EU consumer rights: Treaty level

If you want the short version of consumer protection aspirations in the EU, you can read the Charter of Fundamental Rights of the European Union, where the programme has been boiled down to one short sentence (in the latest consolidated = updated version on the Treaties and the Charter, OJEU 30.3.2010 C 83):

Article 38 Charter
Consumer protection

Union policies shall ensure a high level of consumer protection.

Shared competence

According to Article 4(2)(f) of the Treaty on the Functioning of the European Union (TFEU) consumer protection is generally a shared competence between the EU and member states. OJEU (30.3.2010 C 83).



General application

We find consumer protection under provisions having general, or horizontal application:

Article 12 TFEU
(ex Article 153(2) TEC)

Consumer protection requirements shall be taken into account in defining and implementing other Union policies and activities.

Approximation of laws

Approximation or harmonisation of laws for the establishment and functioning of the internal market concerns, among other areas, a high level consumer protection in Article 114(3) TFEU.



Title XV of Part Three TFEU

The main provision on consumer protection is Article 169 TFEU:

Article 169 TFEU
(ex Article 153 TEC)

1. In order to promote the interests of consumers and to ensure a high level of consumer protection, the Union shall contribute to protecting the health, safety and economic interests of consumers, as well as to promoting their right to information, education and to organise themselves in order to safeguard their interests.

2. The Union shall contribute to the attainment of the objectives referred to in paragraph 1 through:

(a) measures adopted pursuant to Article 114 in the context of the completion of the internal market;

(b) measures which support, supplement and monitor the policy pursued by the Member States.

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 the measures referred to in paragraph 2(b).

4. Measures adopted pursuant to paragraph 3 shall not prevent any Member State from maintaining or introducing more stringent protective measures. Such measures must be compatible with the Treaties. The Commission shall be notified of them.

After this introduction we can turn to the proposed Directive on consumer rights.




Ralf Grahn

EU TFEU: Churches and non-confessional organisations

Can a member state of the European Union contemplate the death penalty for apostasy, the renunciation of a religious faith, since the relations between state and church are exclusive competences of the member states?

We take a look at what the Lisbon Treaty has to say about state powers in religious matters, and we outline the limits of these competences.

Europe is no Iran.

***

The intergovernmental conference (IGC 2007) inserted a new Article 16c on churches and religions into the Treaty of Lisbon (ToL), in Part One, Principles, Title II, Provisions having general application, of the Treaty establishing the European Community (TEC), renamed the Treaty on the Functioning of the European Union (TFEU). See the Official Journal (OJ) 17.12.2007 C 306/50:

30) The following new Article 16 C shall be inserted:

Article 16c TFEU (ToL), after renumbering Article 17 TFEU

1. The Union respects and does not prejudice the status under national law of churches and religious associations or communities in the Member States.

2. The Union equally respects the status under national law of philosophical and non-confessional organisations.

3. Recognising their identity and their specific contribution, the Union shall maintain an open, transparent and regular dialogue with these churches and organisations.

***

There is no corresponding provision in the current treaties, but the first two paragraphs derive from Declaration 11 attached to the Treaty of Amsterdam. Available at:

http://europa.eu.int/eur-lex/lex/en/treaties/dat/11997D/htm/11997D.html#0133040028

11. Declaration on the status of churches and non-confessional organisations

The European Union respects and does not prejudice the status under national law of churches and religious associations or communities in the Member States.

The European Union equally respects the status of philosophical and non-confessional organisations.

***

The European Convention debated the place of God, churches and religion in the draft Treaty establishing a Constitution for Europe, and ended up with the following provision in Part I, Title VI The democratic life of the Union (OJ 18.7.2003 C 169/20):

Article I-51 Draft Constitution
Status of churches and non-confessional organisations

1. The Union respects and does not prejudice the status under national law of churches and religious associations or communities in the Member States.

2. The Union equally respects the status of philosophical and non-confessional organisations.

3. Recognising their identity and their specific contribution, the Union shall maintain an open, transparent and regular dialogue with these churches and organisations.

***

We can see that the two paragraphs of Declaration 11 were numbered, but inserted ‘verbatim’. The third paragraph, on a regular dialogue with churches as well as religious and non-confessional organisations was new.

The IGC 2004 continued the discussion on the place of God and religion in the secular Treaty establishing a Constitution for Europe, but as in the draft Constitution, there was no specific mention of God. The Constitution began its Preamble with the following referral:

DRAWING INSPIRATION from the cultural, religious and humanist inheritance of Europe, from which have developed the universal values of the inviolable and inalienable rights of the human person, freedom, democracy, equality and the rule of law, …

***


As you can see, the Constitutional Treaty took over the provision of the draft Constitution, in Part I, Title VI The democratic life of the Union, adding ‘under national law’ to the second paragraph (OJ 16.12.2004 C 310/36):

Article I-52 Constitution
Status of churches and non-confessional organisations

1. The Union respects and does not prejudice the status under national law of churches and
religious associations or communities in the Member States.

2. The Union equally respects the status under national law of philosophical and non-confessional
organisations.

3. Recognising their identity and their specific contribution, the Union shall maintain an open,
transparent and regular dialogue with these churches and organisations.

***

These provisions of the Lisbon Treaty TFEU and the Constitution are identical.

If God is universal, the relations between states and churches are manifold. The European Union recognises that these relations are within the exclusive competence of the member states.

***

On the other hand, the powers of the member states may be exclusive, but not without limits. All the EU members are members of the Council of Europe, and they are parties to the pan-European Convention for the Protection of Human Rights and Fundamental Freedoms, available at:

www.coe.int

The Charter of Fundamental Rights of the European Union expressly recognises the right to freedom of thought, conscience and religion. This right includes the freedom to change religion or belief (OJ 14.12.2007 C 303/4):

Article 10 Charter
Freedom of thought, conscience and religion

1. Everyone has the right to freedom of thought, conscience and religion. This right includes freedom to change religion or belief and freedom, either alone or in community with others and in public or in private, to manifest religion or belief, in worship, teaching, practice and observance.

2. The right to conscientious objection is recognised, in accordance with the national laws governing the exercise of this right.

***

The first stop for the background of Charter provisions are the Explanations relating to the Charter of Fundamental Rights (OJ 14.12.2007 C 303/21):

Explanation on Article 10 — Freedom of thought, conscience and religion

The right guaranteed in paragraph 1 corresponds to the right guaranteed in Article 9 of the ECHR and, in accordance with Article 52(3) of the Charter, has the same meaning and scope. Limitations must therefore respect Article 9(2) of the Convention, which reads as follows: ‘Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.’

