Active opposition against the so called SWIFT agreement on the rendition of financial data from the European Union to the United States of America seems to be growing among experts, in the European Parliament and beyond.
One the one hand, there is the interim TFTP agreement the member states’ governments (Council) wanted to enter into force on 1 February 2010, without burdening the European Parliament with scrutiny. On the other hand, there are plans for a long term agreement, but the Council has been less than zealous in engaging the European Parliament.
Members of the EP Committee on Civil Liberties, Justice and Home Affairs (LIBE) have not taken the combination of pressure secrecy from the Council and the European Commission kindly, as seen in SWIFT interim agreement: Civil liberties Committee to vote on 4 February (27 January 2010).
The procedure file NLE/2009/0190 EU/USA agreement: processing and transfer of Financial Messaging Data for purposes of the Terrorist Finance Tracking Program on Oeil, the Legislative Observatory of the European Parliament, tells us the basic facts about the existing documents:
1) COUNCIL DECISION on the signing, on behalf of the European Union, of the Agreement between the European Union and the United States of America on the processing and transfer of Financial Messaging Data from the European Union to the United States for purposes of the Terrorist Finance Tracking Program (document 16110/09), meant to enter into force provisionally from 1 February and remaining in force until 31 October 2010. This interim agreement has been published in the Official Journal of the European Union as Council Decision 2010/16/CFSP/JHA, OJEU 13.1.2010 L 8/9 & 11.
2) The previous initial legislative document contains the Commission’s proposal on the conclusion of the TFTP Agreement; 17 December 2009; COM(2009)0703 final.
3) COUNCIL DECISION on the conclusion of the Agreement between the European Union and the United States of America on the processing and transfer of Financial Messaging Data from the European Union to the United States for purposes of the Terrorist Finance Tracking Program; dated 20 January 2010; Council document 5305/10. The meaning of the document is somewhat unclear. Is it a belated attempt by the Council to ask for the consent of the European Parliament with regard to the interim agreement after the entry into force of the Lisbon Treaty? Or is it meant to cover the planned long term agreement? Anyway, the “attached” substance of the agreement is missing.
LIBE
The LIBE Committee has been doing what such parliamentary committees are supposed to do: gathering information about the impact of the TFTP Agreement on fundamental rights of EU citizens.
The Article 29 Data Protection Working Party (Working Party on Police and Justice) has expressed concerns on data protection grounds.
The European Data Protection Supervisor considers that not enough elements have been provided so far to justify the necessity and proportionality of such a privacy-intrusive [TFTP] agreement, which in many aspects overlaps with already existing EU and international instruments in this area.
Political reactions
Given the evidence, political reactions have continued, but they have also become sharper.
In December 2009 the liberal group ALDE pushed for an agreement with the other political groups on two conditions for EP approval: that Parliament has full access to all relevant documents and information connected to the SWIFT agreement and that Council's negotiating mandate for the longer-term agreement, to replace this interim agreement expiring by 31 October 2010, fully reflect Parliament' stated concerns in its resolution of September; in Parliament sets conditions for granting consent to SWIFT agreement (17 December 2009).
Practically all the political groups expressed concerns and conditions during the EP’s SWIFT debate on 20 January 2010.
The Greens-EFA parliamentary group has opted for rejection of the SWIFT agreement as a breach of fundamental rights, quoting home affairs spokesman Jan-Philipp Albrecht: EU-US SWIFT bank data agreement: Parliament must stop Council in its tracks (27 January 2010).
The Pirate Party is going to vote for rejection of the SWIFT Agreement in the European Parliament, says Henrik Alexandersson, who posts a press release (in Swedish): Piratpartiet röstar nej till SWIFT-avtalet (28 January 2010).
Euroblogs
Netzpolitik.org (in German) has been keeping a close watch on the SWIFT agreement process. Recommended reading.
Piratpartiet live has aggregated a number of blog posts opposing the SWIFT agreement (mostly in Swedish). Here are but two examples:
Maloki says no to the SWIFT Agreement: Nej till SWIFT-avtalet! (28 January 2010).
Anna Troberg: Piratpartiet säger nej till SWIFT-avtalet (28 January 2010).
Ralf Grahn
P.S. Cross-border communication is a necessity in the European Union, with scrutiny by active citizens. At the same time Euroblogs are an agreeable way to brush up one’s skills in foreign languages.
Even when discussing French political and legal events, Diner’s room retains a European and human perspective well worth consideration beyond the borders of France.
Diner’s room (in French) is listed among 522 great Euroblogs (at the latest count) on growing multilingual Bloggingportal.eu, your useful one-stop-shop for fact, opinion and gossip on European affairs, i.a. politics, more than thirty policy areas, communication, economics, finance, business, civil society and law.
If you are interested in the EU or the euroblogosphere, you can also subscribe to the RSS feed for new blog posts appearing on Bloggingportal.eu.
By the way, I also discuss European issues in Finnish on Eurooppaoikeus and in Swedish on Grahnblawg.
Showing posts with label international agreement. Show all posts
Showing posts with label international agreement. Show all posts
Thursday, 28 January 2010
Thursday, 21 January 2010
European Parliament to vote on EU-USA TFTP (SWIFT) interim Agreement (Updated)
After yesterday’s debate in the European Parliament it looks like the EP and the Council have found a way forward, at least with regard to the procedure to follow. See the EP’s press release: SWIFT: European Parliament to vote soon on the interim agreement (20 January 2010).
The European Parliament will vote on the interim agreement and it will be allowed to participate fully in the drafting of the long term agreement, according to the Spanish presidency of the Council of the European Union.
The Council’s explanations about delays caused by translation sound a bit fishy, because the interim agreement should have existed in all the official EU languages on 30 November 2009, when it was adopted by the Council, and it was published in the Official Journal of the European Union 13 January 2010. If a draft or aims for the long term agreement exist, one would expect at least an English language version to be available.
The European Parliament has previously stated its concerns regarding fundamental rights. Now it looks as if it is going to be able to check how the Council intends to meet them.
Update 21 January 2010, about 17:05 EET: The EP's press release has been updated. The vote has now been scheduled for 9 February 2010.
Ralf Grahn
P.S. If business leaders, top officials and political heavyweights have a European newspaper in common, it is The Financial Times. FT bureau chief Tony Barber writes the recommendable Brussels blog (Financial Times), listed together with more than 500 great euroblogs on growing multilingual Bloggingportal.eu, your useful one-stop-shop for fact, opinion and gossip on European affairs, i.a. politics, policies, communication, economics, finance, business, civil society and law. You can also subscribe to the RSS feed for new blog posts appearing on Bloggingportal.eu.
By the way, I also discuss European issues in Finnish on Eurooppaoikeus and in Swedish on Grahnblawg.
The European Parliament will vote on the interim agreement and it will be allowed to participate fully in the drafting of the long term agreement, according to the Spanish presidency of the Council of the European Union.
The Council’s explanations about delays caused by translation sound a bit fishy, because the interim agreement should have existed in all the official EU languages on 30 November 2009, when it was adopted by the Council, and it was published in the Official Journal of the European Union 13 January 2010. If a draft or aims for the long term agreement exist, one would expect at least an English language version to be available.
The European Parliament has previously stated its concerns regarding fundamental rights. Now it looks as if it is going to be able to check how the Council intends to meet them.
Update 21 January 2010, about 17:05 EET: The EP's press release has been updated. The vote has now been scheduled for 9 February 2010.
Ralf Grahn
P.S. If business leaders, top officials and political heavyweights have a European newspaper in common, it is The Financial Times. FT bureau chief Tony Barber writes the recommendable Brussels blog (Financial Times), listed together with more than 500 great euroblogs on growing multilingual Bloggingportal.eu, your useful one-stop-shop for fact, opinion and gossip on European affairs, i.a. politics, policies, communication, economics, finance, business, civil society and law. You can also subscribe to the RSS feed for new blog posts appearing on Bloggingportal.eu.
By the way, I also discuss European issues in Finnish on Eurooppaoikeus and in Swedish on Grahnblawg.
Tuesday, 19 January 2010
Puzzling EP action over EU-USA bank data deal?
What is happening between the European Parliament and the Council? I have to admit that I was puzzled, even shocked when I saw that the EP is threatening the EU Council with political blackmail.
EUobserver reports that the European Parliament threatens to derail EU-US bank data deal (18 January 2010). According to the article, EP president Jerzy Buzek has sent a second letter to the Council, demanding more information about the so called interim SWIFT agreement, also known by the acronym TFTP (Terrorist Finance Tracking Program).
The European Parliament wants full access to information related to the interim agreement, and the EP wants its concerns to be fully reflected in the negotiating mandate for the planned long-term agreement after the end of October, writes Valentina Pop for EUobserver.com.
Late November 2009 Grahnlaw wrote about the upcoming decision of the Council of the European Union to approve the so called SWIFT Agreement to hand over European banking data to the United States, and early December we reported on the decision, taken on the last day before the Lisbon Treaty entered into force.
The Decision by the Council of the European Union on the signing of the so called SWIFT or TFTP Agreement was later officially published, which we reported on:
COUNCIL DECISION 2010/16/CFSP/JHA of 30 November 2009 on the signing, on behalf of the European Union, of the Agreement between the European Union and the United States of America on the processing and transfer of Financial Messaging Data from the European Union to the United States for purposes of the Terrorist Finance Tracking Program; Official Journal of the European Union (OJEU) 13.1.2010 L 8/9.
This contained the formal decision on signing, as well as a provision and declaration on provisional application of the Agreement.
The annexed contents of the TFTP / SWIFT Agreement were here.
Parliament v Council
The Council deliberately adopted the TFTP / SWIFT Agreement on the last day before the Lisbon Treaty entered into force and the European Parliament became more fully involved in the conclusion of international agreements. (Cf Article 218 TFEU).
The news report seems to indicate that the EP action stems from the Parliament’s desire to “be immediately and fully informed at all stages of the process” (Article 218(10) TFUE).
Fair enough, the European Parliament wants to be taken into account from day one, even if the issue may seem more like a continuation of the interim solution than a totally new agreement.
The EUobserver article also seems to indicate that the European Parliament is not convinced about the privacy and data protection guarantees for European businesses and citizens in the interim agreement.
On 17 September 2009 the European Parliament had adopted a non-legislative resolution P7_TA(2009)0016 on the envisaged international agreement to make available to the United States Treasury Department financial payment messaging data to prevent and combat terrorism and terrorism financing.
The resolution doubted if a separate agreement was the right way to proceed, given the framework of the EU-US agreement on legal assistance to enter into force on 1 January 2010, and it went on to lay down a number of “minimum” assurances the EP found necessary.
If I understand correctly, the European Parliament is not only showing off, but has procedural and substantive concerns it wants to see addressed.
At first I was a bit shocked when I read about the EP’s threat of political blackmail, but after reading the resolution I think that the Spanish presidency of the Council of the European Union should come up with a constructive and cooperative response today in Strasbourg.
The rule of law, privacy and data protection are fundamental EU values. They are not to be treated lightly, even in the combat against terrorism, the importance of which the European Parliament stressed in its resolution:
Ralf Grahn
P.S. On Verfassungsblog (in German) Max Steinbeis writes expertly on German and European issues of constitutional law. Verfassungsblog is a fine example of a specialist blog in the Euroblogosphere, listed together with more than 500 great euroblogs on growing multilingual Bloggingportal.eu, a useful one-stop-shop for fact, opinion and gossip on European affairs, i.a. politics, policies, communication, economics, finance, business, civil society and law.
By the way, euroblogs are an excellent means to brush up your foreign language skills while learning about or debating our common challenges.
EUobserver reports that the European Parliament threatens to derail EU-US bank data deal (18 January 2010). According to the article, EP president Jerzy Buzek has sent a second letter to the Council, demanding more information about the so called interim SWIFT agreement, also known by the acronym TFTP (Terrorist Finance Tracking Program).
The European Parliament wants full access to information related to the interim agreement, and the EP wants its concerns to be fully reflected in the negotiating mandate for the planned long-term agreement after the end of October, writes Valentina Pop for EUobserver.com.
Late November 2009 Grahnlaw wrote about the upcoming decision of the Council of the European Union to approve the so called SWIFT Agreement to hand over European banking data to the United States, and early December we reported on the decision, taken on the last day before the Lisbon Treaty entered into force.
The Decision by the Council of the European Union on the signing of the so called SWIFT or TFTP Agreement was later officially published, which we reported on:
COUNCIL DECISION 2010/16/CFSP/JHA of 30 November 2009 on the signing, on behalf of the European Union, of the Agreement between the European Union and the United States of America on the processing and transfer of Financial Messaging Data from the European Union to the United States for purposes of the Terrorist Finance Tracking Program; Official Journal of the European Union (OJEU) 13.1.2010 L 8/9.
This contained the formal decision on signing, as well as a provision and declaration on provisional application of the Agreement.
The annexed contents of the TFTP / SWIFT Agreement were here.
Parliament v Council
The Council deliberately adopted the TFTP / SWIFT Agreement on the last day before the Lisbon Treaty entered into force and the European Parliament became more fully involved in the conclusion of international agreements. (Cf Article 218 TFEU).
The news report seems to indicate that the EP action stems from the Parliament’s desire to “be immediately and fully informed at all stages of the process” (Article 218(10) TFUE).
Fair enough, the European Parliament wants to be taken into account from day one, even if the issue may seem more like a continuation of the interim solution than a totally new agreement.
