State of the Union: legislative worries

The European Commission’s English only State of the Union 2017 web page does not offer any updates this morning, but it only means that we have to look elsewhere for important developments.

Digital tax and Tallinn summit

Yesterday the Commission outlined a path towards fair taxation in the digital economy: press release IP/17/3305, questions and answers MEMO/17/3341 and vice-president Valdis Dombrovskis SPEECH/17/3402.

The exploratory communication is already available on the EU’s legal portal Eur-Lex, but at this time only in English:

A Fair and Efficient Tax System in the European Union for the Digital Single Market; Brussels, 21.9.2017 COM(2017) 547 final

The upcoming, 29 September 2017 Tallinn Digital Summit, arranged by the Estonian presidency of the Council of the European Union, offers the heads of state or government an opportunity to ponder the role of taxation as part of Europe’s digital future and the emerging digital single market.  For more detailed information, check the digital summit background paper and the state of play of the digital single market.

Naturally, it is economically important, especially for important American corporations, that the EU-US privacy shield fiction has received a clean bill of health: STATEMENT/17/3342.

Legislative worries

The next section in the State of the Union 2017 brochure (108 pages) is called the Policy Implementation Report (from page 79).

Against the backdrop of the blog post State of the Union: better regulation and enforcement and the corresponding brochure sections, the Policy Implementation Report offers a summary of the situation (page 80):  

Legislative Priorities: State of Play

On 13 December 2016, the European Parliament, the Council and the European Commission agreed on a Joint Declaration on the EU’s legislative priorities for 2017. They highlighted 58 initiatives for which a priority treatment in the legislative process was needed to help address the biggest of the European Union’s economic, environmental and societal challenges. The three institutions committed to ensure substantial progress and, where possible, delivery before the end of 2017. Of these 58 Commission proposals, 11 have already been agreed by the European Parliament and the Council and have therefore been delivered. If there is political will from the co-legislators, 19 initiatives are likely to be agreed by the end of 2017. For the remaining 28 proposals, agreement or substantial progress is unlikely to occur in 2017. For these outstanding proposals, the European Parliament and Council do not always move at the same pace, with one or the other accelerating or slowing progress. Strong political commitment from all EU Institutions will be required to complete these proposals in 2018.

The brochure then summarises progress for each of these 58 priority proposals in a convenient way; you can see the situation almost at a glance.

The presentation is technically beautiful, but the situation is worrying: 28 out of 58 legislative initiatives are stuck in the European Parliament or the EU Council, or both.

For more detailed views you can consult European Parliamentary Research Service EPRS publication The European Commission at mid-term and European Parliaments legislative train schedule (updated to the end of June).

Remaining sections

The sections of the State of the Union 2017 brochure still to cover are:

The European Solidarity Corps: One Year on

Visits to national Parliaments

Citizens’ Dialogues

Letter on the Roadmap for a More United, Stronger and a More Democratic Union  

Ralf Grahn

Information society, ACTA and copyright legislation

Here they are, in all their glory, the 22 language versions of ACTA, the Anti-Counterfeiting Trade Agreement. But, as we soon find out, the European Union and its Member States, Australia, Canada, Japan, the Republic of Korea, the United Mexican States, the Kingdom of Morocco, New Zealand, the Republic of Singapore, the Swiss Confederation and the United States of America did not limit their ambitions to anti-counterfeiting.

If you look at the proposal, you soon find out that the aim of ACTA is ”to effectively combat the infringement of intellectual property rights (IPR)” in general, including by ”provisions on civil, criminal, border and digital environment enforcement measures, robust cooperation mechanisms among ACTA Parties to assist in their enforcement efforts, and the establishment of best practices for effective IPR enforcement”.

Intellectual property in ACTA refers to all categories of intellectual property that are the subject of Sections 1 through 7 of Part II of the TRIPS Agreement, including copyright.


Troubling questions

How should governments and parliaments legislate for the information society, where they easily seem to end up defending outdated models and particular interests against the digital natives (who are also citizens) and, perhaps, the general interest?

How important is trust and interaction between governments and the governed? Legitimacy?

When does legislation drive innovation, and when does it drive it away?


Infosoc roundup

These questions have cropped up in my latest blog posts, written in Finnish (FI), Swedish (SV) and English (EN).