The right guaranteed in paragraph 2 corresponds to national constitutional traditions and to the development of national legislation on this issue.

***

Article 2 of the Charter protects the right to life, which includes the abolishment of the death penalty (OJ 14.12.2007 C 303/3):

Article 2 Charter
Right to life

1. Everyone has the right to life.

2. No one shall be condemned to the death penalty, or executed.

***

The European Union, which sees its values as universal, has predictably condemned the Iranian Parliament’s draft criminal code, which would sanction apostasy with the death penalty. See the CFSP Statement on the web site of the Slovenian Presidency of the EU Council, “Declaration by the Presidency on behalf of the EU concerning the consideration of a draft Penal code in the Islamic Republic of Iran”:

http://www.eu2008.si/en/News_and_Documents/CFSP_Statements/February/0225MZZiran.html

The Iranian draft code contradicts two fundamental values of the European Union (and the Council of Europe): right to freedom of thought, conscience and religion, including the freedom to change religion or belief, and the ban on the death penalty, seen as barbarous and cruel.

The leadership of Iran has shown little concern for human rights and international public opinion, but some reader might be interested enough to sort out Iran’s commitments under international law, including conventions on human rights.

***

The amended Treaty on European Unionof (TEU), Article 8b TEU (ToL), renumbered Article 11 TEU, already provides for exchanges of views, dialogue and consultations with citizens, representative associations, civil society and parties concerned (OJ 17.12.2007 C 306/14):

Article 8b TEU (ToL), after renumbering Article 11 TEU

1. The institutions shall, by appropriate means, give citizens and representative associations the opportunity to make known and publicly exchange their views in all areas of Union action.

2. The institutions shall maintain an open, transparent and regular dialogue with representative associations and civil society.

3. The European Commission shall carry out broad consultations with parties concerned in order to ensure that the Union's actions are coherent and transparent.

4. Not less than one million citizens who are nationals of a significant number of Member States may take the initiative of inviting the European Commission, within the framework of its powers, to submit any appropriate proposal on matters where citizens consider that a legal act of the Union is required for the purpose of implementing the Treaties.

The procedures and conditions required for such a citizens' initiative shall be determined in accordance with the first paragraph of Article 21 of the Treaty on the Functioning of the European Union.

***

The general TEU clause on dialogue leaves the EU institutions wide scope to select the issues and participants, whereas the specific TFEU provision on dialogue with religious and non-confessional organisations creates an obligation with some minimum content for the institutions.


Ralf Grahn

EU TFEU: Personal data protection

Protection of personal data looks nice on paper for the citizen of the European Union, but what are the principles worth in practice when assailed by the US administration’s ‘war on terror’, unscrupulous ICT business practices beyond the reach of EU jurisdiction, or the EU member states’ common foreign and security concerns as well as their combat against terrorism and crime?

The first step towards answers is to get acquainted with the basic provisions at the EU treaty level, both the current ones and those proposed by the Treaty of Lisbon.

***

In the Treaty of Lisbon (ToL) the intergovernmental conference (IGC 2007) inserts a provision on personal data protection in the Treaty establishing the European Community (TEC), to be called the Treaty on the Functioning of the European Union (TFEU). The Article is placed in TFEU Part One, Title II Provisions having general application. See Official Journal (OJ) 17.12.2007 C 306/50:

29) An Article 16 B shall be inserted, replacing Article 286:

Article 16b TFEU (ToL), when renumbered Article 16 TFEU

1. Everyone has the right to the protection of personal data concerning them.

2. The European Parliament and the Council, acting in accordance with the ordinary legislative procedure, shall lay down the rules relating to the protection of individuals with regard to the processing of personal data by Union institutions, bodies, offices and agencies, and by the Member States when carrying out activities which fall within the scope of Union law, and the rules relating to the free movement of such data. Compliance with these rules shall be subject to the control of independent authorities.

The rules adopted on the basis of this Article shall be without prejudice to the specific rules laid down in Article 25a of the Treaty on European Union.

***

Comparing the Lisbon Treaty provision, we start with the existing Article 286 TEC being replaced (in the latest consolidated version of the current TEU and TEC, OJ 29.12.2006 C 321 E/171):

Article 286 TEC

1. From 1 January 1999, Community acts on the protection of individuals with regard to the processing of personal data and the free movement of such data shall apply to the institutions and bodies set up by, or on the basis of, this Treaty.

2. Before the date referred to in paragraph 1, the Council, acting in accordance with the procedure referred to in Article 251, shall establish an independent supervisory body responsible for monitoring the application of such Community acts to Community institutions and bodies and shall adopt any other relevant provisions as appropriate.

***

The European Convention proposed the following Article I-50 under Title VI The democratic life of the Union of the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/20):

Article I-50 Draft Constitution
Protection of personal data

1. Everyone has the right to the protection of personal data concerning him or her.

2. A European law shall lay down the rules relating to the protection of individuals with regard to the processing of personal data by Union Institutions, bodies and agencies, and by the Member States when carrying out activities which come under the scope of Union law, and the rules relating to the free movement of such data. Compliance with these rules shall be subject to the control of an independent authority.

***

The IGC 2004 took up the proposal of the European Convention, and in the Treaty establishing a Constitution for Europe we find Article I-51, under Title VI The democratic life of the Union (OJ 16.12.2004 C 310/36):

Article I-51 Constitution
Protection of personal data

1. Everyone has the right to the protection of personal data concerning him or her.

2. European laws or framework laws shall lay down the rules relating to the protection of individuals with regard to the processing of personal data by Union institutions, bodies, offices and agencies, and by the Member States when carrying out activities which fall within the scope of Union law, and the rules relating to the free movement of such data. Compliance with these rules shall be subject to the control of independent authorities.

***

The IGC 2004 wanted to make clear that national security may override personal data protection sensitivities, and agreed on a declaration (OJ 16.12.2004 C 310/423):

10. Declaration on Article I-51 (Constitution)

The Conference declares that, whenever rules on protection of personal data to be adopted on the basis of Article I-51 could have direct implications for national security, due account will have to be taken of the specific characteristics of the matter. It recalls that the legislation presently applicable (see in particular Directive 95/46/EC) includes specific derogations in this regard.

***

Although the basis for Community legislation exists, the wording of the current TEC is badly dated. The draft Constitution and the Constitution and the TFEU seem to be essentially equal. The Lisbon Treaty follows in their footsteps, but adds a second subparagraph to paragraph 2, with a referral to a new TEU provision we have visited earlier on specific rules concerning Chapter 2 Specific provisions on the common foreign and security policy (OJ 17.12.2007 C 306/31):

Article 25a TEU (ToL), renumbered Article 39 TEU

In accordance with Article 16 B of the Treaty on the Functioning of the European Union and by way of derogation from paragraph 2 thereof, the Council shall adopt a decision laying down the rules relating to the protection of individuals with regard to the processing of personal data by the Member States when carrying out activities which fall within the scope of this Chapter, and the rules relating to the free movement of such data. Compliance with these rules shall be subject to the control of independent authorities.