The EUobserver article also seems to indicate that the European Parliament is not convinced about the privacy and data protection guarantees for European businesses and citizens in the interim agreement.
On 17 September 2009 the European Parliament had adopted a non-legislative resolution P7_TA(2009)0016 on the envisaged international agreement to make available to the United States Treasury Department financial payment messaging data to prevent and combat terrorism and terrorism financing.
The resolution doubted if a separate agreement was the right way to proceed, given the framework of the EU-US agreement on legal assistance to enter into force on 1 January 2010, and it went on to lay down a number of “minimum” assurances the EP found necessary.
If I understand correctly, the European Parliament is not only showing off, but has procedural and substantive concerns it wants to see addressed.
At first I was a bit shocked when I read about the EP’s threat of political blackmail, but after reading the resolution I think that the Spanish presidency of the Council of the European Union should come up with a constructive and cooperative response today in Strasbourg.
The rule of law, privacy and data protection are fundamental EU values. They are not to be treated lightly, even in the combat against terrorism, the importance of which the European Parliament stressed in its resolution:
Recalls its determination to fight terrorism and its firm belief in the need to strike the right balance between security measures and the protection of civil liberties and fundamental rights, while ensuring the utmost respect for privacy and data protection; reaffirms that necessity and proportionality are key principles without which the fight against terrorism will never be effective.
Ralf Grahn
P.S. On Verfassungsblog (in German) Max Steinbeis writes expertly on German and European issues of constitutional law. Verfassungsblog is a fine example of a specialist blog in the Euroblogosphere, listed together with more than 500 great euroblogs on growing multilingual Bloggingportal.eu, a useful one-stop-shop for fact, opinion and gossip on European affairs, i.a. politics, policies, communication, economics, finance, business, civil society and law.
By the way, euroblogs are an excellent means to brush up your foreign language skills while learning about or debating our common challenges.
Wednesday, 20 May 2009
EU: Free movement Switzerland (Bulgaria & Romania)
The Swiss Confederation is the one EFTA country, which is not a member of the European Economic Area (EEA) ─ as are Iceland, Liechtenstein and Norway ─ so closer relations with the European Union and its member states have been built gradually on the basis of bilateral (and plurilateral) agreements.
The Wikipedia overview article Switzerland and the European Union (latest update 19 May 2009) describes the Swiss Confederation as a virtual member of the EEA or even the EU. (Despite the so called Guillotine Clause, given the importance of referendums in the Swiss constitutional system, the “even the EU” could be seen as an exaggeration.)
***
Accession and free movement
From the point of view of the European Union, the extension of free movement to Switzerland with regard to the latest EU entrants Bulgaria and Romania is now confirmed by the official publication of the relevant documents.
Council Decision
The first document is the formal Council Decision 2009/392/EC of 27 November 2008 on the conclusion, on behalf of the European Community and its Member States, of a Protocol to the Agreement between the European Community and its Member States, of the one part, and the Swiss Confederation, of the other, on the free movement of persons regarding the participation, as contracting parties of the Republic of Bulgaria and Romania pursuant to their accession to the European Union, published in the Official Journal of the European Union (OJEU) 20.5.2009 L 124/51.
***
Protocol
The second document is the Protocol to the Agreement between the European Community and its Member States, of the one part, and the Swiss Confederation, of the other, on the free movement of persons, regarding the participation, as contracting parties of the Republic of Bulgaria and Romania pursuant to their accession to the European Union, published OJEU 20.5.2009 L 124/53.
The Protocol, to be ratified, contains the substantial provisions, including the transitional clauses (limitations).
Ralf Grahn
The Wikipedia overview article Switzerland and the European Union (latest update 19 May 2009) describes the Swiss Confederation as a virtual member of the EEA or even the EU. (Despite the so called Guillotine Clause, given the importance of referendums in the Swiss constitutional system, the “even the EU” could be seen as an exaggeration.)
***
Accession and free movement
From the point of view of the European Union, the extension of free movement to Switzerland with regard to the latest EU entrants Bulgaria and Romania is now confirmed by the official publication of the relevant documents.
Council Decision
The first document is the formal Council Decision 2009/392/EC of 27 November 2008 on the conclusion, on behalf of the European Community and its Member States, of a Protocol to the Agreement between the European Community and its Member States, of the one part, and the Swiss Confederation, of the other, on the free movement of persons regarding the participation, as contracting parties of the Republic of Bulgaria and Romania pursuant to their accession to the European Union, published in the Official Journal of the European Union (OJEU) 20.5.2009 L 124/51.
***
Protocol
The second document is the Protocol to the Agreement between the European Community and its Member States, of the one part, and the Swiss Confederation, of the other, on the free movement of persons, regarding the participation, as contracting parties of the Republic of Bulgaria and Romania pursuant to their accession to the European Union, published OJEU 20.5.2009 L 124/53.
The Protocol, to be ratified, contains the substantial provisions, including the transitional clauses (limitations).
Ralf Grahn
Tuesday, 19 May 2009
Air Transport Agreement USA, European Community, Iceland and Norway
On the legal information portal Eur-Lex, under Preparatory acts, COM documents, the Commission has published two documents on the accession of Norway and Iceland to the EU-US Air Transport Agreement, creating market access for air carriers:
EU-US Air Transport Agreement
Brussels, 15.5.2009 COM(2009) 226 final:
Proposal for a
Decision of the Council and the representatives of the Governments of the Member States of the European Union, meeting within the Council
On the signature and provisional application of the Air Transport Agreement between the United States of America, for the one part, the European Community and its Member States, for the second part, Iceland, for the third part, and the Kingdom of Norway, for the fourth part; and
On the signature and provisional application of the Ancillary Agreement between the European Community and its Member States, of the first part, Iceland, on the second part, and the Kingdom of Norway, of the third part, regarding the application of the Air Transport Agreement between the United States of America, of the first part; the European Community and its Member States, of the second part; Iceland, of the third part; and the Kingdom of Norway, of the fourth part
***
Ancillary Agreement
Brussels, 15.5.2009 COM(2009) 229 final:
Proposal for a
Decision of the Council and the representatives of the Governments of the Member States of the European Union, meeting within the Council
On the conclusion of the of the Air Transport Agreement between the United States of America, for the one part, the European Community and its Member States, for the second part, Iceland, for the third part, and the Kingdom of Norway, for the fourth part; and
On the conclusion of the Ancillary Agreement between the European Community and its Member States, of the first part, Iceland, on the second part, and the Kingdom of Norway, of the third part, regarding the application of the Air Transport Agreement between the United States of America, of the first part; the European Community and its Member States, of the second part; Iceland, of the third part; and the Kingdom of Norway, of the fourth part
Procedure number: 2009/0066 (CNS)
Ralf Grahn
EU-US Air Transport Agreement
Brussels, 15.5.2009 COM(2009) 226 final:
Proposal for a
Decision of the Council and the representatives of the Governments of the Member States of the European Union, meeting within the Council
On the signature and provisional application of the Air Transport Agreement between the United States of America, for the one part, the European Community and its Member States, for the second part, Iceland, for the third part, and the Kingdom of Norway, for the fourth part; and
On the signature and provisional application of the Ancillary Agreement between the European Community and its Member States, of the first part, Iceland, on the second part, and the Kingdom of Norway, of the third part, regarding the application of the Air Transport Agreement between the United States of America, of the first part; the European Community and its Member States, of the second part; Iceland, of the third part; and the Kingdom of Norway, of the fourth part
***
Ancillary Agreement
Brussels, 15.5.2009 COM(2009) 229 final:
Proposal for a
Decision of the Council and the representatives of the Governments of the Member States of the European Union, meeting within the Council
On the conclusion of the of the Air Transport Agreement between the United States of America, for the one part, the European Community and its Member States, for the second part, Iceland, for the third part, and the Kingdom of Norway, for the fourth part; and
On the conclusion of the Ancillary Agreement between the European Community and its Member States, of the first part, Iceland, on the second part, and the Kingdom of Norway, of the third part, regarding the application of the Air Transport Agreement between the United States of America, of the first part; the European Community and its Member States, of the second part; Iceland, of the third part; and the Kingdom of Norway, of the fourth part
Procedure number: 2009/0066 (CNS)
Ralf Grahn
Tuesday, 21 April 2009
EU: Special legislative procedure (VII)
The European Union has the shapeliest clay feet among international treaty based organisations.
Our Odyssey of the Council of the European Union and the special legislative procedure continues, taking us through the consolidated version of the Lisbon Treaty, published in the Official Journal of the European Union (OJEU) 9.5.2008 C 115.
***
Energy taxes
According to Article 194 of the Treaty on the Functioning of the European Union (TFEU), energy policy measures are generally taken in accordance with the ordinary legislative procedure. Fiscal measures form an exception, being subject to unanimity and a special legislative procedure, where the European Parliament is only consulted:
Article 194(3) TFEU
3. By way of derogation from paragraph 2, the Council, acting in accordance with a special legislative procedure, shall unanimously and after consulting the European Parliament, establish the measures referred to therein when they are primarily of a fiscal nature.
***
Associated overseas countries and territories
The association of overseas countries and territories is in the hands of the Council.
Article 203 TFEU
(ex Article 187 TEC)
The Council, acting unanimously on a proposal from the Commission, shall, on the basis of the experience acquired under the association of the countries and territories with the Union and of the principles set out in the Treaties, lay down provisions as regards the detailed rules and the procedure for the association of the countries and territories with the Union. Where the provisions in question are adopted by the Council in accordance with a special legislative procedure, it shall act unanimously on a proposal from the Commission and after consulting the European Parliament.
***
International agreements
Some agreements with third countries or international organisations outside the exclusive scope of the common foreign and security policy may need the consent of the European Parliament, despite the special legislative procedure, as indicated by Article 218(6)(a) TFEU:
Article 218(6)(a) TFEU
6. The Council, on a proposal by the negotiator, shall adopt a decision concluding the agreement.
Except where agreements relate exclusively to the common foreign and security policy, the Council shall adopt the decision concluding the agreement:
(a) after obtaining the consent of the European Parliament in the following cases:
(i) association agreements;
(ii) agreement on Union accession to the European Convention for the Protection of Human Rights and Fundamental Freedoms;
(iii) agreements establishing a specific institutional framework by organising cooperation procedures;
(iv) agreements with important budgetary implications for the Union;
(v) agreements covering fields to which either the ordinary legislative procedure applies, or the special legislative procedure where consent by the European Parliament is required.
***
European “election law”
A special legislative procedure applies to the uniform procedure for the European elections. Unanimity and ratifications have prevented that. This has left the second options of some common principles. As a consequence, the elections are not even held on the same day, but the European Parliament is given the uncommon role of proposing legislation:
Article 223 TFEU
(ex Article 190(4) and (5) TEC)
1. The European Parliament shall draw up a proposal to lay down the provisions necessary for the election of its Members by direct universal suffrage in accordance with a uniform procedure in all Member States or in accordance with principles common to all Member States.
The Council, acting unanimously in accordance with a special legislative procedure and after obtaining the consent of the European Parliament, which shall act by a majority of its component Members, shall lay down the necessary provisions. These provisions shall enter into force following their approval by the Member States in accordance with their respective constitutional requirements.
***
Future electoral reform?
There is a draft report by Andrew Duff of the European Parliament’s Committee on Constitutional Affairs (AFCO) on a proposal for a modification of the Act concerning the election of the Members of the European Parliament by direct universal suffrage of 20 September 1976; 15.10.2008, 2007/2207(INI). It is awaiting EP decision.
Ralf Grahn
Our Odyssey of the Council of the European Union and the special legislative procedure continues, taking us through the consolidated version of the Lisbon Treaty, published in the Official Journal of the European Union (OJEU) 9.5.2008 C 115.
***
Energy taxes
According to Article 194 of the Treaty on the Functioning of the European Union (TFEU), energy policy measures are generally taken in accordance with the ordinary legislative procedure. Fiscal measures form an exception, being subject to unanimity and a special legislative procedure, where the European Parliament is only consulted:
Article 194(3) TFEU
3. By way of derogation from paragraph 2, the Council, acting in accordance with a special legislative procedure, shall unanimously and after consulting the European Parliament, establish the measures referred to therein when they are primarily of a fiscal nature.
***
Associated overseas countries and territories
The association of overseas countries and territories is in the hands of the Council.
Article 203 TFEU
(ex Article 187 TEC)
The Council, acting unanimously on a proposal from the Commission, shall, on the basis of the experience acquired under the association of the countries and territories with the Union and of the principles set out in the Treaties, lay down provisions as regards the detailed rules and the procedure for the association of the countries and territories with the Union. Where the provisions in question are adopted by the Council in accordance with a special legislative procedure, it shall act unanimously on a proposal from the Commission and after consulting the European Parliament.
***
International agreements
Some agreements with third countries or international organisations outside the exclusive scope of the common foreign and security policy may need the consent of the European Parliament, despite the special legislative procedure, as indicated by Article 218(6)(a) TFEU:
Article 218(6)(a) TFEU
6. The Council, on a proposal by the negotiator, shall adopt a decision concluding the agreement.
Except where agreements relate exclusively to the common foreign and security policy, the Council shall adopt the decision concluding the agreement:
(a) after obtaining the consent of the European Parliament in the following cases:
(i) association agreements;
(ii) agreement on Union accession to the European Convention for the Protection of Human Rights and Fundamental Freedoms;
(iii) agreements establishing a specific institutional framework by organising cooperation procedures;
(iv) agreements with important budgetary implications for the Union;
(v) agreements covering fields to which either the ordinary legislative procedure applies, or the special legislative procedure where consent by the European Parliament is required.