Grahnlaw (EN): ACTA update (in part)

Grahnlaw (EN): ACTA in European Parliament committees: International Trade and Development

Grahnlaw (EN): ACTA in European Parliament committees: Legal Affairs (JURI)

Grahnblawg (SV): Framtiden online i Riksdagen

Eurooppaoikeus (FI): Tekijänoikeustoimikunta verkkopiratismia vastaan

Grahnlaw (EN): Information society, online media and Bloggingportal.eu

Grahnlblawg (SV): Upphovsrättskommissionen i Finland angriper nätpiratismen

Grahnlaw (EN): A communication disaster called ACTA

Grahnlaw (EN): ACTA signatures and content

Eurooppaoikeus (FI): ACTA ja fakta

Grahnblawg (SV): Lagstifta för den digitala världen, inte gårdagen – ACTA?

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Getting the facts straight and the arguments based on evidence would help meeting the challenges of our common digital agenda.



Ralf Grahn


P.S. Bloggingportal.eu, the multilingual aggregator of euroblogs, joins the national and thematical blogospheres at the European level.

Speed of EU legislation: Audiovisual Media Services Directive

In the comments section of a blog post of his, Julien Frisch mentioned ‘the speed of legislation’. This tied in nicely with the Grahnlaw series on the birth of the AVMS Directive 2007/65, a fairly typical legislative process in the European Union, I would say.



The blog post EU Audiovisual Media Services Directive proposal: Structure and essentials (6 January 2010) described how the Commission’s proposal was constructed and related the main substance of the proposed amending Diretive.



The Commission proposal COM(2005) 646 final tells us that the first consultation round was launched in 2003, followed by a Communication and hearings, leading to the 13 December 2005 proposal.



The web page of the procedure file COD/2005/0260 on Oeil, the Legislative Observatory of the European Parliament, tells us that the legislative process contained i.a. committee work and a first reading position by the EP, a modified proposal by the Commission and a common position by the Council, followed by a Commission communication on the common position, which paved the way for the Parliament’s second reading position.

The final amending Directive was adopted 11 December 2007 and published in the Official Journal 18 December 2007.

However, this was not the end of it. The EU member states were given two years from publication to adopt the necessary measures to turn the AVMS Directive into national law; the so called transposition date was 19 December 2009.

This was not a groundbreaking legal act, but an amending Directive. From launch to effect, the legislative procedure(s) lasted between five and six years, almost the time it takes a human to progress from womb to school.




Ralf Grahn



P.S. Jon Worth may be young of age, but in the euroblogosphere he is one of the grand old men, debating European issues across national borders. His professionally designed blog is listed among the more than 500 great euroblogs on multilingual Bloggingportal.eu, a useful one-stop-shop for fact, opinion and gossip on European affairs, i.a. politics, policies, economics, finance and law.

EU Audiovisual Media Services Directive (AVMS Directive): Learning the ropes

In the previous blog post, EU Audiovisual Media Services: History, amendments & consolidation (28 December 2009), we sketched the history from the Television without Frontiers Directive 1989 to the “new”, amending TVWF Directive 1997.



Consolidation

In this context we mentioned the consolidated version of the Directive. One of the many useful EU web resources for people willing to learn is the Europa Glossary, which offers more or less intelligible explanations of EU jargon and terms.

Here is what Europa Glossary has to say on consolidation of legislation (informal or declaratory):

There is a special procedure for unofficial, purely declaratory consolidation of legislation and simplification of legal instruments. The incorporation of subsequent amendments into the body of a basic act does not entail the adoption of a new instrument. It is simply a clarification exercise conducted by the Commission. The resulting text, which has no formal legal effect, can, where appropriate, be published in the Official Journal (C Series) without citations or recitals.

In other words, the consolidated version offers you the updated text of the Articles in force. In the 1997 consolidation, the text of Directive 97/36 had been inserted into Directive 89/552.

But if you need to know the Whys of the legal Act, you have read the Recitals (Whereas) of the original Act, as well as the Recitals of the amending Act(s) with regard to the reasons and scope of the amendments.

If you want to dig deeper, the Recitals offer you the legislative history of the Acts: “legal basis”, references to the Commission proposal, opinions and resolutions. For this you need either the original Acts or to access the files on the legislative processes on Pre-Lex or Oeil.



