ 17.12.2007, C 306/1) amending the Treaty on European Union (latest consolidation OJ 29.12.2006, C 321 E), new Title II, Provisions on democratic principles, with new Article 8:
Article 8
In all its activities, the Union shall observe the principle of the equality of its citizens, who shall receive equal attention from its institutions, bodies, offices and agencies. Every national of a Member State shall be a citizen of the Union. Citizenship of the Union shall be additional to national citizenship and shall not replace it.
***
My next Lisbon Treaty instalment is going to look at the democratic principles of the European Union.
Ralf Grahn
The Laeken declaration led to the Convention on the future of Europe, which drafted the Constitutional Treaty, approved by the intergovernmental conference (IGC 2004) with modifications and signed by all member state governments on 29 October 2004.
Equality and citizenship are two of the cornerstones of the relationship between the Europeans and the European Union.
The Treaty of Maastricht (1992) established the citizenship of the European Union.
Equality
The existing Article 12 TEC prohibits discrimination on the grounds of nationality: Within the scope of application of this Treaty, and without prejudice to any special provisions contained therein, any discrimination on grounds of nationality shall be prohibited.
Article 13(1) TEC offers the legal basis for “appropriate action to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation”.
The Lisbon Treaty broadens the scope of these prohibitions on discrimination by adding positive obligations to observe equality and equal treatment in all Union action.
In the draft Constitution, the Convention proposed a new Article I-44, which became the basis for the wording of the Constitutional Treaty. The Treaty establishing a Constitution for Europe (OJ 16.12.2004, C 310), Title VI , The democratic life of the Union, Article I-45, The principle of democratic equality: In all its activities, the Union shall observe the principle of equality of its citizens, who shall receive equal attention from its institutions, bodies, offices and agencies.
This sentence was taken over by the intergovernmental conference (IGC 2007) and inserted into the new article 8 TEU.
Citizenship
More than half a century since the beginning of European integration, we are still in the middle of a process of transforming economic communities into a Union of people, with full rights for its citizens.
The so called Spinelli project of the European Parliament (1984), the draft Treaty establishing the European Union, would have established the EU and introduced a citizenship of the Union. These reforms had to wait until 1992, when the European leaders were ready to introduce them in the Treaty on European Union (Treaty of Maastricht).
Article 17(1) of the present Treaty on establishing the European Community (TEC): Citizenship of the Union is hereby established. Every person holding the nationality of a Member State shall be a citizen of the Union. Citizenship of the Union shall complement and not replace national citizenship.
There seem to be people out there, horrified by the prospect of becoming citizens and acquiring fundamental rights in the European Union. Let it therefore be said:
In the new Article 8 TEU there is no need to establish the citizenship of the European Union, because it exists since the Treaty of Maastricht, which entered into force in November 1993.
Then to the wording:
“Every person” becomes “every national” in the amending Lisbon Treaty, but the meaning of the second sentence is the same as in Article 17(1) TEC.
The third sentence alters the wording slightly. Citizenship of the Union shall “complement” national citizenship becomes shall be “additional to” in the new Article 8 TEU, without altering the meaning.
In the draft Constitutional Treaty the corresponding clause was Article I-8(1). In the Constitutional Treaty the wording of Article I-10(1) was already the same as the second and third sentences of Article 8 TEU in the Lisbon Treaty.
***
My consolidated version: The Treaty of Lisbon (OJ 17.12.2007, C 306/1) amending the Treaty on European Union (latest consolidation OJ 29.12.2006, C 321 E), new Title II, Provisions on democratic principles, with new Article 8:
Article 8
In all its activities, the Union shall observe the principle of the equality of its citizens, who shall receive equal attention from its institutions, bodies, offices and agencies. Every national of a Member State shall be a citizen of the Union. Citizenship of the Union shall be additional to national citizenship and shall not replace it.
***
My next Lisbon Treaty instalment is going to look at the democratic principles of the European Union.
Ralf Grahn
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