***
European “election law”
A special legislative procedure applies to the uniform procedure for the European elections. Unanimity and ratifications have prevented that. This has left the second options of some common principles. As a consequence, the elections are not even held on the same day, but the European Parliament is given the uncommon role of proposing legislation:
Article 223 TFEU
(ex Article 190(4) and (5) TEC)
1. The European Parliament shall draw up a proposal to lay down the provisions necessary for the election of its Members by direct universal suffrage in accordance with a uniform procedure in all Member States or in accordance with principles common to all Member States.
The Council, acting unanimously in accordance with a special legislative procedure and after obtaining the consent of the European Parliament, which shall act by a majority of its component Members, shall lay down the necessary provisions. These provisions shall enter into force following their approval by the Member States in accordance with their respective constitutional requirements.
***
Future electoral reform?
There is a draft report by Andrew Duff of the European Parliament’s Committee on Constitutional Affairs (AFCO) on a proposal for a modification of the Act concerning the election of the Members of the European Parliament by direct universal suffrage of 20 September 1976; 15.10.2008, 2007/2207(INI). It is awaiting EP decision.
Ralf Grahn
Sunday, 8 February 2009
EU Law: Euro exchange-rate system agreements
The EU Treaty of Lisbon would move the provision on international agreements concerning the euro exchange-rate system under the Title on international agreements, where these agreements form an exception to the normal procedures with regard to international agreements.
***
Current treaty
The existing Article 111 of the Treaty establishing the European Community (TEC) is situated in Title VII Economic and monetary policy, Chapter 2 Monetary policy; OJEU 29.12.2006 C 321 E/89–90.
The first paragraph concerns formal agreements on an exchange rate system for the ecu (euro) in relation to non-Community currencies.
The second paragraph provides for general orientations for exchange-rate policies in relation to non-Community currencies (if there is no binding exchange-rate system).
The third paragraph sets out a special legal base for negotiating and concluding agreements on monetary or foreign‑exchange regime matters with third countries or international organisations.
Paragraph 4 refers to the external representation of the economic and monetary union (EMU).
Paragraph 5 rules the residual right of member states to negotiate in international bodies and conclude international agreements.
From the latest consolidated version of the treaties, here is the text of Article 111:
Article 111 TEC
1. By way of derogation from Article 300, the Council may, acting unanimously on a recommendation from the ECB or from the Commission, and after consulting the ECB in an endeavour to reach a consensus consistent with the objective of price stability, after consulting the European Parliament, in accordance with the procedure in paragraph 3 for determining the arrangements, conclude formal agreements on an exchange-rate system for the ecu in relation to non-Community currencies. The Council may, acting by a qualified majority on a recommendation from the ECB or from the Commission, and after consulting the ECB in an endeavour to reach a consensus consistent with the objective of price stability, adopt, adjust or abandon the central rates of the ecu within the exchange-rate system. The President of the Council shall inform the European Parliament of the adoption, adjustment or abandonment of the ecu central rates.
2. In the absence of an exchange-rate system in relation to one or more non-Community currencies as referred to in paragraph 1, the Council, acting by a qualified majority either on a recommendation from the Commission and after consulting the ECB or on a recommendation from the ECB, may formulate general orientations for exchange-rate policy in relation to these currencies. These general orientations shall be without prejudice to the primary objective of the ESCB to maintain price stability.
3. By way of derogation from Article 300, where agreements concerning monetary or foreign‑exchange regime matters need to be negotiated by the Community with one or more States or international organisations, the Council, acting by a qualified majority on a recommendation from the Commission and after consulting the ECB, shall decide the arrangements for the negotiation and for the conclusion of such agreements. These arrangements shall ensure that the Community expresses a single position. The Commission shall be fully associated with the negotiations.
Agreements concluded in accordance with this paragraph shall be binding on the institutions of the Community, on the ECB and on Member States.
4. Subject to paragraph 1, the Council, acting by a qualified majority on a proposal from the Commission and after consulting the ECB, shall decide on the position of the Community at international level as regards issues of particular relevance to economic and monetary union and on its representation, in compliance with the allocation of powers laid down in Articles 99 and 105.
5. Without prejudice to Community competence and Community agreements as regards economic and monetary union, Member States may negotiate in international bodies and conclude international agreements.
***
Original Lisbon Treaty
Article 2, point 174 of the original Treaty of Lisbon inserted an Article 188o into the Title on international agreements (OJEU 17.12.2007 C 306/99):
174) An Article 188 O shall be inserted, with the wording of paragraphs 1 to 3 and 5 of Article 111 and paragraph 1 shall be split into two subparagraphs, the last two sentences becoming the second subparagraph; the Article shall be amended as follows:
(a) paragraph 1, first subparagraph, shall be replaced by the following:
‘
1. By way of derogation from Article 188 N(1), the Council, either on a recommendation from the European Central Bank or on a recommendation from the Commission and after consulting the European Central Bank, in an endeavour to reach a consensus consistent with the objective of price stability, may conclude formal agreements on an exchange-rate system for the euro in relation to the currencies of third States. The Council shall act unanimously after consulting the European Parliament and in accordance with the procedure provided for in paragraph 3.’.
In the second subparagraph, the words ‘on a recommendation from the ECB or from the Commission and after consulting the ECB in an endeavour to’ shall be replaced by the following: ‘either on a recommendation from the European Central Bank or on a recommendation from the Commission, and after consulting the European Central Bank, in an endeavour to’;
(b) in paragraph 2, the words ‘non-Community currencies’ shall be replaced by ‘currencies of third States’;
(c) in paragraph 3, in the first sentence of the first subparagraph, the reference to Article 300 shall be replaced by a reference to Article 188 N and the word ‘States’ shall be replaced by ‘third States’, and the second subparagraph shall be deleted;
(d) paragraph 5 shall be renumbered ‘4’.
***
Consolidated Lisbon Treaty
Renumbered Article 219 of the Treaty on the Functioning of the European Union (TFEU) and made readable once again, the provision looks like this in the consolidated version of the Lisbon Treaty (OJEU 9.5.2008 C 115/146–147):
Article 219 TFEU
(ex Article 111(1) to (3) and (5) TEC)
1. By way of derogation from Article 218, the Council, either on a recommendation from the European Central Bank or on a recommendation from the Commission and after consulting the European Central Bank, in an endeavour to reach a consensus consistent with the objective of price stability, may conclude formal agreements on an exchange-rate system for the euro in relation to the currencies of third States. The Council shall act unanimously after consulting the European Parliament and in accordance with the procedure provided for in paragraph 3.
The Council may, either on a recommendation from the European Central Bank or on a recommendation from the Commission, and after consulting the European Central Bank, in an endeavour to reach a consensus consistent with the objective of price stability, adopt, adjust or abandon the central rates of the euro within the exchange-rate system. The President of the Council shall inform the European Parliament of the adoption, adjustment or abandonment of the euro central rates.
2. In the absence of an exchange-rate system in relation to one or more currencies of third States as referred to in paragraph 1, the Council, either on a recommendation from the Commission and after consulting the European Central Bank or on a recommendation from the European Central Bank, may formulate general orientations for exchange-rate policy in relation to these currencies. These general orientations shall be without prejudice to the primary objective of the ESCB to maintain price stability.
3. By way of derogation from Article 218, where agreements concerning monetary or foreign exchange regime matters need to be negotiated by the Union with one or more third States or international organisations, the Council, on a recommendation from the Commission and after consulting the European Central Bank, shall decide the arrangements for the negotiation and for the conclusion of such agreements. These arrangements shall ensure that the Union expresses a single position. The Commission shall be fully associated with the negotiations.
4. Without prejudice to Union competence and Union agreements as regards economic and monetary union, Member States may negotiate in international bodies and conclude international agreements.
***
Comments
The bulk of Article 111 TEC has been moved from monetary policy to international agreements to become Article 219 TFEU.
We see that concluding formal agreements on an exchange-rate system for the euro and agreements concerning monetary or foreign exchange regime matters derogates from the general procedure for the conclusion of EU international agreements in Article 218 TFEU.
A minor detail is that ‘third States’ is a rare hybrid expression, since the amending treaties normally refer to (Member) States and to ‘third countries’.
Article 219 TFEU is one of the treaty provisions which will not apply to member states with a derogation (which do not fulfil the conditions for the adoption of the euro), according to Article 139(2)(g), so member states means ones whose currency is the euro. .
In substance Article 219 TFEU corresponds with Article III-326 of the Constitutional Treaty.
Ralf Grahn
***
Current treaty
The existing Article 111 of the Treaty establishing the European Community (TEC) is situated in Title VII Economic and monetary policy, Chapter 2 Monetary policy; OJEU 29.12.2006 C 321 E/89–90.
The first paragraph concerns formal agreements on an exchange rate system for the ecu (euro) in relation to non-Community currencies.
The second paragraph provides for general orientations for exchange-rate policies in relation to non-Community currencies (if there is no binding exchange-rate system).
The third paragraph sets out a special legal base for negotiating and concluding agreements on monetary or foreign‑exchange regime matters with third countries or international organisations.
Paragraph 4 refers to the external representation of the economic and monetary union (EMU).
Paragraph 5 rules the residual right of member states to negotiate in international bodies and conclude international agreements.
From the latest consolidated version of the treaties, here is the text of Article 111:
Article 111 TEC
1. By way of derogation from Article 300, the Council may, acting unanimously on a recommendation from the ECB or from the Commission, and after consulting the ECB in an endeavour to reach a consensus consistent with the objective of price stability, after consulting the European Parliament, in accordance with the procedure in paragraph 3 for determining the arrangements, conclude formal agreements on an exchange-rate system for the ecu in relation to non-Community currencies. The Council may, acting by a qualified majority on a recommendation from the ECB or from the Commission, and after consulting the ECB in an endeavour to reach a consensus consistent with the objective of price stability, adopt, adjust or abandon the central rates of the ecu within the exchange-rate system. The President of the Council shall inform the European Parliament of the adoption, adjustment or abandonment of the ecu central rates.
2. In the absence of an exchange-rate system in relation to one or more non-Community currencies as referred to in paragraph 1, the Council, acting by a qualified majority either on a recommendation from the Commission and after consulting the ECB or on a recommendation from the ECB, may formulate general orientations for exchange-rate policy in relation to these currencies. These general orientations shall be without prejudice to the primary objective of the ESCB to maintain price stability.
3. By way of derogation from Article 300, where agreements concerning monetary or foreign‑exchange regime matters need to be negotiated by the Community with one or more States or international organisations, the Council, acting by a qualified majority on a recommendation from the Commission and after consulting the ECB, shall decide the arrangements for the negotiation and for the conclusion of such agreements. These arrangements shall ensure that the Community expresses a single position. The Commission shall be fully associated with the negotiations.
Agreements concluded in accordance with this paragraph shall be binding on the institutions of the Community, on the ECB and on Member States.
4. Subject to paragraph 1, the Council, acting by a qualified majority on a proposal from the Commission and after consulting the ECB, shall decide on the position of the Community at international level as regards issues of particular relevance to economic and monetary union and on its representation, in compliance with the allocation of powers laid down in Articles 99 and 105.
5. Without prejudice to Community competence and Community agreements as regards economic and monetary union, Member States may negotiate in international bodies and conclude international agreements.
***
Original Lisbon Treaty
Article 2, point 174 of the original Treaty of Lisbon inserted an Article 188o into the Title on international agreements (OJEU 17.12.2007 C 306/99):
174) An Article 188 O shall be inserted, with the wording of paragraphs 1 to 3 and 5 of Article 111 and paragraph 1 shall be split into two subparagraphs, the last two sentences becoming the second subparagraph; the Article shall be amended as follows:
(a) paragraph 1, first subparagraph, shall be replaced by the following:
‘
1. By way of derogation from Article 188 N(1), the Council, either on a recommendation from the European Central Bank or on a recommendation from the Commission and after consulting the European Central Bank, in an endeavour to reach a consensus consistent with the objective of price stability, may conclude formal agreements on an exchange-rate system for the euro in relation to the currencies of third States. The Council shall act unanimously after consulting the European Parliament and in accordance with the procedure provided for in paragraph 3.’.
In the second subparagraph, the words ‘on a recommendation from the ECB or from the Commission and after consulting the ECB in an endeavour to’ shall be replaced by the following: ‘either on a recommendation from the European Central Bank or on a recommendation from the Commission, and after consulting the European Central Bank, in an endeavour to’;
(b) in paragraph 2, the words ‘non-Community currencies’ shall be replaced by ‘currencies of third States’;
(c) in paragraph 3, in the first sentence of the first subparagraph, the reference to Article 300 shall be replaced by a reference to Article 188 N and the word ‘States’ shall be replaced by ‘third States’, and the second subparagraph shall be deleted;
(d) paragraph 5 shall be renumbered ‘4’.
***
Consolidated Lisbon Treaty
Renumbered Article 219 of the Treaty on the Functioning of the European Union (TFEU) and made readable once again, the provision looks like this in the consolidated version of the Lisbon Treaty (OJEU 9.5.2008 C 115/146–147):
Article 219 TFEU
(ex Article 111(1) to (3) and (5) TEC)
1. By way of derogation from Article 218, the Council, either on a recommendation from the European Central Bank or on a recommendation from the Commission and after consulting the European Central Bank, in an endeavour to reach a consensus consistent with the objective of price stability, may conclude formal agreements on an exchange-rate system for the euro in relation to the currencies of third States. The Council shall act unanimously after consulting the European Parliament and in accordance with the procedure provided for in paragraph 3.