Audiovisual Media Services Directive (AVMS Directive)


In this case, we knew that there was a further major amendment to the TVWF Directive(s). We knew the number of the original TVWF Directive 89/552 (the amending Directive 97/36) and the latest amending AVMS Directive 2007/65.



Since we were interested in the latest amendment, we tried the simple search on Eur-Lex, filling in Directive, year 2007 and number 65 for the amending Directive under Natural number.



The page offered us access to the Bibliographic notice, which gave us the procedure number COD/2005/0260 and the Commission’s original proposal COM(2005) 646, among other things. There was also a link to the European Parliament’s Legislative Observatory Oeil.



The procedure file on Oeil is a gold mine, because at one glance it offers a view of the Commission’s original and modified proposals, the Council’s position and the European Parliament’s Committee reports and resolutions.



Procedure and substance


This blog post tried to offer readers examples of how to navigate the legislative procedures, in order to access and to understand EEC/EC/EU legal acts.

Procedural understanding offers generally applicable tools for interested users, but this mini-series started from a genuine interest into the substance of developing EU regulation of television broadcasting and audiovisual services.

The time has come, I think, to turn to the substance of the latest amending act, the AVMS Directive.

This will be the aim of future posts, intertwined with procedural remarks, when called for.




Ralf Grahn



P.S. Read Julien Frisch and other great euroblog(ger)s listed on multilingual Bloggingportal.eu, our common “village well” for fact, opinion and gossip on European affairs.

New Compilation of State Aid Rules December 2009

A great resource for public authorities (state, regional and local entities), businesses and advisors in the EU member states: The European Commission publishes a compilation of the state aid rules in force. The latest issue is of 1 December 2009, and it is currently available in English, French and German. Other language versions have been promised.



The compilation, officially EU Competition Law ─ Rules Applicable to State Aid ─ Situation as at 1 December 2009, contains the legislation applicable to manufacturing industry and services. It does not contain the specific rules applicable to agriculture, fisheries, transport and coal.


The compilation is a huge pdf file, at least for humans: 14.8 MB and 732 pages. The electronic publication offers links to the Official Journal of the European Union, which makes it easy for lawyers to access the language version they need.



Alternatively, each of the ten sections can be downloaded separately from the web page Compilation of state aid rules in force.

In addition to the Table of contents, the sections are:


A. Treaty provisions on State aid
B. General Procedural Rules
C. Enabling Regulation and General Block Exemption Regulation
D. Temporary rules established in response to the economic and financial crisis
E. Horizontal rules
F. Sector-specific rules
G. Specific aid instruments
H. Reference/discount rates and recovery interest rates
I. Transparency of Financial Relations between Member States and Public Undertakings
J. Services of General Economic Interest (SGEI)


The web page also lists the latest updates to the compilation of state aid rules.


Competition policy overview



In addition to the State Aid Scoreboard December 2009, presented in the blog post EU State Aid Scoreboard December 2009, one possibility to get on overview of fairly recent developments in competition policy, including state aid, is offered by the Commission’s Report on Competition Policy 2008, Brussels, 23.7.2009 COM(2009) 374 final (31 pages), and the accompanying Staff working document SEC(2009) 10004.




Ralf Grahn



P.S. Growing, multilingual Bloggingportal.eu now aggregates 494 euroblogs. Blogging associations, networks, businesses, politicians, activists and interested citizens meet at our “village well” Bloggingportal.eu for facts, opinions and gossip on EU affairs and European themes.

State aid in EU Lisbon Treaty: Procedures and legislation

The blog post State aid in EU Lisbon Treaty: Prohibition and derogations presented the substantive Lisbon Treaty provision on state aid: a wide-ranging prohibition, but with obligatory and discretionary exemptions.

This post offers a reminder of Articles 108 and 109 of the Treaty on the Functioning of the European Union (TFEU), the treaty provisions on state aid procedures and legislation (OJEU 9.5.2008 C 115).



State aid procedures


Review and recovery of state aid, notification by member states and group exemptions from notification requirements are provided for in the procedural Article 108 TFEU:

Article 108 TFEU
(ex Article 88 TEC)

1. The Commission shall, in cooperation with Member States, keep under constant review all systems of aid existing in those States. It shall propose to the latter any appropriate measures required by the progressive development or by the functioning of the internal market.