***

The IGC 2007 added two declarations of relevance here (OJ 17.12.2007 C 306/255). Declaration 20 lays stress on national security, and in substance repeats the text of the IGC 2004 declaration, although the TFEU referral and the new specific CFSP provision have been introduced:

20. Declaration on Article 16 B of the Treaty on the Functioning of the European Union

The Conference declares that, whenever rules on protection of personal data to be adopted on the basis of Article 15a could have direct implications for national security, due account will have to be taken of the specific characteristics of the matter. It recalls that the legislation presently applicable (see in particular Directive 95/46/EC) includes specific derogations in this regard.

***

The other IGC 2007 declaration concerns raises another area of concern for the member states, judicial cooperation in criminal matters and police cooperation:


21. Declaration on the protection of personal data in the fields of judicial cooperation in criminal matters and police cooperation

The Conference acknowledges that specific rules on the protection of personal data and the free movement of such data in the fields of judicial cooperation in criminal matters and police cooperation based on Article 16 B of the Treaty on the Functioning of the European Union may prove necessary because of the specific nature of these fields.

***

Article 8 of the Charter of Fundamental Rights of the European Union provides for the protection of personal data (OJ 14.12.2007 C 303/4):

Article 8 Charter
Protection of personal data

1. Everyone has the right to the protection of personal data concerning him or her.

2. Such data must be processed fairly for specified purposes and on the basis of the consent of the person concerned or some other legitimate basis laid down by law. Everyone has the right of access to data which has been collected concerning him or her, and the right to have it rectified.

3. Compliance with these rules shall be subject to control by an independent authority.

***

The Explanations relating to the Charter of Fundamental Rights traces the Charter provision back to its origins (OJ 14.12.2007 C 303/20):

Explanation on Article 8 — Protection of personal data

This Article has been based on Article 286 of the Treaty establishing the European Community and Directive 95/46/EC of the European Parliament and of the Council on the protection of individuals with regard to the processing of personal data and on the free movement of such data (OJ L 281, 23.11.1995, p. 31) as well as on Article 8 of the ECHR and on the Council of Europe Convention of 28 January 1981 for the Protection of Individuals with regard to Automatic Processing of Personal Data, which has been ratified by all the Member States. Article 286 of the EC Treaty is now replaced by Article 16 of the Treaty on the Functioning of the European Union and Article 39 of the Treaty on European Union. Reference is also made to Regulation (EC) No 45/2001 of the European Parliament and of the Council on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data (OJ L 8, 12.1.2001, p. 1). The above-mentioned Directive and Regulation contain conditions and limitations for the exercise of the right to the protection of personal data.

***

Those who want to dig deeper could start their study of secondary legislation with the European Commission’s web pages on Freedom, Security and Justice, with Data Protection, Legislative documents:

http://ec.europa.eu/justice_home/fsj/privacy/law/index_en.htm

***

The EurActiv 14 February 2008 news story “US air security plans ‘unacceptable’, says EU” on transatlantic tensions and a crumbling EU front is just one topical example of an area, which looks set to engage EU institutions, member state governments, NGOs and courts of justice in the years to come:

http://www.euractiv.com/en/transport/us-air-security-plans-unacceptable-eu/article-170303

Privacy or personal data protection issues concern every citizen of the European Union.


Ralf Grahn

EU TFEU: Openness, transparency and access to documents

It looks like a contradiction in terms: The intergovernmental conference, in secret, produces inaccessible amending treaties for the European Union, but meant to improve good governance, legislation in public, the participation of civil society, as well as openness and transparency.

The Council then refuses to publish readable, consolidated versions of the Lisbon Treaty, to further underline the chasm between principles and practices.

Whatever it is, I fear European leaders even when they bring gifts.

***

Let nobody deny the intergovernmental conference a keen sense of humour. In the Treaty of Lisbon (ToL) the IGC 2007 documented its determination to promote good governance, the participation of civil society, openness and transparency as follows (Official Journal 17.12.2007 C 306/49-50):

28) An Article 16 A shall be inserted, with the wording of Article 255; it shall be amended as
follows:

(a) paragraph 1 shall be preceded by the following text, paragraph 1 being renumbered 3 and paragraphs 2 and 3 becoming subparagraphs:

‘1. In order to promote good governance and ensure the participation of civil society, the Union institutions, bodies, offices and agencies shall conduct their work as openly as possible.

2. The European Parliament shall meet in public, as shall the Council when considering and voting on a draft legislative act.’;

(b) in paragraph 1, renumbered 3, which shall become the first subparagraph of paragraph 3, a change shall be made to the French which does not concern the English version. The words ‘European Parliament, Council and Commission documents’ shall be replaced by ‘documents of the Union institutions, bodies, offices and agencies, whatever their medium’ and the words ‘paragraphs 2 and 3’ shall be replaced by the words ‘this paragraph’;

(c) in paragraph 2, which shall become the second subparagraph of paragraph 1, renumbered 3, the words ‘by means of regulations’ shall be inserted after ‘shall be determined by the Council’ and the words ‘within two years of the entry into force of the Treaty of Amsterdam’ shall be deleted;

(d) in paragraph 3, which shall become the third subparagraph of paragraph 1, renumbered 3, the words ‘referred to above shall elaborate’ shall be replaced by ‘shall ensure that its proceedings are transparent and shall elaborate’, the words ‘, in accordance with the regulations referred to in the second subparagraph’ shall be inserted at the end of the subparagraph and the following two new subparagraphs shall be added:

‘The Court of Justice of the European Union, the European Central Bank and the European Investment Bank shall be subject to this paragraph only when exercising their administrative tasks.

The European Parliament and the Council shall ensure publication of the documents relating to the legislative procedures under the terms laid down by the regulation referred to in the second subparagraph.’.

***

The amended Article is based on of the current Article 255 of the Treaty establishing the European Community (TEC), so the missing link is found in the latest consolidated version of the treaties in OJ 29.12.2006 C 321 E/156-157:

Article 255 TEC

1. Any citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, shall have a right of access to European Parliament, Council and Commission documents, subject to the principles and the conditions to be defined in accordance with paragraphs 2 and 3.

2. General principles and limits on grounds of public or private interest governing this right of access to documents shall be determined by the Council, acting in accordance with the procedure referred to in Article 251 within two years of the entry into force of the Treaty of Amsterdam.