The Council may, either on a recommendation from the European Central Bank or on a recommendation from the Commission, and after consulting the European Central Bank, in an endeavour to reach a consensus consistent with the objective of price stability, adopt, adjust or abandon the central rates of the euro within the exchange-rate system. The President of the Council shall inform the European Parliament of the adoption, adjustment or abandonment of the euro central rates.
2. In the absence of an exchange-rate system in relation to one or more currencies of third States as referred to in paragraph 1, the Council, either on a recommendation from the Commission and after consulting the European Central Bank or on a recommendation from the European Central Bank, may formulate general orientations for exchange-rate policy in relation to these currencies. These general orientations shall be without prejudice to the primary objective of the ESCB to maintain price stability.
3. By way of derogation from Article 218, where agreements concerning monetary or foreign exchange regime matters need to be negotiated by the Union with one or more third States or international organisations, the Council, on a recommendation from the Commission and after consulting the European Central Bank, shall decide the arrangements for the negotiation and for the conclusion of such agreements. These arrangements shall ensure that the Union expresses a single position. The Commission shall be fully associated with the negotiations.
4. Without prejudice to Union competence and Union agreements as regards economic and monetary union, Member States may negotiate in international bodies and conclude international agreements.
***
Comments
The bulk of Article 111 TEC has been moved from monetary policy to international agreements to become Article 219 TFEU.
We see that concluding formal agreements on an exchange-rate system for the euro and agreements concerning monetary or foreign exchange regime matters derogates from the general procedure for the conclusion of EU international agreements in Article 218 TFEU.
A minor detail is that ‘third States’ is a rare hybrid expression, since the amending treaties normally refer to (Member) States and to ‘third countries’.
Article 219 TFEU is one of the treaty provisions which will not apply to member states with a derogation (which do not fulfil the conditions for the adoption of the euro), according to Article 139(2)(g), so member states means ones whose currency is the euro. .
In substance Article 219 TFEU corresponds with Article III-326 of the Constitutional Treaty.
Ralf Grahn
Saturday, 7 February 2009
EU Law: Concluding international agreements
The merger of the European Community into the European Union facilitates the conclusion of international agreements, which is reflected in the general procedure for concluding these agreements in the Treaty of Lisbon. The legitimacy of international agreements is enhanced by the strengthening of the role of the European Parliament, but. CFSP agreements and certain other agreements still require unanimous Council decisions and leave the EP to be consulted.
***
Current treaty
Article 300 of the Treaty establishing the European Community provides for the procedure leading to the conclusion of international agreements between the EC and third countries or international organisations.
The Commission conducts the negotiations, but the Council decides on every major step from the opening of negotiations onward, as shown in the latest consolidated version of the treaties, published OJEU 29.12.2006 C 321 E/176–177:
Article 300 TEC
1. Where this Treaty provides for the conclusion of agreements between the Community and one or more States or international organisations, the Commission shall make recommendations to the Council, which shall authorise the Commission to open the necessary negotiations. The Commission shall conduct these negotiations in consultation with special committees appointed by the Council to assist it in this task and within the framework of such directives as the Council may issue to it.
In exercising the powers conferred upon it by this paragraph, the Council shall act by a qualified majority, except in the cases where the first subparagraph of paragraph 2 provides that the Council shall act unanimously.
2. Subject to the powers vested in the Commission in this field, the signing, which may be accompanied by a decision on provisional application before entry into force, and the conclusion of the agreements shall be decided on by the Council, acting by a qualified majority on a proposal from the Commission. The Council shall act unanimously when the agreement covers a field for which unanimity is required for the adoption of internal rules and for the agreements referred to in Article 310.
By way of derogation from the rules laid down in paragraph 3, the same procedures shall apply for a decision to suspend the application of an agreement, and for the purpose of establishing the positions to be adopted on behalf of the Community in a body set up by an agreement, when that body is called upon to adopt decisions having legal effects, with the exception of decisions supplementing or amending the institutional framework of the agreement.
The European Parliament shall be immediately and fully informed of any decision under this paragraph concerning the provisional application or the suspension of agreements, or the establishment of the Community position in a body set up by an agreement.
3. The Council shall conclude agreements after consulting the European Parliament, except for the agreements referred to in Article 133(3), including cases where the agreement covers a field for which the procedure referred to in Article 251 or that referred to in Article 252 is required for the adoption of internal rules. The European Parliament shall deliver its opinion within a time limit which the Council may lay down according to the urgency of the matter. In the absence of an opinion within that time limit, the Council may act.
By way of derogation from the previous subparagraph, agreements referred to in Article 310, other agreements establishing a specific institutional framework by organising cooperation procedures, agreements having important budgetary implications for the Community and agreements entailing amendment of an act adopted under the procedure referred to in Article 251 shall be concluded after the assent of the European Parliament has been obtained.
The Council and the European Parliament may, in an urgent situation, agree upon a time limit for the assent.
4. When concluding an agreement, the Council may, by way of derogation from paragraph 2, authorise the Commission to approve modifications on behalf of the Community where the agreement provides for them to be adopted by a simplified procedure or by a body set up by the agreement; it may attach specific conditions to such authorisation.
5. When the Council envisages concluding an agreement which calls for amendments to this Treaty, the amendments must first be adopted in accordance with the procedure laid down in Article 48 of the Treaty on European Union.
6. The European Parliament, the Council, the Commission or a Member State may obtain the opinion of the Court of Justice as to whether an agreement envisaged is compatible with the provisions of this Treaty. Where the opinion of the Court of Justice is adverse, the agreement may enter into force only in accordance with Article 48 of the Treaty on European Union.
7. Agreements concluded under the conditions set out in this Article shall be binding on the institutions of the Community and on Member States.
***
The original Lisbon Treaty
Article 2, point 173 of the original Treaty of Lisbon inserted an Article 188n replacing Article 300 TEC, in OJEU 17.12.2007 C 306/97–98:
173) An Article 188 N shall be inserted, replacing Article 300:
[Text not repeated here]
***
Consolidated Lisbon Treaty
If the Treaty of Lisbon enters into force, here is what the renumbered Article 218 TFEU would look like; consolidated version of the Treaty on the Functioning of the European Union, published OJEU 9.5.2008 C 115/144–146:
Article 218 TFEU
(ex Article 300 TEC)
1. Without prejudice to the specific provisions laid down in Article 207, agreements between the Union and third countries or international organisations shall be negotiated and concluded in accordance with the following procedure.
2. The Council shall authorise the opening of negotiations, adopt negotiating directives, authorise the signing of agreements and conclude them.
3. The Commission, or the High Representative of the Union for Foreign Affairs and Security Policy where the agreement envisaged relates exclusively or principally to the common foreign and security policy, shall submit recommendations to the Council, which shall adopt a decision authorising the opening of negotiations and, depending on the subject of the agreement envisaged, nominating the Union negotiator or the head of the Union's negotiating team.
4. The Council may address directives to the negotiator and designate a special committee in consultation with which the negotiations must be conducted.
5. The Council, on a proposal by the negotiator, shall adopt a decision authorising the signing of the agreement and, if necessary, its provisional application before entry into force.
6. The Council, on a proposal by the negotiator, shall adopt a decision concluding the agreement.
Except where agreements relate exclusively to the common foreign and security policy, the Council shall adopt the decision concluding the agreement:
(a) after obtaining the consent of the European Parliament in the following cases:
(i) association agreements;
(ii) agreement on Union accession to the European Convention for the Protection of Human Rights and Fundamental Freedoms;
(iii) agreements establishing a specific institutional framework by organising cooperation procedures;
(iv) agreements with important budgetary implications for the Union;
(v) agreements covering fields to which either the ordinary legislative procedure applies, or the special legislative procedure where consent by the European Parliament is required.
The European Parliament and the Council may, in an urgent situation, agree upon a time-limit for consent.
(b) after consulting the European Parliament in other cases. The European Parliament shall deliver its opinion within a time-limit which the Council may set depending on the urgency of the matter. In the absence of an opinion within that time-limit, the Council may act.
7. When concluding an agreement, the Council may, by way of derogation from paragraphs 5, 6 and 9, authorise the negotiator to approve on the Union's behalf modifications to the agreement where it provides for them to be adopted by a simplified procedure or by a body set up by the agreement. The Council may attach specific conditions to such authorisation.
8. The Council shall act by a qualified majority throughout the procedure.
However, it shall act unanimously when the agreement covers a field for which unanimity is required for the adoption of a Union act as well as for association agreements and the agreements referred to in Article 212 with the States which are candidates for accession. The Council shall also act unanimously for the agreement on accession of the Union to the European Convention for the Protection of Human Rights and Fundamental Freedoms; the decision concluding this agreement shall enter into force after it has been approved by the Member States in accordance with their respective constitutional requirements.
9. The Council, on a proposal from the Commission or the High Representative of the Union for Foreign Affairs and Security Policy, shall adopt a decision suspending application of an agreement and establishing the positions to be adopted on the Union's behalf in a body set up by an agreement, when that body is called upon to adopt acts having legal effects, with the exception of acts supplementing or amending the institutional framework of the agreement.
10. The European Parliament shall be immediately and fully informed at all stages of the procedure.
11. A Member State, the European Parliament, the Council or the Commission may obtain the opinion of the Court of Justice as to whether an agreement envisaged is compatible with the Treaties. Where the opinion of the Court is adverse, the agreement envisaged may not enter into force unless it is amended or the Treaties are revised.
***
Comments
The abolishment of the separate European Union and the European Community by merging the EC into the EU, with legal personality, extends and facilitates the general procedure for negotiating and concluding international agreements.
The agreements are concluded in the name of the European Union.
International agreements relating to the common foreign and security (CFSP) still have special traits within the general procedure.
The role of the European Parliament is strengthened where its consent is needed.
Unanimity remains the rule for Council decisions in the following cases:
· When unanimity is required for the adoption of a Union act
· Association agreements
· Economic, financial and technical cooperation agreements with candidates for accession
· Accession of the EU to the European Convention for the Protection of Human Rights and Fundamental Freedoms (plus ratification needed)
In substance Article 218 TFEU is similar to Article III-325 of the Constitutional Treaty, with the addition that the European Convention on Human Rights requires both unanimous decision and ratification by the member states.
Ralf Grahn
***
Current treaty
Article 300 of the Treaty establishing the European Community provides for the procedure leading to the conclusion of international agreements between the EC and third countries or international organisations.
The Commission conducts the negotiations, but the Council decides on every major step from the opening of negotiations onward, as shown in the latest consolidated version of the treaties, published OJEU 29.12.2006 C 321 E/176–177:
Article 300 TEC
1. Where this Treaty provides for the conclusion of agreements between the Community and one or more States or international organisations, the Commission shall make recommendations to the Council, which shall authorise the Commission to open the necessary negotiations. The Commission shall conduct these negotiations in consultation with special committees appointed by the Council to assist it in this task and within the framework of such directives as the Council may issue to it.
In exercising the powers conferred upon it by this paragraph, the Council shall act by a qualified majority, except in the cases where the first subparagraph of paragraph 2 provides that the Council shall act unanimously.
2. Subject to the powers vested in the Commission in this field, the signing, which may be accompanied by a decision on provisional application before entry into force, and the conclusion of the agreements shall be decided on by the Council, acting by a qualified majority on a proposal from the Commission. The Council shall act unanimously when the agreement covers a field for which unanimity is required for the adoption of internal rules and for the agreements referred to in Article 310.
By way of derogation from the rules laid down in paragraph 3, the same procedures shall apply for a decision to suspend the application of an agreement, and for the purpose of establishing the positions to be adopted on behalf of the Community in a body set up by an agreement, when that body is called upon to adopt decisions having legal effects, with the exception of decisions supplementing or amending the institutional framework of the agreement.
The European Parliament shall be immediately and fully informed of any decision under this paragraph concerning the provisional application or the suspension of agreements, or the establishment of the Community position in a body set up by an agreement.
3. The Council shall conclude agreements after consulting the European Parliament, except for the agreements referred to in Article 133(3), including cases where the agreement covers a field for which the procedure referred to in Article 251 or that referred to in Article 252 is required for the adoption of internal rules. The European Parliament shall deliver its opinion within a time limit which the Council may lay down according to the urgency of the matter. In the absence of an opinion within that time limit, the Council may act.
By way of derogation from the previous subparagraph, agreements referred to in Article 310, other agreements establishing a specific institutional framework by organising cooperation procedures, agreements having important budgetary implications for the Community and agreements entailing amendment of an act adopted under the procedure referred to in Article 251 shall be concluded after the assent of the European Parliament has been obtained.
The Council and the European Parliament may, in an urgent situation, agree upon a time limit for the assent.
4. When concluding an agreement, the Council may, by way of derogation from paragraph 2, authorise the Commission to approve modifications on behalf of the Community where the agreement provides for them to be adopted by a simplified procedure or by a body set up by the agreement; it may attach specific conditions to such authorisation.
5. When the Council envisages concluding an agreement which calls for amendments to this Treaty, the amendments must first be adopted in accordance with the procedure laid down in Article 48 of the Treaty on European Union.