2. If, after giving notice to the parties concerned to submit their comments, the Commission finds that aid granted by a State or through State resources is not compatible with the internal market having regard to Article 107, or that such aid is being misused, it shall decide that the State concerned shall abolish or alter such aid within a period of time to be determined by the Commission.

If the State concerned does not comply with this decision within the prescribed time, the Commission or any other interested State may, in derogation from the provisions of Articles 258 and 259, refer the matter to the Court of Justice of the European Union direct.

On application by a Member State, the Council may, acting unanimously, decide that aid which that State is granting or intends to grant shall be considered to be compatible with the internal market, in derogation from the provisions of Article 107 or from the regulations provided for in Article 109, if such a decision is justified by exceptional circumstances. If, as regards the aid in question, the Commission has already initiated the procedure provided for in the first subparagraph of this paragraph, the fact that the State concerned has made its application to the Council shall have the effect of suspending that procedure until the Council has made its attitude known.

If, however, the Council has not made its attitude known within three months of the said application being made, the Commission shall give its decision on the case.

3. The Commission shall be informed, in sufficient time to enable it to submit its comments, of any plans to grant or alter aid. If it considers that any such plan is not compatible with the internal market having regard to Article 107, it shall without delay initiate the procedure provided for in paragraph 2. The Member State concerned shall not put its proposed measures into effect until this
procedure has resulted in a final decision.

4. The Commission may adopt regulations relating to the categories of State aid that the Council has, pursuant to Article 109, determined may be exempted from the procedure provided for by paragraph 3 of this Article.

State aid legislation


Article 109 TFEU is the legal base for EU legislation on state aid:

Article 109
(ex Article 89 TEC)

The Council, on a proposal from the Commission and after consulting the European Parliament, may make any appropriate regulations for the application of Articles 107 and 108 and may in particular determine the conditions in which Article 108(3) shall apply and the categories of aid exempted from this procedure.

Protocols and Declaration

In the context of state aid, the following Protocols and Declarations are relevant: Protocol (No 27) on the internal market and competition, Protocol (No 29) on the system of public broadcasting in the Member States, and Declaration (29) on Article 107(2)(c) of the Treaty on the Functioning of the European Union.

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After these two introductory blog posts on the state aid provisions in the Lisbon Treaty, we turn to the latest State Aid Scoreboard from the European Commission in a coming post.


Ralf Grahn



P.S. Growing, multilingual Bloggingportal.eu now aggregates 494 blogs on European questions, EU politics and policies, by associations, networks, businesses and individual bloggers. Find fact, opinion and gossip on Bloggingportal.eu, our European “village well”.

European Union: Renewable energy legislation

The latest thematic file on EU legislation over at the legal portal Eur-Lex is Renewable energy (posted 26 June 2009).



Overview of EU law

Thematic files are collections of legal documents on specific fields of EU activity (legislative instruments, preparatory acts, case law, parliamentary questions, etc.).

The idea is not to be exhaustive but rather to group together the most relevant current legislation on the subject in question.

You can consult related acts and/or acts amending original acts in the bibliographic entry for each document.

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The thematic files are handy references for everyone interested in a particular policy area.


Ralf Grahn

European Union: Better regulation

On its road to an ever closer union among the peoples of Europe, the European Union has as its task, by establishing a common market and an economic and monetary union and by implementing common policies or activities, to promote throughout the European Community a harmonious, balanced and sustainable development of economic activities, a high level of employment and of social protection, equality between men and women, sustainable and non-inflationary growth, a high degree of competitiveness and convergence of economic performance, a high level of protection and improvement of the quality of the environment, the raising of the standard of living and quality of life, and economic and social cohesion and solidarity among Member States (Article 1 TEC).


Social market economy

Among the modernised aims of the European Union, in the Lisbon Treaty Article 3(3) TEU, we find “a highly competitive social market economy”:

“3. The Union shall establish an internal market. It shall work for the sustainable development of Europe based on balanced economic growth and price stability, a highly competitive social market economy, aiming at full employment and social progress, and a high level of protection and improvement of the quality of the environment. It shall promote scientific and technological advance.