3. Each institution referred to above shall elaborate in its own Rules of Procedure specific provisions regarding access to its documents.

***

A few moments of happy tinkering are needed to open up the noble intentions of the IGC 2007, and to produce a consolidated version of the new Article 16a of the Treaty on the Functioning of the European Union (TFEU ToL). Under Part One Principles, Title II Provisions having general application, we should have the following new or amended provision, although it is extremely easy to miss a horizontal amendment or to make some other mistake:

Article 16a TFEU (ToL), after renumbering Article 15 TFEU

1. In order to promote good governance and ensure the participation of civil society, the Union institutions, bodies, offices and agencies shall conduct their work as openly as possible.

2. The European Parliament shall meet in public, as shall the Council when considering and voting on a draft legislative act.

3. Any citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, shall have a right of access to documents of the Union institutions, bodies, offices and agencies, whatever their medium, subject to the principles and the conditions to be defined in accordance with this paragraph.

General principles and limits on grounds of public or private interest governing this right of access to documents shall be determined by the European Parliament and the Council by means of regulations, acting in accordance with the ordinary legislative procedure.

Each institution, body, office or agency shall ensure that its proceedings are transparent and shall elaborate in its own Rules of Procedure specific provisions regarding access to its documents, in accordance with the regulations referred to in the second subparagraph.

The Court of Justice of the European Union, the European Central Bank and the European Investment Bank shall be subject to this paragraph only when exercising their administrative tasks.

The European Parliament and the Council shall ensure publication of the documents relating to the legislative procedures under the terms laid down by the regulation referred to in the second subparagraph.

***

The European Convention, in Part I, Title VI The democratic life of the Union, proposed the following Article I-49 of the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/20):


Article 49 Draft Constitution
Transparency of the proceedings of Union Institutions

1. In order to promote good governance and ensure the participation of civil society, the Union Institutions, bodies and agencies shall conduct their work as openly as possible.

2. The European Parliament shall meet in public, as shall the Council of Ministers when examining and adopting a legislative proposal.

3. Any citizen of the Union, and any natural or legal person residing or having its registered office in a Member State shall have a right of access to documents of the Union Institutions, bodies and agencies in whatever form they are produced, in accordance with the conditions laid down in Part III.
4. A European law shall lay down the general principles and limits which, on grounds of public or private interest, govern the right of access to such documents.

5. Each Institution, body or agency referred to in paragraph 3 shall determine in its own rules of procedure specific provisions regarding access to its documents, in accordance with the European law referred to in paragraph 4.

***

In addition, Article III-305 of the draft Constitution, under Part III The policies and functioning of the Union, Title VI The functioning of the Union, Section 4 Provisions common to Union institutions, bodies and agencies, is of interest (OJ 18.7.2003 C 169/85):

Article III-305 Draft Constitution

1. The Institutions, bodies and agencies of the Union shall recognise the importance of transparency in their work and shall, in application of Article I-49, lay down in their rules of procedure the specific provisions for public access to documents. The Court of Justice and the European Central Bank shall be subject to the provisions of Article I-49(3) when exercising their administrative tasks.

2. The European Parliament and the Council of Ministers shall ensure publication of the documents relating to the legislative procedures.

***

For easy comparison we take retrieve the main corresponding provisions of the Treaty establishing a Constitution for Europe. First, in Part I, Title VI The democratic life of the Union, Article I-50 (OJ 16.12.2004 C 310/35):

Article I-50 Constitution
Transparency of the proceedings of Union institutions, bodies, offices and agencies

1. In order to promote good governance and ensure the participation of civil society, the Union institutions, bodies, offices and agencies shall conduct their work as openly as possible.

2. The European Parliament shall meet in public, as shall the Council when considering and voting on a draft legislative act.

3. Any citizen of the Union, and any natural or legal person residing or having its registered office in a Member State shall have, under the conditions laid down in Part III, a right of access to documents of the Union institutions, bodies, offices and agencies, whatever their medium.

European laws shall lay down the general principles and limits which, on grounds of public or private interest, govern the right of access to such documents.

4. Each institution, body, office or agency shall determine in its own rules of procedure specific provisions regarding access to its documents, in accordance with the European laws referred to in paragraph 3.

***

Second, we fetch Article III-399 of the Constitutional Treaty, in Part III The policies and functioning of the Union, Title VI The functioning of the Union, Chapter I Provisions governing the institutions, Section 4 Provisions common to the Union institutions, bodies, offices and agencies (OJ 16.12.2004 C 310/172):


Article III-399 Constitution

1. The institutions, bodies, offices and agencies of the Union shall ensure transparency in their work and shall, pursuant to Article I-50, determine in their rules of procedure specific provisions for public access to their documents. The Court of Justice of the European Union, the European Central Bank and the European Investment Bank shall be subject to the provisions of Article I-50(3) and to this Article only when exercising their administrative tasks.

2. The European Parliament and the Council shall ensure publication of the documents relating to the legislative procedures under the terms laid down by the European law referred to in Article I-50(3).

***

Having served you the drafting history from the current TEC, through the draft Constitution and the Constitution, to the Lisbon Treaty, I leave it to you to compare the stages and to draw your own conclusions on how the principles of openness and transparency, including the right of access to documents, are going to advance according to the Lisbon Reform Treaty.

After all the self-congratulatory words by EU notables on the Lisbon Treaty, I prefer to ruminate on the vote this week of the European Parliament’s Committee on Budgetary Control (CONT) not to publish even a censored version of the internal audit report on a sample of MEPs’ expenses.


Ralf Grahn

EU TFEU: Animal welfare

Animal health and welfare have a direct bearing on producers and are important for consumers, but these issues also agitate campaigners for radical change. At the same time, religious beliefs or deeply rooted national or regional customs could lead to massive protests, if the European Union tried forceful unification regardless of existing sensitivities.

This means that the protection and welfare of animals is going to remain a contested area, with clashing views on how intrusive EU legislation shall become in general, and the scope for member state exceptions in sensitive questions.

The Treaty of Lisbon enhances the visibility of animal welfare and it widens the scope of protective measures to new policy fields, but the principle of subsidiarity is clearly stated to give the member states room to decide sensitive issues.

***

In the Treaty of Lisbon (ToL) the intergovernmental conference (IGC 2007) decided to insert a provision on the protection and welfare of animals into the Treaty establishing the European Community (TEC), renamed the Treaty on the Functioning of the European Union (TFEU). See OJ 17.12.2007 C 306/48:

21) An Article 6b shall be inserted, with the wording of the enacting terms of the Protocol on the protection and welfare of animals; the word ‘fisheries’ shall be inserted after ‘agriculture’, the words ‘and research’ shall be replaced by ‘research and technological development and space’, and the words ‘, since animals are sentient beings,’ shall be inserted after ‘Member States shall’.