6. The European Parliament, the Council, the Commission or a Member State may obtain the opinion of the Court of Justice as to whether an agreement envisaged is compatible with the provisions of this Treaty. Where the opinion of the Court of Justice is adverse, the agreement may enter into force only in accordance with Article 48 of the Treaty on European Union.
7. Agreements concluded under the conditions set out in this Article shall be binding on the institutions of the Community and on Member States.
***
The original Lisbon Treaty
Article 2, point 173 of the original Treaty of Lisbon inserted an Article 188n replacing Article 300 TEC, in OJEU 17.12.2007 C 306/97–98:
173) An Article 188 N shall be inserted, replacing Article 300:
[Text not repeated here]
***
Consolidated Lisbon Treaty
If the Treaty of Lisbon enters into force, here is what the renumbered Article 218 TFEU would look like; consolidated version of the Treaty on the Functioning of the European Union, published OJEU 9.5.2008 C 115/144–146:
Article 218 TFEU
(ex Article 300 TEC)
1. Without prejudice to the specific provisions laid down in Article 207, agreements between the Union and third countries or international organisations shall be negotiated and concluded in accordance with the following procedure.
2. The Council shall authorise the opening of negotiations, adopt negotiating directives, authorise the signing of agreements and conclude them.
3. The Commission, or the High Representative of the Union for Foreign Affairs and Security Policy where the agreement envisaged relates exclusively or principally to the common foreign and security policy, shall submit recommendations to the Council, which shall adopt a decision authorising the opening of negotiations and, depending on the subject of the agreement envisaged, nominating the Union negotiator or the head of the Union's negotiating team.
4. The Council may address directives to the negotiator and designate a special committee in consultation with which the negotiations must be conducted.
5. The Council, on a proposal by the negotiator, shall adopt a decision authorising the signing of the agreement and, if necessary, its provisional application before entry into force.
6. The Council, on a proposal by the negotiator, shall adopt a decision concluding the agreement.
Except where agreements relate exclusively to the common foreign and security policy, the Council shall adopt the decision concluding the agreement:
(a) after obtaining the consent of the European Parliament in the following cases:
(i) association agreements;
(ii) agreement on Union accession to the European Convention for the Protection of Human Rights and Fundamental Freedoms;
(iii) agreements establishing a specific institutional framework by organising cooperation procedures;
(iv) agreements with important budgetary implications for the Union;
(v) agreements covering fields to which either the ordinary legislative procedure applies, or the special legislative procedure where consent by the European Parliament is required.
The European Parliament and the Council may, in an urgent situation, agree upon a time-limit for consent.
(b) after consulting the European Parliament in other cases. The European Parliament shall deliver its opinion within a time-limit which the Council may set depending on the urgency of the matter. In the absence of an opinion within that time-limit, the Council may act.
7. When concluding an agreement, the Council may, by way of derogation from paragraphs 5, 6 and 9, authorise the negotiator to approve on the Union's behalf modifications to the agreement where it provides for them to be adopted by a simplified procedure or by a body set up by the agreement. The Council may attach specific conditions to such authorisation.
8. The Council shall act by a qualified majority throughout the procedure.
However, it shall act unanimously when the agreement covers a field for which unanimity is required for the adoption of a Union act as well as for association agreements and the agreements referred to in Article 212 with the States which are candidates for accession. The Council shall also act unanimously for the agreement on accession of the Union to the European Convention for the Protection of Human Rights and Fundamental Freedoms; the decision concluding this agreement shall enter into force after it has been approved by the Member States in accordance with their respective constitutional requirements.
9. The Council, on a proposal from the Commission or the High Representative of the Union for Foreign Affairs and Security Policy, shall adopt a decision suspending application of an agreement and establishing the positions to be adopted on the Union's behalf in a body set up by an agreement, when that body is called upon to adopt acts having legal effects, with the exception of acts supplementing or amending the institutional framework of the agreement.
10. The European Parliament shall be immediately and fully informed at all stages of the procedure.
11. A Member State, the European Parliament, the Council or the Commission may obtain the opinion of the Court of Justice as to whether an agreement envisaged is compatible with the Treaties. Where the opinion of the Court is adverse, the agreement envisaged may not enter into force unless it is amended or the Treaties are revised.
***
Comments
The abolishment of the separate European Union and the European Community by merging the EC into the EU, with legal personality, extends and facilitates the general procedure for negotiating and concluding international agreements.
The agreements are concluded in the name of the European Union.
International agreements relating to the common foreign and security (CFSP) still have special traits within the general procedure.
The role of the European Parliament is strengthened where its consent is needed.
Unanimity remains the rule for Council decisions in the following cases:
· When unanimity is required for the adoption of a Union act
· Association agreements
· Economic, financial and technical cooperation agreements with candidates for accession
· Accession of the EU to the European Convention for the Protection of Human Rights and Fundamental Freedoms (plus ratification needed)
In substance Article 218 TFEU is similar to Article III-325 of the Constitutional Treaty, with the addition that the European Convention on Human Rights requires both unanimous decision and ratification by the member states.
Ralf Grahn
Friday, 6 February 2009
EU Lisbon Treaty: International agreements
We take a look at how the EU Treaty of Lisbon codifies existing case law by the Court of Justice of the European Communities (ECJ) and clarifies the competences with regard to international agreements.
***
Original Lisbon Treaty
Article 2, point 170 of the original Lisbon Treaty adds a Title V International agreements to Part Five External action by the Union, and point 171 adds a new Article 188l (OJEU 17.12.2007 C 306/96–97):
INTERNATIONAL AGREEMENTS
170) A Title V ‘INTERNATIONAL AGREEMENTS’ shall be inserted after Article 188 K.
171) The following Article 188 L shall be inserted:
‘Article 188 L
1. The Union may conclude an agreement with one or more third countries or international organisations where the Treaties so provide or where the conclusion of an agreement is necessary in order to achieve, within the framework of the Union's policies, one of the objectives referred to in the Treaties, or is provided for in a legally binding Union act or is likely to affect common rules or alter their scope.
2. Agreements concluded by the Union are binding upon the institutions of the Union and on its Member States.’.
***
Consolidated Lisbon Treaty
Article 188l (ToL) is renumbered Article 216 in the Treaty on the Functioning of the European Union (TFEU), published in the consolidated version of the Lisbon Treaty in the Official Journal of the European Union (OJEU) 9.5.2008 C 115/144:
TITLE V
INTERNATIONAL AGREEMENTS
Article 216 TFEU
1. The Union may conclude an agreement with one or more third countries or international organisations where the Treaties so provide or where the conclusion of an agreement is necessary in order to achieve, within the framework of the Union's policies, one of the objectives referred to in the Treaties, or is provided for in a legally binding Union act or is likely to affect common rules or alter their scope.
2. Agreements concluded by the Union are binding upon the institutions of the Union and on its Member States.
***
Comment
Article 216 TFEU general in scope. When the separate European Community and the European Union are merged into one, one of the complexities is resolved.
The provision refers to the explicit powers (‘where the Treaties so provide’) as well as to the implicit powers as they have been laid down by the ECJ.
The latter part of the first sentence echoes Article 3(2) TFEU on exclusive competence for the conclusion of international agreements.
***
Further reading
For a fuller discussion of legal questions concerning EU external powers you can turn to one of the following publications:
Chapter 6 EU international relations law, in Paul Craig and Gráinne de Búrca: EU Law – Text, Cases, and Materials (Fourth edition, 2008; Oxford University Press).
Marise Cremona: External Relations of the EU and the Member States: Competence, Mixed Agreements, International Responsibility, and Effects of International Law (EUI Working Papers Law No 2006/22)
Marius Vahl: International agreements in EU neighbourhood policy (Sieps report 2006:10)
Ralf Grahn
***
Original Lisbon Treaty
Article 2, point 170 of the original Lisbon Treaty adds a Title V International agreements to Part Five External action by the Union, and point 171 adds a new Article 188l (OJEU 17.12.2007 C 306/96–97):
INTERNATIONAL AGREEMENTS
170) A Title V ‘INTERNATIONAL AGREEMENTS’ shall be inserted after Article 188 K.
171) The following Article 188 L shall be inserted:
‘Article 188 L
1. The Union may conclude an agreement with one or more third countries or international organisations where the Treaties so provide or where the conclusion of an agreement is necessary in order to achieve, within the framework of the Union's policies, one of the objectives referred to in the Treaties, or is provided for in a legally binding Union act or is likely to affect common rules or alter their scope.
2. Agreements concluded by the Union are binding upon the institutions of the Union and on its Member States.’.
***
Consolidated Lisbon Treaty
Article 188l (ToL) is renumbered Article 216 in the Treaty on the Functioning of the European Union (TFEU), published in the consolidated version of the Lisbon Treaty in the Official Journal of the European Union (OJEU) 9.5.2008 C 115/144:
TITLE V
INTERNATIONAL AGREEMENTS
Article 216 TFEU
1. The Union may conclude an agreement with one or more third countries or international organisations where the Treaties so provide or where the conclusion of an agreement is necessary in order to achieve, within the framework of the Union's policies, one of the objectives referred to in the Treaties, or is provided for in a legally binding Union act or is likely to affect common rules or alter their scope.
2. Agreements concluded by the Union are binding upon the institutions of the Union and on its Member States.
***
Comment
Article 216 TFEU general in scope. When the separate European Community and the European Union are merged into one, one of the complexities is resolved.
The provision refers to the explicit powers (‘where the Treaties so provide’) as well as to the implicit powers as they have been laid down by the ECJ.
The latter part of the first sentence echoes Article 3(2) TFEU on exclusive competence for the conclusion of international agreements.
***
Further reading
For a fuller discussion of legal questions concerning EU external powers you can turn to one of the following publications:
Chapter 6 EU international relations law, in Paul Craig and Gráinne de Búrca: EU Law – Text, Cases, and Materials (Fourth edition, 2008; Oxford University Press).
Marise Cremona: External Relations of the EU and the Member States: Competence, Mixed Agreements, International Responsibility, and Effects of International Law (EUI Working Papers Law No 2006/22)
Marius Vahl: International agreements in EU neighbourhood policy (Sieps report 2006:10)
Ralf Grahn
EU Law: International agreements today
The Lisbon Treaty improves the presentation of the European Union’s (European Community’s) powers to conclude international agreements (treaties), but first we take a look at the existing treaties.
***
Current treaties
Community pillar
The current divide between the European Community, with legal personality (Article 281 TEC), and the European Union, without, complicates the conclusion of international agreements and it is reflected in the existing main treaty provisions. (Cf. the latest consolidated version of the treaties, published OJEU 29.12.2006 C 321 E.)
Article 300 of the Treaty establishing the European Community (TEC) does not present a comprehensive view of the treaty making powers of the EC, but refers generally to the situations “Where this Treaty provides for the conclusion of agreements between the Community and one or more States or international organisations, …”. It then sets out the procedures for concluding treaties.
In addition, there are agreements with a more general scope and provisions related to a specific policy area or even a determined issue:
Article 310 TEC provides for the conclusion of association agreements with states or international organisations.
In the area of the common commercial policy (including customs tariffs and trade), the European Community exercises exclusive competence, with Article 133 TEC providing for international agreements to be concluded.
Article 111 TEC concerns the conclusion of formal agreements on an exchange-rate system for the ecu (nowadays euro) in relation to non-Community currencies.
Article 174 TEC concerns international agreements in the environmental area.
International agreements in the area of development cooperation are provided for by Article 180 TEC.
Agreements within the sphere of economic, financial and technical cooperation with third countries or international organisations are foreseen by Article 181a TEC, which also mentions the association agreements and the agreements to be concluded with membership candidates.
The flexibility clause Article 308 TEC has been used to fill voids.
***
Second and third pillar
Article 24 of the Treaty on European Union (TEU) refers to the procedure to conclude international agreements in implementation of the common foreign and security policy (CFSP; Title V) and police and judicial cooperation in criminal matters (Title VI; also Article 38 TEU).
***
Accession agreements
Accession treaties are an example of intergovernmental agreements, concluded between the acceding state and the existing member states (Article 50 TEU).
***
The current patchwork of treaty provisions is in need of clarification and reform. Operating on the international scene is complicated by the EC and EU split. The limits of EC and member state powers are far from clear in the light of the treaties.
It has fallen on the ECJ to give set out the respective external competences.
Ralf Grahn
***
Current treaties
Community pillar
The current divide between the European Community, with legal personality (Article 281 TEC), and the European Union, without, complicates the conclusion of international agreements and it is reflected in the existing main treaty provisions. (Cf. the latest consolidated version of the treaties, published OJEU 29.12.2006 C 321 E.)
Article 300 of the Treaty establishing the European Community (TEC) does not present a comprehensive view of the treaty making powers of the EC, but refers generally to the situations “Where this Treaty provides for the conclusion of agreements between the Community and one or more States or international organisations, …”. It then sets out the procedures for concluding treaties.
In addition, there are agreements with a more general scope and provisions related to a specific policy area or even a determined issue:
Article 310 TEC provides for the conclusion of association agreements with states or international organisations.
In the area of the common commercial policy (including customs tariffs and trade), the European Community exercises exclusive competence, with Article 133 TEC providing for international agreements to be concluded.
Article 111 TEC concerns the conclusion of formal agreements on an exchange-rate system for the ecu (nowadays euro) in relation to non-Community currencies.
Article 174 TEC concerns international agreements in the environmental area.
International agreements in the area of development cooperation are provided for by Article 180 TEC.