It shall combat social exclusion and discrimination, and shall promote social justice and protection, equality between women and men, solidarity between generations and protection of the rights of the child.

It shall promote economic, social and territorial cohesion, and solidarity among Member States.

It shall respect its rich cultural and linguistic diversity, and shall ensure that Europe's cultural heritage is safeguarded and enhanced.”


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Legislation and regulation

Legislation is an important instrument for the European Union promotes its aims, and the stream of Directives, Regulations and Decisions is impressive.

In principle, the objectives of the legislative acts are worthy, such as improved environmental standards, consumer protection, human safety, health and wellbeing.

While the legislation is often addressed to the member states, much of it targets businesses. Regulation leads to compliance costs for enterprises, and the combined cost of business regulation is too great to ignore at national and European level.

Much can be said for replacing different national rules by common norms for 27 EU member states (or 30 countries of the European Economic Area, EEA), but the economy in the internal market is not meant to be only “social”, but also “highly competitive”.

Given the importance of the European Union, both benefits and costs of business regulation need to be scrutinised carefully, because European level legislation affects about 500 million people.


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Better regulation

The European Commission pursues a Better Regulation strategy, with the following courses of action:



 Promoting the design and application of better regulation tools at the EU level, notably simplification, reduction of administrative burdens and impact assessment.
 Working more closely with Member States to ensure that better regulation principles are applied consistently throughout the EU by all regulators.
 Reinforcing the constructive dialogue between stakeholders and all regulators at the EU and national levels


The Commission’s own assessment of its agenda is the Communication Third strategic review of Better Regulation in the European Union (Brussels, 28.1.2009, COM(2009) 15 final).



The Communication presents efforts to cut “red tape” by scrapping obsolete legislation and codifying existing legal acts. The implications of proposed new laws are scrutinised through impact assessments, with new Impact assessment guidelines (since 15 January 2009; SEC(2009) 92).




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Open Europe

Open Europe’s publication Out of control? Measuring a decade of EU regulation was published in February 2009, which means that some of the questions it raises may have been addressed in the Communication (and accompanying documents) as well as the new Impact assessment guidelines.




Still, the publication raises valid points about regulatory costs at both national (UK) and European level. (It does not look at the benefits.)

Despite the efforts, the costs of regulation have continued to rise.

Administrative costs have been at the centre of attention, with the EU scrapping obsolete legislation and simplifying existing laws. The wider costs of compliance with regulation, fees and licenses as well as knock-on effects have been less well scrutinised.

Open Europe correctly underlines the importance of European level regulation, meaning that a purely domestic (UK) agenda is too limited in scope.


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New Commission

The newly elected European Parliament is starting its work and the legislative engine, the new Commission, will begin to set its priorities from the end of this year (1 November 2009).

Open Europe’s remarks and suggestions need to be taken seriously by the EU institutions, comparing them to the latest Communication and Impact assessment guidelines.

Although Open Europe dealt with national issues from a British perspective, all national governments could profit from many of the suggestions, both with regard to their contributions to Council work and to their domestic agendas on sensible regulation.

A level playing-field within the EU (EEA) is desirable, but far from enough. A highly competitive social market economy needs to be competitive in a global context as well.



Ralf Grahn

EU cutting red tape (fisheries)

It may not be the world record setting exercise in cutting red tape, but a small step to repeal outdated EU legislation.

If you want to see it with your own eyes, look at the Official Journal of the European Union (OJEU) 12.6.2009 L 149 to see 25 legislative acts become history at one fell swoop.



First, there is (page 1):

Council Regulation (EC) No 492/2009 of 25 May 2009 repealing 14 obsolete Regulations in the field of the Common Fisheries Policy.



Then there is (page 62):

Council Decision 2009/447/EC of 25 May 2009 repealing Directive 83/515/EEC and 11 obsolete Decisions in the field of the Common Fisheries Policy.


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If this continues, my fellow EU law bloggers and I may run out of things to write about in a few thousand years.

:-)


Ralf Grahn

How much law is EU law?

A while ago Nosemonkey sparked off a lengthy discussion by asking: What percentage of laws come from the EU? (2 June 2009)



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Over at the French think tank Notre Europe, Yves Bertoncini has published an assessment of the proportion of EU legislation: La législation nationale d’origine communautaire : briser le mythe des 80% (Les Brefs de Notre Europe No 13, mai 2009).