***

Naturally, we all realise that the IGC 2007 refers to a protocol annexed to the Treaty of Amsterdam, and that it can be found in the latest consolidated version of the TEU and the TEC (OJ 29.12.2006 C 321 E/314):

Protocol (No 33)
on protection and welfare of animals (1997)

THE HIGH CONTRACTING PARTIES,

DESIRING to ensure improved protection and respect for the welfare of animals as sentient beings;

HAVE AGREED UPON the following provision which shall be annexed to the Treaty establishing the European Community,

In formulating and implementing the Community's agriculture, transport, internal market and research policies, the Community and the Member States shall pay full regard to the welfare requirements of animals, while respecting the legislative or administrative provisions and customs of the Member States relating in particular to religious rites, cultural traditions and regional heritage.

***

Now for some DIY consolidation of the new provision, given the IGC’s ‘modus operandi’: to enhance the welfare of animals while subjecting humans to unnecessary cruelty.

The provision, in Part One Principles, Title II Provisions having general application, which could well have been written in a comprehensible way by the IGC 2007, should look like this:

Article 6b TFEU (ToL), after renumbering Article 13 TFEU

In formulating and implementing the Union's agriculture, fisheries, transport, internal market, research and technological development and space policies, the Union and the Member States shall, since animals are sentient beings, pay full regard to the welfare requirements of animals, while respecting the legislative or administrative provisions and customs of the Member States relating in particular to religious rites, cultural traditions and regional heritage.

***

The European Convention proposed no corresponding Article in its draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/1).

The Convention proposed texts for a number of politically interesting protocols, but left it to the coming IGC to sort out and to update the bulk of protocols and declarations annexed to the treaties in force

Without looking deeper into the Convention proceedings, it looks as if the Protocol on protection and welfare of animals may have been intended to live on annexed to the Constitution to be.

***

In Part III The policies and functioning of the Union, Title I Provisions of general application, the IGC 2004 agreed to insert a new provision (OJ 16.12.2004 C 310/55-56):

Article III-121 Constitution

In formulating and implementing the Union's agriculture, fisheries, transport, internal market, research and technological development and space policies, the Union and the Member States shall, since animals are sentient beings, pay full regard to the requirements of animal welfare, while respecting the legislative or administrative provisions and customs of Member States relating in particular to religious rites, cultural traditions and regional heritage.

***

As far as I see, there are no other differences between the Constitution and the Lisbon Treaty than that the Constitution’s ‘requirements of animal welfare’ slipped back to ‘welfare requirements of animals’ in the Reform Treaty provision.

***

Comments by your glossator:

Although a protocol is legally binding, given a provision having general application, animal welfare gains visibility in the Treaty of Lisbon, making it easier to raise concerns when actions in certain policy areas are contemplated or debated.

The Lisbon Treaty broadens the scope of the provision by adding fisheries, research and technological development and space policies to the policy areas mentioned in Protocol 33.

On the other hand, the provision continues to leave ample scope for exceptions based on respect for ‘the legislative or administrative provisions and customs of Member States relating in particular to religious rites, cultural traditions and regional heritage’.

Depending on national sensitivities, religious slaughter practices, bullfighting, as well as hunting and other customs are given leeway until, if ever, public opinion and politicians are ready for reform.

***

For a first look at what the European Community has done in the field of animal welfare, you can access the different web pages under the icon Animal Welfare, offered by DG Health and Consumer Protection, starting with, for instance:

http://ec.europa.eu/food/animal/welfare/actionplan/actionplan_en.htm

***

Perhaps this was enough as an introduction for readers as sentient beings.


Ralf Grahn

EU TFEU: Consumer protection

Can things change without changing the wording? The structure or interrelation between different parts of the EU treaties may seem an arcane hobby, apt to send anyone but a constitutional lawyer to sleep.

But let us take an example of how, arguably, the interests of citizens, the speeches of politicians and the actions of NGOs may be influenced by hardly noticeable change.

No change of wording, but a different perception leading to qualitative change.

***

In the Treaty of Lisbon (ToL) the intergovernmental conference (IGC 2007) inserted an Article 6a into the Treaty establishing the European Community (TEC), renamed the Treaty on the Functioning of the European Union (TFEU). We are given directions as to the contents in OJ 17.12.2007 C 306/48:

20) An Article 6a shall be inserted, with the wording of Article 153(2).

***

Study of the current treaties is never amiss, so we look up the TEC (in the latest consolidated version of the TEU and the TEC in OJ 29.12.2006 C 321 C E/116:

Article 153(2) TEC

2. Consumer protection requirements shall be taken into account in defining and implementing other Community policies and activities.

***

Our diligent work, which I hope has been repeated for every Article by each participant in the IGC 2007 and every ‘no’ voter in France and the Netherlands, has brought its own reward: We are delighted to realise that the Lisbon Treaty places a provision on consumer protection among the provisions having general application (Title II) in the TFEU:

Article 6a TFEU (ToL), to be renumbered Article 12 TFEU

Consumer protection requirements shall be taken into account in defining and implementing other Community policies and activities.

***

The European Convention had the commendable objective to offer us a unified and readable treaty. In Part III The policies and functioning of the Union, Title I Clauses of general application, there was Article III-5 of the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/29), with the familiar text:

Article III-5 Draft Constitution

Consumer protection requirements shall be taken into account in defining and implementing other Union policies and activities.

***

The IGC 2004 preserved this laudatory aim of the Convention in the Treaty establishing a Constitution for Europe, where Part III The policies and functioning of the Union, Title I Provisions of general application, contained Article III-120 (OJ 16.12.2004 C 310/55) on consumer protection:

Article III-120 Constitution

Consumer protection requirements shall be taken into account in defining and implementing other Union policies and activities.

***

We find exactly the same wording in every version, from the current TEC to the Lisbon Treaty, but from a systematic point of view the ordering of horizontal or transversal provisions, having general application, improves clarity and readability of all the treaty versions from the draft Constitution onwards, and helps to enhance the visibility of every general provision.

It is easier to use these provisions having general application as a check list for every proposed legislative act, regardless of area, and raise them in legal and political debate, than if the text of each of them was tucked away in its own niche, like the provision on consumer protection we followed.

I submit that there is a qualitative change, although the wording is unchanged.

***

What about substance?