Agreements within the sphere of economic, financial and technical cooperation with third countries or international organisations are foreseen by Article 181a TEC, which also mentions the association agreements and the agreements to be concluded with membership candidates.
The flexibility clause Article 308 TEC has been used to fill voids.
***
Second and third pillar
Article 24 of the Treaty on European Union (TEU) refers to the procedure to conclude international agreements in implementation of the common foreign and security policy (CFSP; Title V) and police and judicial cooperation in criminal matters (Title VI; also Article 38 TEU).
***
Accession agreements
Accession treaties are an example of intergovernmental agreements, concluded between the acceding state and the existing member states (Article 50 TEU).
***
The current patchwork of treaty provisions is in need of clarification and reform. Operating on the international scene is complicated by the EC and EU split. The limits of EC and member state powers are far from clear in the light of the treaties.
It has fallen on the ECJ to give set out the respective external competences.
Ralf Grahn
Wednesday, 14 January 2009
EU Procurement Directive: International rules
Contracts with certain public entities outside the European Economic Area (EEA) are excluded from the European Community (European Union) Procurement Directive.
***
Article 15
According to Article 15 of the Procurement Directive 2004/18/EC, certain contracts awarded pursuant to international rules are excluded from the scope of the Directive:
Article 15
Contracts awarded pursuant to international rules
This Directive shall not apply to public contracts governed by different procedural rules and awarded:
(a) pursuant to an international agreement concluded in conformity with the Treaty between a Member State and one or more third countries and covering supplies or works intended for the joint implementation or exploitation of a work by the signatory States or services intended for the joint implementation or exploitation of a project by the signatory States; all agreements shall be communicated to the Commission, which may consult the Advisory Committee for Public Contracts referred to in Article 77;
(b) pursuant to a concluded international agreement relating to the stationing of troops and concerning the undertakings of a Member State or a third country;
(c) pursuant to the particular procedure of an international organisation.
***
International rules explained
Recital 22 of the Procurement mentions international rules briefly, without going into details:
(22) Provision should be made for cases in which it is possible to refrain from applying the measures for coordinating procedures on grounds relating to State security or secrecy, or because specific rules on the awarding of contracts which derive from international agreements, relating to the stationing of troops, or which are specific to international organisations are applicable.
***
Examples
Article 15(a) could cover for instance international development assistance agreements between an EEA member and an outside country (third state) on a large infrastructure project. (The WTO GPA does not apply to procurement made in furtherance of tied aid to developing countries.)
Article 15(b) could apply to host nation investments relating to the stationing of NATO troops.
Article 15(c) could apply if there is a link such as a project between a contracting authority and an international organisation with its own procurement rules. One example of procurement rules of an international organisation is the United Nations Procurement Manual based on the Financial Rules and Regulations:
http://www.un.org/Depts/ptd/pdf/pm_english_08.pdf
The World Bank has general guidelines and consultancy guidelines for projects financed in whole or in part by a loan from the International Bank for Reconstruction and Development (IBRD) or a credit or grant from the International Development Association (IDA), on the policies that govern the procurement of goods, works, and services:
http://web.worldbank.org/WBSITE/EXTERNAL/PROJECTS/PROCUREMENT/0,,contentMDK:50002392~pagePK:84269~piPK:60001558~theSitePK:84266,00.html
In each of these cases there are applicable international procedures, which exclude the Procurement Directive.
Ralf Grahn
***
Article 15
According to Article 15 of the Procurement Directive 2004/18/EC, certain contracts awarded pursuant to international rules are excluded from the scope of the Directive:
Article 15
Contracts awarded pursuant to international rules
This Directive shall not apply to public contracts governed by different procedural rules and awarded:
(a) pursuant to an international agreement concluded in conformity with the Treaty between a Member State and one or more third countries and covering supplies or works intended for the joint implementation or exploitation of a work by the signatory States or services intended for the joint implementation or exploitation of a project by the signatory States; all agreements shall be communicated to the Commission, which may consult the Advisory Committee for Public Contracts referred to in Article 77;
(b) pursuant to a concluded international agreement relating to the stationing of troops and concerning the undertakings of a Member State or a third country;
(c) pursuant to the particular procedure of an international organisation.
***
International rules explained
Recital 22 of the Procurement mentions international rules briefly, without going into details:
(22) Provision should be made for cases in which it is possible to refrain from applying the measures for coordinating procedures on grounds relating to State security or secrecy, or because specific rules on the awarding of contracts which derive from international agreements, relating to the stationing of troops, or which are specific to international organisations are applicable.
***
Examples
Article 15(a) could cover for instance international development assistance agreements between an EEA member and an outside country (third state) on a large infrastructure project. (The WTO GPA does not apply to procurement made in furtherance of tied aid to developing countries.)
Article 15(b) could apply to host nation investments relating to the stationing of NATO troops.
Article 15(c) could apply if there is a link such as a project between a contracting authority and an international organisation with its own procurement rules. One example of procurement rules of an international organisation is the United Nations Procurement Manual based on the Financial Rules and Regulations:
http://www.un.org/Depts/ptd/pdf/pm_english_08.pdf
The World Bank has general guidelines and consultancy guidelines for projects financed in whole or in part by a loan from the International Bank for Reconstruction and Development (IBRD) or a credit or grant from the International Development Association (IDA), on the policies that govern the procurement of goods, works, and services:
http://web.worldbank.org/WBSITE/EXTERNAL/PROJECTS/PROCUREMENT/0,,contentMDK:50002392~pagePK:84269~piPK:60001558~theSitePK:84266,00.html
In each of these cases there are applicable international procedures, which exclude the Procurement Directive.
Ralf Grahn
Thursday, 8 January 2009
EU Law: International research cooperation
A further option offered by the current Treaty establishing the European Community (TEC) is research cooperation between the European Community (European Union) and third countries or international organisations.
This international cooperation is tied to the multiannual framework programme, currently the European Community’s (European Union’s) Seventh Framework Programme for Research and Technological Development (FP7), running from 1 January 2007 to 31 December 2013.
After looking at the relevant treaty provisions, we offer some suggestions for further reading on the European Union’s efforts to promote international research cooperation.
***
Article 170 TEC
Article 170 (ex Article 130m) of the Treaty establishing the European Community (TEC) provides an option for the European Community to cooperate with third countries or international organisations when implementing the framework programme for research and technological development.
The cooperation is based on the framework programme, currently the Seventh Framework Programme for Research and Technological Development (FP7), running from 1 January 2007 to 31 December 2013.
The second paragraph of Article 170 TEC offers a second option (‘may’): international agreements between the EC (EU) and third countries or international organisations.
The paragraph refers to Article 300 TEC on negotiating and concluding international agreements.
The current Article 170 of the Treaty establishing the European Community (TEC), as published in the latest consolidated version of the treaties, OJEU 29.12.2006 C 321 E/122:
(TITLE XVIII
RESEARCH AND TECHNOLOGICAL DEVELOPMENT)
Article 170 TEC
In implementing the multiannual framework programme the Community may make provision for cooperation in Community research, technological development and demonstration with third countries or international organisations.
The detailed arrangements for such cooperation may be the subject of agreements between the Community and the third parties concerned, which shall be negotiated and concluded in accordance with Article 300.
***
Original Lisbon Treaty (ToL)
Article 2, point 141 amended Article 170 TEC (OJEU 17.12.2007 C 306/86):
141) In the second paragraph of Article 170, the words ‘, which shall be negotiated and concluded in accordance with Article 300’ shall be deleted.
***
Renumbering the Treaty of Lisbon (ToL)
(The Table of equivalences of the original Treaty of Lisbon tells us that Title XVIII first became Title XVIII with the addition of space in the TFEU (ToL), and later renumbered Title XIX Research and technological development and space in the consolidated version.)
Article 170 TEC initially became Article 170 TFEU (ToL) before the renumbering of the treaty made it into Article 186 TFEU in the consolidated version of the Lisbon Treaty (OJEU 17.12.2007 C 306/217–218).
***
Deleted procedure
The Treaty of Lisbon deleted the reference to the Article 300 procedure for negotiating and concluding international agreements. This was in line with Article III-252(4) of the Constitutional Treaty.
***
Lisbon Treaty consolidated
Article 186 TFEU
The ‘Community’ was replaced by the ‘Union’ (horizontal amendment) and the Article was renumbered. Article 186 TFEU dropped the reference to Article 300 TEC, and it appears like this in the consolidated version of the Treaty of Lisbon (OJEU 9.5.2008 C 115/131):
(TITLE XIX
RESEARCH AND TECHNOLOGICAL DEVELOPMENT AND SPACE)
Article 186 TFEU
(ex Article 170 TEC)
In implementing the multiannual framework programme the Union may make provision for cooperation in Union research, technological development and demonstration with third countries or international organisations.
The detailed arrangements for such cooperation may be the subject of agreements between the Union and the third parties concerned.
***
FP7 – Seventh Framework Programme (2007–2013)
Decision No 1982/2006/EC of the European Parliament and of the Council of 18 December 2006 concerning the Seventh Framework Programme of the European Community for research, technological development and demonstration activities (2007-2013), published in OJEU 30.12.2006 L 412/1, is available here:
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2006:412:0001:0041:EN:PDF
Recital 27 of the FP7 indicates the state of affairs and the efforts to strengthen international research cooperation:
(27) The Community has concluded a number of international agreements in the field of research and efforts should be made to strengthen international research cooperation with a view to reaping the full benefits of internationalisation of RTD, to contributing to the production of global public goods and to further integrating the Community into the world-wide research community.
***
Research Directorate-General
The Commission’s Directorate-General Research offers a gateway to International Cooperation here:
http://ec.europa.eu/research/iscp/index.cfm
A table of various agreements on research and technological development is accessible here:
http://ec.europa.eu/research/iscp/pdf/st_agreement_ec_euratom_en.pdf
The Commission staff working document A new approach to international scientific and technological co-operation in the 7th Research Framework Programme (2007-2013) and 7th Framework Programme of the European Atomic Energy Community (Euratom) (2007-2011), Bussels, 12.1.2007 SEC(2007)47, explains the objectives of the Commission to foster international research cooperation during the existing framework programmes:
http://ec.europa.eu/research/iscp/pdf/newapproach_en.pdf
The Commission has followed up with the recent forward looking Communication A strategic European framework for international science and technology cooperation, Brussels, 24 September 2008 COM (2008) 588 final:
http://ec.europa.eu/research/iscp/pdf/com_2008_588_en.pdf
This is how the Commission presents its view:
This Communication presents a strategic European framework for international cooperation in science and technology (S&T). It also covers the specific aspects of such cooperation in information and communication technologies (ICT).
By strengthening its research effort and facilitating the use of new technologies, Europe can respond more effectively and efficiently to the major challenges society is facing today. Deepening the European Research Area (ERA) through greater integration and cross-border coordination of research investments and activities will increase Europe's competitiveness and its attractiveness as a place to invest in research and innovation. Promoting European ICTs worldwide as a key driver of socio-economic growth will also contribute to the Growth and Jobs agenda1. Deepening the ERA should go hand in hand with widening it, through enhanced cooperation with international partners.
Ralf Grahn
This international cooperation is tied to the multiannual framework programme, currently the European Community’s (European Union’s) Seventh Framework Programme for Research and Technological Development (FP7), running from 1 January 2007 to 31 December 2013.
After looking at the relevant treaty provisions, we offer some suggestions for further reading on the European Union’s efforts to promote international research cooperation.
***
Article 170 TEC
Article 170 (ex Article 130m) of the Treaty establishing the European Community (TEC) provides an option for the European Community to cooperate with third countries or international organisations when implementing the framework programme for research and technological development.
The cooperation is based on the framework programme, currently the Seventh Framework Programme for Research and Technological Development (FP7), running from 1 January 2007 to 31 December 2013.
The second paragraph of Article 170 TEC offers a second option (‘may’): international agreements between the EC (EU) and third countries or international organisations.
The paragraph refers to Article 300 TEC on negotiating and concluding international agreements.
The current Article 170 of the Treaty establishing the European Community (TEC), as published in the latest consolidated version of the treaties, OJEU 29.12.2006 C 321 E/122:
(TITLE XVIII
RESEARCH AND TECHNOLOGICAL DEVELOPMENT)
Article 170 TEC
In implementing the multiannual framework programme the Community may make provision for cooperation in Community research, technological development and demonstration with third countries or international organisations.
The detailed arrangements for such cooperation may be the subject of agreements between the Community and the third parties concerned, which shall be negotiated and concluded in accordance with Article 300.
***
Original Lisbon Treaty (ToL)
Article 2, point 141 amended Article 170 TEC (OJEU 17.12.2007 C 306/86):
141) In the second paragraph of Article 170, the words ‘, which shall be negotiated and concluded in accordance with Article 300’ shall be deleted.
***
Renumbering the Treaty of Lisbon (ToL)
(The Table of equivalences of the original Treaty of Lisbon tells us that Title XVIII first became Title XVIII with the addition of space in the TFEU (ToL), and later renumbered Title XIX Research and technological development and space in the consolidated version.)
Article 170 TEC initially became Article 170 TFEU (ToL) before the renumbering of the treaty made it into Article 186 TFEU in the consolidated version of the Lisbon Treaty (OJEU 17.12.2007 C 306/217–218).
***
Deleted procedure
The Treaty of Lisbon deleted the reference to the Article 300 procedure for negotiating and concluding international agreements. This was in line with Article III-252(4) of the Constitutional Treaty.