Those who want an overview of European Community policies and activies in the field of consumer affairs can start from the Europa web pages, Activities of the European Union, Summaries of legislation, Consumers:

http://europa.eu/scadplus/leg/en/s16000.htm

‘Consumers: Introduction’ offers four pages of background on how consumer protection has evolved in the EC, although the pages have last been updated 16 August 2006 and still speak of an EU-25 as a novelty:

http://europa.eu/scadplus/leg/en/lvb/l32000.htm

***

Consumer protection is of interest to 490 million citizens and consumers as well as to most businesses operating in or trading with the European Union.



Ralf Grahn

EU TFEU: Environmental protection

Environmental protection and sustainable development need action from the individual to the global level, with the European Union an increasingly important actor in between.

Every policy and activity of the EU can and should be scrutinised from these angles.

***

In the Treaty of Lisbon (ToL) the intergovernmental conference gives us this stirring lead in the Treaty establishing the European Community (TEC), renamed the Treaty on the Functioning of the European Union (TFEU). See OJ 17.12.2007 C 306/48:

19) In Article 6, the words ‘referred to in Article 3’ shall be deleted.

***

Should the Lisbon Treaty never enter into force, we have cause to be grateful for the incentive offered by the IGC 2007 to study the existing treaties we would be stuck with.

Here is Article 6 TEC (taken from the latest consolidated version of the current TEU and TEC, published in OJ 29.12.2006 C 321 E/46:

Article 6 TEC

Environmental protection requirements must be integrated into the definition and implementation
of the Community policies and activities referred to in Article 3, in particular with a view to
promoting sustainable development.

***

Bearing in mind that ’Community’ and ’European Community’ belong to the terms marked for extinction under horizontal amendments, and following the instructions handed out, we arrive at the following consolidated text, under Title II Provisions having general application (throughout the treaty):

Article 6 TFEU (ToL), after renumbering Article 11 TFEU

Environmental protection requirements must be integrated into the definition and implementation of the Union policies and activities, in particular with a view to promoting sustainable development.

***

Never mind that the current TEC and the agreed TFEU are substantially the same. Intrepid warriors want to know what that proponent of European democracy, Valéry Giscard d’Estaing, and the European Convention he led, proposed in the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/29):

Article III-4 Draft Constitution

Environmental protection requirements must be integrated into the definition and implementation of the Union policies and activities referred to in this Part, in particular with a view to promoting sustainable development.

***

What did the previous IGC 2004 agree on in the Treaty establishing a Constitution for Europe? A quick look in OJ 16.12.2004 C 310/55:

Article III-119 Constitution

Environmental protection requirements must be integrated into the definition and implementation of the policies and activities referred to in this Part, in particular with a view to promoting sustainable development.

***

Everybody should now be happy: The ones who contend that the Lisbon Treaty is practically the same as the Constitution (and the draft Constitution) can point to identical wording. Those who want to underline the pious rewording of an amending treaty find satisfaction in the substantial similarity between the TEC and the agreed TFEU.

Splendid!

***

What the Europa Glossary has to say about the environment:

http://europa.eu/scadplus/glossary/environment_en.htm

Further reading on the EU and environmental protection:

http://europa.eu/scadplus/leg/en/s15000.htm


For the Europa Glossary introduction to sustainable development:

http://europa.eu/scadplus/glossary/sustainable_development_en.htm

A primer on sustainable development:

http://europa.eu/scadplus/leg/en/s15001.htm

***

If sustainable development meets the needs of the present generation without compromising the ability of future generations to meet their own needs, there are least three important aspects to sustainability: environmental, economic and social-political.

Between the competing claims of growth and prosperity now on the one hand and needs of future generations on the other hand, European regulation and legislation is never going to be boring.

It might even merit the efforts of the best and the brightest.


Ralf Grahn

EU TFEU: They work for us?

How should you approach the Treaty of Lisbon? Is it the rehashed Constitution, or should we rather look at how the Lisbon Treaty amends and improves the existing EU and EC Treaties?

***

In the Treaty of Lisbon (ToL) the intergovernmental conference (IGC 2007) decided to insert a new provision having general application into the Treaty establishing the European Community (TEC), renamed the Treaty on the Functioning of the European Union (TFEU). See OJ 17.12.2007 C 306/48:

17) The following Article 5a shall be inserted:

Article 5a TFEU (ToL), to be renumbered Article 9 TFEU

In defining and implementing its policies and activities, the Union shall take into account requirements linked to the promotion of a high level of employment, the guarantee of adequate social protection, the fight against social exclusion, and a high level of education, training and protection of human health.

***

This provision did not appear out of the blue, so we take a look at what the IGC 2004 agreed on three years earlier. In the Treaty establishing a Constitution for Europe, Part III The policies and functioning of the Union, Title I Provisions of general application, we find the following Article III-117 (OJ 16.12.2004 C 310/55):

Article III-117

In defining and implementing the policies and actions referred to in this Part, the Union shall take into account requirements linked to the promotion of a high level of employment, the guarantee of adequate social protection, the fight against social exclusion, and a high level of education, training and protection of human health.

***

The resemblance between the Constitution and the Lisbon Treaty is striking, but contrary to most instances we would look in vain for a corresponding Article proposed by the European Convention in the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169).

Here the IGC 2004 filled a void between the EU’s objectives on the one hand and its policies and actions on the other hand.

Thus, the IGC 2004 can be seen as the true originator of this provision, giving us an example of one of the few improvements authored by the intergovernmental conference when compared to the draft proposed by the European Convention.

***

We can now change tack, to offer another explanation of the new Article in the Lisbon Treaty. Given that the Lisbon Reform Treaty amends the existing Treaty on European Union (TEU) and the TEC, the origins of a provision can be sought in the current treaties.

This is what the UK Foreign and Commonwealth Office does in its Command Paper 7311 A comparative table of the current EC and EU Treaties as amended by the Treaty of Lisbon, concerning Article 9 (5a) TFEU (page 6):

“Draws on Article 2 TEU, and Articles 2, 127, 136, 137, 140, 149, 150 and 152 TEC.”

Earlier, the Explanatory Note has given us the following definition:

“Draws on – where a provision takes elements of existing provisions”

***

The diligent student may want to trace the elements from each of the Articles mentioned, but we are content to present the two main provisions for the sake of comparison, and as a convenient excuse to refresh our memory concerning the treaties in force.