***
Lisbon Treaty consolidated
Article 186 TFEU
The ‘Community’ was replaced by the ‘Union’ (horizontal amendment) and the Article was renumbered. Article 186 TFEU dropped the reference to Article 300 TEC, and it appears like this in the consolidated version of the Treaty of Lisbon (OJEU 9.5.2008 C 115/131):
(TITLE XIX
RESEARCH AND TECHNOLOGICAL DEVELOPMENT AND SPACE)
Article 186 TFEU
(ex Article 170 TEC)
In implementing the multiannual framework programme the Union may make provision for cooperation in Union research, technological development and demonstration with third countries or international organisations.
The detailed arrangements for such cooperation may be the subject of agreements between the Union and the third parties concerned.
***
FP7 – Seventh Framework Programme (2007–2013)
Decision No 1982/2006/EC of the European Parliament and of the Council of 18 December 2006 concerning the Seventh Framework Programme of the European Community for research, technological development and demonstration activities (2007-2013), published in OJEU 30.12.2006 L 412/1, is available here:
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2006:412:0001:0041:EN:PDF
Recital 27 of the FP7 indicates the state of affairs and the efforts to strengthen international research cooperation:
(27) The Community has concluded a number of international agreements in the field of research and efforts should be made to strengthen international research cooperation with a view to reaping the full benefits of internationalisation of RTD, to contributing to the production of global public goods and to further integrating the Community into the world-wide research community.
***
Research Directorate-General
The Commission’s Directorate-General Research offers a gateway to International Cooperation here:
http://ec.europa.eu/research/iscp/index.cfm
A table of various agreements on research and technological development is accessible here:
http://ec.europa.eu/research/iscp/pdf/st_agreement_ec_euratom_en.pdf
The Commission staff working document A new approach to international scientific and technological co-operation in the 7th Research Framework Programme (2007-2013) and 7th Framework Programme of the European Atomic Energy Community (Euratom) (2007-2011), Bussels, 12.1.2007 SEC(2007)47, explains the objectives of the Commission to foster international research cooperation during the existing framework programmes:
http://ec.europa.eu/research/iscp/pdf/newapproach_en.pdf
The Commission has followed up with the recent forward looking Communication A strategic European framework for international science and technology cooperation, Brussels, 24 September 2008 COM (2008) 588 final:
http://ec.europa.eu/research/iscp/pdf/com_2008_588_en.pdf
This is how the Commission presents its view:
This Communication presents a strategic European framework for international cooperation in science and technology (S&T). It also covers the specific aspects of such cooperation in information and communication technologies (ICT).
By strengthening its research effort and facilitating the use of new technologies, Europe can respond more effectively and efficiently to the major challenges society is facing today. Deepening the European Research Area (ERA) through greater integration and cross-border coordination of research investments and activities will increase Europe's competitiveness and its attractiveness as a place to invest in research and innovation. Promoting European ICTs worldwide as a key driver of socio-economic growth will also contribute to the Growth and Jobs agenda1. Deepening the ERA should go hand in hand with widening it, through enhanced cooperation with international partners.
Ralf Grahn
Sunday, 26 October 2008
European Central Bank Id: Legal personality
With legal personality the European Central Bank the capacity to act, subject to the EC Treaty and the ESCB Statute. We look at both authority and limits, within the member states and internationally.
We take a peek at the ECB’s privileges and immunities.
***
Legal personality
We remember that the European Central Bank is not mentioned among the European Community institutions in Article 7 of the Treaty establishing the European Community (TEC), but according to Article 8 TEC a European System of Central Banks (ESCB) and a European Central Bank (ECB) are established. They shall act within the limits of the powers conferred upon them by the TEC and by the treaty level Statute of the ESCB and the ECB.
Legal personality is one crucial aspect of these powers. Pursuant to Article 107(2) TEC, in the latest consolidated version of the treaties, OJ 29.12.2006 C 321 E/88:
2. The ECB shall have legal personality.
***
Internally
We notice that legal personality is accorded to the European Central Bank, not the European System of Central Banks.
Protocol (No 18) on the Statute of the European System of Central Banks and of the European Central Bank (1992) repeats, but also elaborates on the treaty provisions. Article 9.1 of the Statute adds the following, OJ 29.12.2006 C 321 E/259:
Article 9 ESCB Statute
The European Central Bank
9.1. The ECB which, in accordance with Article 107(2) of this Treaty, shall have legal personality, shall enjoy in each of the Member States the most extensive legal capacity accorded to legal persons under its law; it may, in particular, acquire or dispose of movable and immovable property and may be a party to legal proceedings.
9.2. The ECB shall ensure that the tasks conferred upon the ESCB under Article 105(2), (3) and (5) of this Treaty are implemented either by its own activities pursuant to this Statute or through the national central banks pursuant to Articles 12.1 and 14.
9.3. In accordance with Article 107(3) of this Treaty, the decision making bodies of the ECB shall be the Governing Council and the Executive Board.
***
Within the European Community (EC), or more exactly “in each of the Member States” the ECB shall have “the most extensive legal capacity accorded to legal persons under its law”. In other words, the exact scope is determined by and it varies according to the law of the member state.
The Satute mentions two examples, which means that the powers of the ECB to act are not necessarily restricted to them. Internally, the ECB’s legal capacity (to act) includes the following in every member state:
The ECB has the right to acquire and to dispose of property, both movable and immovable.
The other important example is that the ECB may be a party to legal proceedings.
Naturally, the European Central Bank exercises its powers within the limits conferred by the TEC and by the Statute of the ESCB and the ECB (objectives, tasks, substantial and procedural limitations).
***
Internationally
The International Court of Justice has given the following definition of the legal personality of an international organisation “That it is a subject of international law and capable of possessing international rights and duties, and that it has capacity to maintain its rights by bringing international claims” (as quoted in Ian Brownlie: Public International Law; Oxford University Press, 6th Edition, 2003; page 649).
Undoubtedly, the European Central Bank has capacity to act internationally, but subject to limitations. Naturally, the scope of the ECB’s activities is defined by its tasks (functionally). In addition, the ECB’s powers are limited by the competences accorded to the European Community, and in particular the EU Council.
***
International agreements
According to Article 111(1) TEC, formal agreements on an exchange-rate system for the euro in relation to non-Community currencies are concluded by the Council. The Council adopts, adjusts or abandons the central rates of the euro within the exchange-rate system.
The Council may formulate general orientations for exchange-rate policy in relation to non-Community currencies; Article 111(2) TEC.
Pursuant to Article 111(3) TEC, agreements concerning monetary or foreign exchange regime matters are negotiated and concluded by the Council on behalf of the Community. These agreements are binding on the EC, the ECB and the member states. (Both the first and the third paragraph are exceptions to Article 300 on the normal procedures for international agreements.)
The Council decides the international position of the European Community on issues of particular relevance to economic and monetary union (EMU), as well as on EC representation. (Article 111(4) TEC, with references to Articles 99 and 105).
But, in matters directly pertaining to its powers, the European Central Bank has concluded agreements with international organisations. The anti-counterfeiting agreements with Europol and Interpol can be mentioned as examples.
Another example is the Headquarters Agreement between the Government of the Federal Republic of Germany and the ECB concerning the seat of the ECB (29.12.1998):
http://www.ecb.europa.eu/ecb/legal/pdf/en_headquarters_agreement_final.pdf
The Headquarters Agreement in German (original):
http://www.ecb.europa.eu/ecb/legal/pdf/de_headquarters_agreement_f_published.pdf
***
Article 6.2 of the ESCB Statute foresees an international role for the ECB, in the form of participation in international monetary institutions, but subject to the EC positions defined by the Council, as indicated by Article 6.3 (OJ 29.12.2006 C 321 E/258):
Article 6 ESCB Statute
International cooperation
6.1. In the field of international cooperation involving the tasks entrusted to the ESCB, the ECB shall decide how the ESCB shall be represented.
6.2. The ECB and, subject to its approval, the national central banks may participate in international monetary institutions.
6.3. Articles 6.1 and 6.2 shall be without prejudice to Article 111(4) of this Treaty.
***
Clearing and payment systems
ESCB Statute Article 22 confers powers with an international dimension on the European Central Bank:
Article 22 ESCB Statute
Clearing and payment systems
The ECB and national central banks may provide facilities, and the ECB may make regulations, to ensure efficient and sound clearing and payment systems within the Community and with other countries.
***
International relations and transactions
Article 23 of the ESCB Statute authorises the ECB to establish relations with central banks and international (monetary) organisations (first indent) and conduct all types of banking transactions with third countries and international organisations (fourth indent).
Article 23 ESCB Statute
External operations
The ECB and national central banks may:
— establish relations with central banks and financial institutions in other countries and, where
appropriate, with international organisations;
— acquire and sell spot and forward all types of foreign exchange assets and precious metals; the
term ‘foreign exchange asset’ shall include securities and all other assets in the currency of any
country or units of account and in whatever form held;
— hold and manage the assets referred to in this Article;
— conduct all types of banking transactions in relations with third countries and international
organisations, including borrowing and lending operations.
***
Privileges and immunities
Article 40 of the ESCB Statute refers to the Privileges and immunities of the ECB, a reminder of the intergovernmental (international law) roots of the European Central Bank (as part of the framework of the European Union and the European Communities).
Article 40 ESCB Statute
Privileges and immunities
The ECB shall enjoy in the territories of the Member States such privileges and immunities as are necessary for the performance of its tasks, under the conditions laid down in the Protocol on the privileges and immunities of the European Communities.
Annexed to the Treaties establishing the European Community and the European Atomic Energy Community, Protocol (No 36) on the privileges and immunities of the European Communities (1965), accords to the Communities and to the European Investment Bank in the territories of the Member States such privileges and immunities as are necessary for the performance of their tasks;
OJ 29.12.2006 C 321 E/318
Article 23 of Protocol No 36 extends the application to the European Central Bank:
Article 23 Protocol on privileges and immunities
This Protocol shall also apply to the European Central Bank, to the members of its organs and to its staff, without prejudice to the provisions of the Protocol on the Statute of the European System of Central Banks and the European Central Bank.
The European Central Bank shall, in addition, be exempt from any form of taxation or imposition of a like nature on the occasion of any increase in its capital and from the various formalities which may be connected therewith in the State where the bank has its seat. The activities of the Bank and of its organs carried on in accordance with the Statute of the European System of Central Banks and of the European Central Bank shall not be subject to any turnover tax.
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The privileges and immunities granted to the European Communities and the European Central Bank are largely comparable with privileges and immunities customary in diplomatic relations, as codified under the aegis of the United Nations in the Vienna Convention on Diplomatic Relations (1961; in force since 1964).
The Vienna Convention can be accessed at:
http://untreaty.un.org/ilc/texts/instruments/english/conventions/9_1_1961.pdf
***
Liability
The principles regarding the European Community’s non-contractual liability apply to damage caused by the European Central Bank or its servants in the performance of their duties; Article 288 TEC. Pursuant to Article 235 TEC, the Court of Justice has jurisdiction.
Ralf Grahn
We take a peek at the ECB’s privileges and immunities.
***
Legal personality
We remember that the European Central Bank is not mentioned among the European Community institutions in Article 7 of the Treaty establishing the European Community (TEC), but according to Article 8 TEC a European System of Central Banks (ESCB) and a European Central Bank (ECB) are established. They shall act within the limits of the powers conferred upon them by the TEC and by the treaty level Statute of the ESCB and the ECB.
Legal personality is one crucial aspect of these powers. Pursuant to Article 107(2) TEC, in the latest consolidated version of the treaties, OJ 29.12.2006 C 321 E/88:
2. The ECB shall have legal personality.
***
Internally
We notice that legal personality is accorded to the European Central Bank, not the European System of Central Banks.
Protocol (No 18) on the Statute of the European System of Central Banks and of the European Central Bank (1992) repeats, but also elaborates on the treaty provisions. Article 9.1 of the Statute adds the following, OJ 29.12.2006 C 321 E/259:
Article 9 ESCB Statute
The European Central Bank
9.1. The ECB which, in accordance with Article 107(2) of this Treaty, shall have legal personality, shall enjoy in each of the Member States the most extensive legal capacity accorded to legal persons under its law; it may, in particular, acquire or dispose of movable and immovable property and may be a party to legal proceedings.
9.2. The ECB shall ensure that the tasks conferred upon the ESCB under Article 105(2), (3) and (5) of this Treaty are implemented either by its own activities pursuant to this Statute or through the national central banks pursuant to Articles 12.1 and 14.
9.3. In accordance with Article 107(3) of this Treaty, the decision making bodies of the ECB shall be the Governing Council and the Executive Board.
***
Within the European Community (EC), or more exactly “in each of the Member States” the ECB shall have “the most extensive legal capacity accorded to legal persons under its law”. In other words, the exact scope is determined by and it varies according to the law of the member state.
The Satute mentions two examples, which means that the powers of the ECB to act are not necessarily restricted to them. Internally, the ECB’s legal capacity (to act) includes the following in every member state:
The ECB has the right to acquire and to dispose of property, both movable and immovable.
The other important example is that the ECB may be a party to legal proceedings.
Naturally, the European Central Bank exercises its powers within the limits conferred by the TEC and by the Statute of the ESCB and the ECB (objectives, tasks, substantial and procedural limitations).