First, we turn to the current Article 2 TEU on the Union’s objectives under Title I Common provisions (in the latest consolidated version, to be found in OJ 29.12.2006 C 321 E/11):

Article 2 TEU

The Union shall set itself the following objectives:

— to promote economic and social progress and a high level of employment and to achieve balanced and sustainable development, in particular through the creation of an area without internal frontiers, through the strengthening of economic and social cohesion and through the establishment of economic and monetary union, ultimately including a single currency in accordance with the provisions of this Treaty,

— to assert its identity on the international scene, in particular through the implementation of a common foreign and security policy including the progressive framing of a common defence policy, which might lead to a common defence, in accordance with the provisions of Article 17,

— to strengthen the protection of the rights and interests of the nationals of its Member States through the introduction of a citizenship of the Union,

— to maintain and develop the Union as an area of freedom, security and justice, in which the free movement of persons is assured in conjunction with appropriate measures with respect to external border controls, asylum, immigration and the prevention and combating of crime,

— to maintain in full the acquis communautaire and build on it with a view to considering to what extent the policies and forms of cooperation introduced by this Treaty may need to be revised with the aim of ensuring the effectiveness of the mechanisms and the institutions of the Community.

The objectives of the Union shall be achieved as provided in this Treaty and in accordance with the conditions and the timetable set out therein while respecting the principle of subsidiarity as defined in Article 5 of the Treaty establishing the European Community.

***

Second, we rehearse the current Article 2 TEC, in Part One, Principles (OJ, page 44):

Article 2 TEC

The Community shall have as its task, by establishing a common market and an economic and monetary union and by implementing common policies or activities referred to in Articles 3 and 4, to promote throughout the Community a harmonious, balanced and sustainable development of economic activities, a high level of employment and of social protection, equality between men and women, sustainable and non-inflationary growth, a high degree of competitiveness and convergence of economic performance, a high level of protection and improvement of the quality of the environment, the raising of the standard of living and quality of life, and economic and social cohesion and solidarity among Member States.

***

Without advancing further into the provisions mentioned by Cm 7311, we notice that the objectives of the EU, with the catch-all phrase of ‘economic and social progress’ and ‘a high level of employment’ as well as ‘economic and social cohesion’, and the tasks of the EC with ‘a harmonious, balanced and sustainable development of economic activities, a high level of employment and of social protection’ offer us enough to go on to believe that the rest of Article 5a TFEU (ToL) can plausibly be explained to draw on the provisions mentioned.

In conclusion, we can say that the comparison depends on your choice of angle.

***

There are undeniable similarities between the Constitution and the Lisbon Treaty, since the objective of the IGC 2007 was to preserve much of the advances made by the IGC 2004.

On the other hand, the readers of a book or the audience at a concert are usually more interested in the work published or performed than in the various drafts or the stages of rehearsal that preceded their experience. These are, more often than not, the domain of literary researchers or musicologists, not the public at large.

***

Regardless, I presume that ‘a high level of employment, the guarantee of adequate social protection, the fight against social exclusion, and a high level of education, training and protection of human health’ would find favour with most citizens of the European Union.

Can we truly say of the institutions of the EU: They work for us?


Ralf Grahn


Source:

Foreign and Commonwealth Office: A comparative table of the current EC and EU Treaties as amended by the Treaty of Lisbon; Command Paper (Cm) 7311; 21 January 2008;
http://www.official-documents.gov.uk/document/cm73/7311/7311.asp

EU TFEU: Gender equality

A new European political star was born. In retrospect the defining moment must have been when she addressed a packed audience at her final election rally with these resounding words:

If I am elected, I am going to do my utmost to repeal paragraph 1 of Article 3, leave paragraph 2 unnumbered and replace the words ‘the activities referred to in this Article’ by ‘its activities’.

[Wild cheers.]

***

Am I pulling your leg? Yes and no.

No politician in her right mind would address even her most devoted followers like this.

On the other hand, this is the direct result of the decisions made by the leading lights of European Union politics, the heads of state or government.

Unbelievable, you say. You need proof, do you?

Can there be anything more convincing than the verification offered by the Official Journal on the unanimous agreement of our national leaders?

***

Here is what the intergovernmental conference (IGC 2007) had to say in the Treaty of Lisbon (ToL) on Article 3 of the Treaty establishing the European Community (TEC), renamed the Treaty on the Functioning of the European Union (TFEU). See OJ 17.12.2007 C 306/48:

14) Paragraph 1 of Article 3 shall be repealed. Paragraph 2 shall be left unnumbered, and the words ‘the activities referred to in this Article,’ shall be replaced by ‘its activities,’.

***

You are excused if you have not grasped their noble intentions. For that we need an excerpt from the current Article 3 TEC (in the latest consolidated version of the TEU and the TEC, OJ 29.12.2006 C 321 E/44-45):

Article 3 TEC

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;

(e) a common policy in the sphere of agriculture and fisheries;

(f) a common policy in the sphere of transport;

(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;

(i) the promotion of coordination between employment policies of the Member States with a view to enhancing their effectiveness by developing a coordinated strategy for employment;

(j) a policy in the social sphere comprising a European Social Fund;

(k) the strengthening of economic and social cohesion;

(l) a policy in the sphere of the environment;

(m) the strengthening of the competitiveness of Community industry;

(n) the promotion of research and technological development;

(o) encouragement for the establishment and development of trans-European networks;

(p) a contribution to the attainment of a high level of health protection;

(q) a contribution to education and training of quality and to the flowering of the cultures of
the Member States;

(r) a policy in the sphere of development cooperation;

(s) the association of the overseas countries and territories in order to increase trade and promote jointly economic and social development;

(t) a contribution to the strengthening of consumer protection;

(u) measures in the spheres of energy, civil protection and tourism.

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.

***

What a delightful way to refresh our memories concerning the existing activities of the European Community (EC), rewritten elsewhere in the Lisbon Treaty.

Having scrapped paragraph 1 and eliminated the number from paragraph 2, we seem to end up with the following:

Article 3 TFEU (ToL), to be renumbered Article 8 TFEU

In all its activities, the Union shall aim to eliminate inequalities, and to promote equality, between men and women.

***

We have a sentence which makes sense. Rather noble and delightful in the end, don’t you agree?

However demanding the quest for equality, one could almost say of the IGC 2007: Easier done than said.

***

We take a look at the intermediary stages, with the European Convention and its draft Treaty establishing a Constitution for Europe, under Title I Clauses of general application (OJ 18.7.2003 C 169/29):

Article III-2

In all the activities referred to in this Part, the Union shall aim to eliminate inequalities, and to promote equality, between men and women.

***

We turn to the Treaty establishing a Constitution for Europe, where the corresponding Article is (OJ 16.12.2004 C 310/55):

Article III-116

In all the activities referred to in this Part, the Union shall aim to eliminate inequalities, and to
promote equality, between women and men.

***

We have seen that we have an unbroken line of provisions from the current TEC, via the draft Constitution and the Constitution until the Lisbon Reform Treaty.

Article 3 TFEU (ToL) addresses all of the institutions and all of the activities of the EU.