***
Internationally
The International Court of Justice has given the following definition of the legal personality of an international organisation “That it is a subject of international law and capable of possessing international rights and duties, and that it has capacity to maintain its rights by bringing international claims” (as quoted in Ian Brownlie: Public International Law; Oxford University Press, 6th Edition, 2003; page 649).
Undoubtedly, the European Central Bank has capacity to act internationally, but subject to limitations. Naturally, the scope of the ECB’s activities is defined by its tasks (functionally). In addition, the ECB’s powers are limited by the competences accorded to the European Community, and in particular the EU Council.
***
International agreements
According to Article 111(1) TEC, formal agreements on an exchange-rate system for the euro in relation to non-Community currencies are concluded by the Council. The Council adopts, adjusts or abandons the central rates of the euro within the exchange-rate system.
The Council may formulate general orientations for exchange-rate policy in relation to non-Community currencies; Article 111(2) TEC.
Pursuant to Article 111(3) TEC, agreements concerning monetary or foreign exchange regime matters are negotiated and concluded by the Council on behalf of the Community. These agreements are binding on the EC, the ECB and the member states. (Both the first and the third paragraph are exceptions to Article 300 on the normal procedures for international agreements.)
The Council decides the international position of the European Community on issues of particular relevance to economic and monetary union (EMU), as well as on EC representation. (Article 111(4) TEC, with references to Articles 99 and 105).
But, in matters directly pertaining to its powers, the European Central Bank has concluded agreements with international organisations. The anti-counterfeiting agreements with Europol and Interpol can be mentioned as examples.
Another example is the Headquarters Agreement between the Government of the Federal Republic of Germany and the ECB concerning the seat of the ECB (29.12.1998):
http://www.ecb.europa.eu/ecb/legal/pdf/en_headquarters_agreement_final.pdf
The Headquarters Agreement in German (original):
http://www.ecb.europa.eu/ecb/legal/pdf/de_headquarters_agreement_f_published.pdf
***
Article 6.2 of the ESCB Statute foresees an international role for the ECB, in the form of participation in international monetary institutions, but subject to the EC positions defined by the Council, as indicated by Article 6.3 (OJ 29.12.2006 C 321 E/258):
Article 6 ESCB Statute
International cooperation
6.1. In the field of international cooperation involving the tasks entrusted to the ESCB, the ECB shall decide how the ESCB shall be represented.
6.2. The ECB and, subject to its approval, the national central banks may participate in international monetary institutions.
6.3. Articles 6.1 and 6.2 shall be without prejudice to Article 111(4) of this Treaty.
***
Clearing and payment systems
ESCB Statute Article 22 confers powers with an international dimension on the European Central Bank:
Article 22 ESCB Statute
Clearing and payment systems
The ECB and national central banks may provide facilities, and the ECB may make regulations, to ensure efficient and sound clearing and payment systems within the Community and with other countries.
***
International relations and transactions
Article 23 of the ESCB Statute authorises the ECB to establish relations with central banks and international (monetary) organisations (first indent) and conduct all types of banking transactions with third countries and international organisations (fourth indent).
Article 23 ESCB Statute
External operations
The ECB and national central banks may:
— establish relations with central banks and financial institutions in other countries and, where
appropriate, with international organisations;
— acquire and sell spot and forward all types of foreign exchange assets and precious metals; the
term ‘foreign exchange asset’ shall include securities and all other assets in the currency of any
country or units of account and in whatever form held;
— hold and manage the assets referred to in this Article;
— conduct all types of banking transactions in relations with third countries and international
organisations, including borrowing and lending operations.
***
Privileges and immunities
Article 40 of the ESCB Statute refers to the Privileges and immunities of the ECB, a reminder of the intergovernmental (international law) roots of the European Central Bank (as part of the framework of the European Union and the European Communities).
Article 40 ESCB Statute
Privileges and immunities
The ECB shall enjoy in the territories of the Member States such privileges and immunities as are necessary for the performance of its tasks, under the conditions laid down in the Protocol on the privileges and immunities of the European Communities.
Annexed to the Treaties establishing the European Community and the European Atomic Energy Community, Protocol (No 36) on the privileges and immunities of the European Communities (1965), accords to the Communities and to the European Investment Bank in the territories of the Member States such privileges and immunities as are necessary for the performance of their tasks;
OJ 29.12.2006 C 321 E/318
Article 23 of Protocol No 36 extends the application to the European Central Bank:
Article 23 Protocol on privileges and immunities
This Protocol shall also apply to the European Central Bank, to the members of its organs and to its staff, without prejudice to the provisions of the Protocol on the Statute of the European System of Central Banks and the European Central Bank.
The European Central Bank shall, in addition, be exempt from any form of taxation or imposition of a like nature on the occasion of any increase in its capital and from the various formalities which may be connected therewith in the State where the bank has its seat. The activities of the Bank and of its organs carried on in accordance with the Statute of the European System of Central Banks and of the European Central Bank shall not be subject to any turnover tax.
-----
The privileges and immunities granted to the European Communities and the European Central Bank are largely comparable with privileges and immunities customary in diplomatic relations, as codified under the aegis of the United Nations in the Vienna Convention on Diplomatic Relations (1961; in force since 1964).
The Vienna Convention can be accessed at:
http://untreaty.un.org/ilc/texts/instruments/english/conventions/9_1_1961.pdf
***
Liability
The principles regarding the European Community’s non-contractual liability apply to damage caused by the European Central Bank or its servants in the performance of their duties; Article 288 TEC. Pursuant to Article 235 TEC, the Court of Justice has jurisdiction.
Ralf Grahn
Wednesday, 23 January 2008
EU Treaty of Lisbon: International agreements
International agreements are important instruments to further the objectives of the European Union in its external relations. This time we look at the basic provision in the Treaty of Lisbon relating to international agreements in the area of the common foreign and security policy (CFSP), in comparison with the corresponding provisions in the existing Treaty on European Union (TEU), the draft Constitution and the Constitutional Treaty. We briefly refer to the relevant procedural articles in the new Treaty on the Functioning of the European Union (TFEU).
The CFSP provisions, including those on international agreements, belong to the sphere of intergovernmental cooperation, as opposed to certain supranational ‘Community’ powers.
***
The intergovernmental conference (IGC 2007) concluded the following in the Treaty of Lisbon (OJ 17.12.2007 C 306/30):
41) The text of Article 22 shall become Article 15a; it shall be amended as set out above in point 33.
42) The text of Article 23 shall become Article 15b; it shall be amended as set out above in point 34.
43) Article 24 shall be replaced by the following:
Article 24 TEU
The Union may conclude agreements with one or more States or international organisations in areas covered by this Chapter.
***
In the existing consolidated Treaty on European Union (TEU; latest consolidation OJ 29.12.2006 C 321 E/20 and 21) Article 24 contains both the principles and the procedures relating to international agreements under Title V, the common foreign and security policy (CFSP), and Title VI, Police and judicial cooperation in criminal matters.
Article 24
1. When it is necessary to conclude an agreement with one or more States or international
organisations in implementation of this title, the Council may authorise the Presidency, assisted by the Commission as appropriate, to open negotiations to that effect. Such agreements shall be
concluded by the Council on a recommendation from the Presidency.
2. The Council shall act unanimously when the agreement covers an issue for which unanimity
is required for the adoption of internal decisions.
3. When the agreement is envisaged in order to implement a joint action or common position,
the Council shall act by a qualified majority in accordance with Article 23(2).
4. The provisions of this Article shall also apply to matters falling under Title VI. When the
agreement covers an issue for which a qualified majority is required for the adoption of internal
decisions or measures, the Council shall act by a qualified majority in accordance with Article 34
(3).
5. No agreement shall be binding on a Member State whose representative in the Council states
that it has to comply with the requirements of its own constitutional procedure; the other
members of the Council may agree that the agreement shall nevertheless apply provisionally.
6. Agreements concluded under the conditions set out by this Article shall be binding on the
institutions of the Union.
***
In addition, we take note of the existing Treaty establishing the European Community (TEC) Article 300, which concerns the conclusion of international agreements by the European Community (EC).
***
The Convention proposed the following Article III-2004 in the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C169/67):
Article III-204
The Union may conclude agreements with one or more States or international organisations pursuant to this Chapter, in accordance with the procedure described in Article III-227.
***
In the Treaty establishing a Constitution for Europe actually signed by the member states, the corresponding Article was III-303 (OJ 16.12.2004 C 310/137):
Article III-303
The Union may conclude agreements with one or more States or international organisations in areas covered by this Chapter.
***
We see that the Lisbon Treaty Article 24 TEU has the same wording as the Constitutional Treaty Article III-303. While the likeness of the Reform Treaty and the Constitutional Treaty is evident in many instances, the essential continuity between many of the provisions existing Treaties and the Lisbon Treaty should not be forgotten.
The scope of the proposed Article 24 TEU is narrower, since it refers only to areas covered in Chapter 2, i.e. the common foreign and security policy (CFSP), which remains in the intergovernmental domain.
In the new Article 24 TEU, there are no procedural rules and no reference to those provisions. We find them in the new Treaty on the functioning of the European Union (TFEU), Part V External action by the Union, Title V International agreements, especially Article 188n TFEU, with provisions on the opening of negotiations, the issuing of directives to the negotiator and the conclusion of the agreement.
Since the European Community (EC), which has legal personality, is merged into the European Union (EU), on which legal personality is conferred, there is no need for separate provisions on the account of different entities. But the competences of the intergovernmental Council and the ‘communitarian’ Commission remain distinct.
When the agreements relate exclusively to the CFSP, the Council adopts the decision concluding the agreement. In other cases the European Parliament is only consulted, if the consent of the EP is not expressly provided for, Article 188n(6) TFEU.
***
Next time we look at the Political and Security Committee (PSC).
Ralf Grahn
The CFSP provisions, including those on international agreements, belong to the sphere of intergovernmental cooperation, as opposed to certain supranational ‘Community’ powers.
***
The intergovernmental conference (IGC 2007) concluded the following in the Treaty of Lisbon (OJ 17.12.2007 C 306/30):
41) The text of Article 22 shall become Article 15a; it shall be amended as set out above in point 33.
42) The text of Article 23 shall become Article 15b; it shall be amended as set out above in point 34.
43) Article 24 shall be replaced by the following:
Article 24 TEU
The Union may conclude agreements with one or more States or international organisations in areas covered by this Chapter.
***
In the existing consolidated Treaty on European Union (TEU; latest consolidation OJ 29.12.2006 C 321 E/20 and 21) Article 24 contains both the principles and the procedures relating to international agreements under Title V, the common foreign and security policy (CFSP), and Title VI, Police and judicial cooperation in criminal matters.
Article 24
1. When it is necessary to conclude an agreement with one or more States or international
organisations in implementation of this title, the Council may authorise the Presidency, assisted by the Commission as appropriate, to open negotiations to that effect. Such agreements shall be
concluded by the Council on a recommendation from the Presidency.
2. The Council shall act unanimously when the agreement covers an issue for which unanimity
is required for the adoption of internal decisions.
3. When the agreement is envisaged in order to implement a joint action or common position,
the Council shall act by a qualified majority in accordance with Article 23(2).
4. The provisions of this Article shall also apply to matters falling under Title VI. When the
agreement covers an issue for which a qualified majority is required for the adoption of internal
decisions or measures, the Council shall act by a qualified majority in accordance with Article 34
(3).
5. No agreement shall be binding on a Member State whose representative in the Council states
that it has to comply with the requirements of its own constitutional procedure; the other
members of the Council may agree that the agreement shall nevertheless apply provisionally.
6. Agreements concluded under the conditions set out by this Article shall be binding on the
institutions of the Union.
***
In addition, we take note of the existing Treaty establishing the European Community (TEC) Article 300, which concerns the conclusion of international agreements by the European Community (EC).
***
The Convention proposed the following Article III-2004 in the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C169/67):
Article III-204
The Union may conclude agreements with one or more States or international organisations pursuant to this Chapter, in accordance with the procedure described in Article III-227.
***
In the Treaty establishing a Constitution for Europe actually signed by the member states, the corresponding Article was III-303 (OJ 16.12.2004 C 310/137):
Article III-303
The Union may conclude agreements with one or more States or international organisations in areas covered by this Chapter.
***
We see that the Lisbon Treaty Article 24 TEU has the same wording as the Constitutional Treaty Article III-303. While the likeness of the Reform Treaty and the Constitutional Treaty is evident in many instances, the essential continuity between many of the provisions existing Treaties and the Lisbon Treaty should not be forgotten.
The scope of the proposed Article 24 TEU is narrower, since it refers only to areas covered in Chapter 2, i.e. the common foreign and security policy (CFSP), which remains in the intergovernmental domain.
In the new Article 24 TEU, there are no procedural rules and no reference to those provisions. We find them in the new Treaty on the functioning of the European Union (TFEU), Part V External action by the Union, Title V International agreements, especially Article 188n TFEU, with provisions on the opening of negotiations, the issuing of directives to the negotiator and the conclusion of the agreement.
Since the European Community (EC), which has legal personality, is merged into the European Union (EU), on which legal personality is conferred, there is no need for separate provisions on the account of different entities. But the competences of the intergovernmental Council and the ‘communitarian’ Commission remain distinct.
When the agreements relate exclusively to the CFSP, the Council adopts the decision concluding the agreement. In other cases the European Parliament is only consulted, if the consent of the EP is not expressly provided for, Article 188n(6) TFEU.
***
Next time we look at the Political and Security Committee (PSC).
Ralf Grahn
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