Eliminating gender inequality (sex discrimination) is a general principle of Union law.

Promotion of equality requires positive action and secondary legislation.



***

Domestic violence

The Lisbon Treaty takes up a third aspect of gender equality at a political level.

The Final Act of the Treaty of Lisbon contains the relevant Declaration 19, which the IGC 2007 took over word for word from the Constitutional Treaty (where it was numbered 13. Declaration on Article III-116). See OJ 17.12.2007 C 306/255:

19. Declaration on Article 3 of the Treaty on the Functioning of the European Union

The Conference agrees that, in its general efforts to eliminate inequalities between women and men, the Union will aim in its different policies to combat all kinds of domestic violence. The Member States should take all necessary measures to prevent and punish these criminal acts and to support and protect the victims.

***

Part and parcel of the EU legal system, gender equality is something every acceding country has to buy into.


Ralf Grahn

EU TFEU: Consistency

Today we start to look at a new Title in the Treaty of Lisbon, with Provisions having general application, meaning that they apply across the Treaty on the Functioning of the European Union (TFEU).

Out of academic interest, we run a genetics test on a newborn provision.


***

In the Treaty of Lisbon (ToL) the Treaty establishing the European Community (TEC), under its new name, the Treaty on the Functioning of the European Union (TFEU), Part One of the treaty introduces a Title II Provisions having general application.

At the beginning of Title II, the intergovernmental conference (IGC 2007) inserted a new Article 2f into the Treaty of Lisbon, under (OJ 17.12.2007 C 306/47):

Article 2f TFEU (ToL), to be renumbered Article 7 TFEU

The Union shall ensure consistency between its policies and activities, taking all of its objectives
into account and in accordance with the principle of conferral of powers.

***

When we turn to the corresponding Article III-115 in the Treaty establishing a Constitution for Europe, we notice that it stands at the beginning of Part III The policies and functioning of the Union and its Title I Provisions of general application.

We have often looked at the similarities between corresponding Articles in the Lisbon Treaty, the Constitution and the draft Constitution, but here we have an opportunity to notice how much in common the different versions have structurally. Part III on the … functioning of the Union reminds us of the Treaty on the Functioning of the European Union.

And the Title level headings are almost identical between the Lisbon Treaty and the Constitution.

The likeness does not end there, as you see if you read Article III-115 of the Constitutional Treaty and notice only a small change of style (OJ 16.12.2004 C 310/55):

PART III
THE POLICIES AND FUNCTIONING OF THE UNION

TITLE I
PROVISIONS OF GENERAL APPLICATION

Article III-115

The Union shall ensure consistency between the policies and activities referred to in this Part, taking all of its objectives into account and in accordance with the principle of conferral of powers.

***

Next, our Time Machine takes us to the draft Treaty establishing a Constitution for Europe. We look at both the structure and the wording (OJ 18.7.2003 C 169/29):

PART III
THE POLICIES AND FUNCTIONING OF THE UNION

TITLE I
CLAUSES OF GENERAL APPLICATION

Article III-1

The Union shall ensure consistency between the different policies and activities referred to in this Part, taking all of the Union's objectives into account and in accordance with the principle of conferring of powers.

***

As you can see, there is not much between the three versions, and since the provision is new, it leads to the conclusion that after a few years of stagnation we might actually be allowed to benefit from the work of the European Convention.

***

The origins of Article 2f TFEU (ToL) have been attributed differently. The UK Foreign and Commonwealth Office (FCO) rounds up the widest circle of suspects, four different Articles:

“Draws on Articles 1 and 3 TEU, and Articles 5 and 7 TEC.”

The number of paternity candidates does not matter that much, although it is intriguing how a short Article like 2f TFEU can draw on such an extensive gene pool, but each of them gives us an opportunity to get acquainted with the TEU and TEC, the treaties in force. For the latest consolidated version of the current treaties we go to OJ 29.12.2006 C 321 E/1.

So, out of academic interest, let us see what Article 1 TEU has to offer:

Article 1 TEU

By this Treaty, the HIGH CONTRACTING PARTIES establish among themselves a EUROPEAN
UNION, hereinafter called ‘the Union’.

This Treaty marks a new stage in the process of creating an ever closer union among the peoples
of Europe, in which decisions are taken as openly as possible and as closely as possible to the
citizen.

The Union shall be founded on the European Communities, supplemented by the policies and
forms of cooperation established by this Treaty. Its task shall be to organise, in a manner
demonstrating consistency and solidarity, relations between the Member States and between their
peoples.

***

Article 1 TEU at least gave us ‘policies’ and ’consistency’, and Article 3 TEU mentions ‘activies’ and ‘consistency’ (thrice):

Article 3 TEU

The Union shall be served by a single institutional framework which shall ensure the consistency
and the continuity of the activities carried out in order to attain its objectives while respecting and building upon the acquis communautaire.

The Union shall in particular ensure the consistency of its external activities as a whole in the
context of its external relations, security, economic and development policies. The Council and the Commission shall be responsible for ensuring such consistency and shall cooperate to this end. They shall ensure the implementation of these policies, each in accordance with its respective powers.

***

Article 5 TEC seems to contribute with ’powers conferred’ and ‘objectives’:

Article 5 TEC

The Community shall act within the limits of the powers conferred upon it by this Treaty and of
the objectives assigned to it therein.

In areas which do not fall within its exclusive competence, the Community shall take action, in
accordance with the principle of subsidiarity, only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States and can therefore, by reason of the scale or effects of the proposed action, be better achieved by the Community.

Any action by the Community shall not go beyond what is necessary to achieve the objectives of
this Treaty.

***

Beaming with pride, Article 7 TEC lays claim to the striking family resemblance with its ‘powers conferred’:

Article 7 TEC

1. The tasks entrusted to the Community shall be carried out by the following institutions:
— a EUROPEAN PARLIAMENT,
— a COUNCIL,
— a COMMISSION,
— a COURT OF JUSTICE,
— a COURT OF AUDITORS.

Each institution shall act within the limits of the powers conferred upon it by this Treaty.

2. The Council and the Commission shall be assisted by an Economic and Social Committee
and a Committee of the Regions acting in an advisory capacity.

***

We do not know if Article 2f TFEU is going to survive the perilous times of infant mortality that EU treaties are prone to before ratification, but we know that newborn has inherited a number of its noble traits from its elders.


Ralf Grahn


Source:

Foreign and Commonwealth Office: A comparative table of the current EC and EU Treaties as amended by the Treaty of Lisbon; Command Paper (Cm) 7311; 21 January 2008;
http://www.official-documents.gov.uk/document/cm73/7311/7311.asp