Bertoncini notes that the 80 per cent figure has caught on rapidly among both anti-Europeans and Euro-enthusiasts. It is difficult to reach a reliable figure, when assessing two different legal systems, but many have not been especially diligent in explaining that.

On 1 July 2008 the acquis communautaire comprised 28,031 legal acts (secondary acts, based on the treaties). Of these, 9,685 were Directives or Regulations.

Each year, the European Community produced between 2,181 (from 1978 to 2007) and 2,744 (from 1998 to 2007) Directives and Regulations.

In 2008 there were 2,249 Regulations and 247 Directives published in the Official Journal of the European Union (total 2,496).

The proportion of Community norms to French norms was a little less than 15 per cent.

The most heavily regulated areas were agriculture with about 42.6 per cent of all Regulations and Directives, the internal market including free movement with about 20 per cent and external relations (technical, economic and financial) with about 10 per cent.

The proportion of Community norms among legal norms applicable in France vary hugely between different sectors:

• Almost half in the agricultural sector
• About 20 per cent in the field of the economy and “foreign affairs”
• A little less than 5 per cent in “ecology”
• Less than 2 per cent in ten other sectors studied

Even given the methodological difficulties, Bertoncini concludes that the proportion of Community norms is closer to 20 than to 80 per cent.


Ralf Grahn

Directory of European Community legislation in preparation

A new service of the European Union’s legal portal Eur-Lex is its Directory of European Community legislation in preparation.

(Although the European Union has practically replaced the term European Community except in legal documents, it is perhaps in order to refer to the “first pillar” EC in this context.)




The Directory is a helpful tool for those, who want to find the pending legislative proposals in any of twenty policy areas. It is then possible to narrow the search to a sub-area. Here is how Eur-Lex describes the tool and the main structure of the Directory:


Directory of Community legislation in preparation
You can print out the chapter of the Directory of Community legislation in preparation that you are interested in from the PDF files for each chapter. The larger chapters have been split into several PDF files.


• 01 General, financial and institutional matters (number of acts: 59)
• 02 Customs Union and free movement of goods (number of acts: 40)
• 03 Agriculture (number of acts: 110)
• 04 Fisheries (number of acts: 40)
• 05 Freedom of movement for workers and social policy (number of acts: 39)
• 06 Right of establishment and freedom to provide services (number of acts: 20)
• 07 Transport policy (number of acts: 91)
• 08 Competition policy (number of acts: 5)
• 09 Taxation (number of acts: 42)
• 10 Economic and monetary policy and free movement of capital (number of acts: 27)
• 11 External relations (number of acts: 412)
• 12 Energy (number of acts: 30)
• 13 Industrial policy and internal market (number of acts: 118)
• 14 Regional policy and coordination of structural instruments (number of acts: 17)
• 15 Environment, consumers and health protection (number of acts: 138)
• 16 Science, information, education and culture (number of acts: 24)
• 17 Law relating to undertakings (number of acts: 22)
• 18 Common Foreign and Security Policy (number of acts: 11)
• 19 Area of freedom, security and justice (number of acts: 114)
• 20 People's Europe (number of acts: 2)



Ralf Grahn

European elections: Libertas’ principles ─ what do they mean?

We are some 31 days from the start of the European elections. A few moments ago, the policies page of Libertas.eu still told us that:

“The Libertas programme for a better Europe will be published on this site in the coming weeks.”



***

First principle

The problem is that a simplistic slogan is actually much harder to understand than a detailed explanation, because it raises a number of questions: What do they mean by that? How are they going to achieve it? What are the consequences?

If Libertas is serious about its politics, it should start detailing its policies and their consequences immediately.

In the meanwhile, without a proper Libertas programme, we will have to make do with what is on offer.

Libertas tells us that it is committed to five core principles. We take one at a time, and try to figure out what they mean.

We start with the first one.


***

Hold the EU accountable: Only elected politicians should make the law, says Libertas.

Is Libertas smashing through an open door?

Council?

The supreme law-making body of the European Union is the Council, where the ministers of the EU member states approve the directives and regulations.

Most people would accept the ministers as elected politicians, although their mandate is national.

Is this the problem for Libertas? Should national level politicians be disqualified from EU level decisions?

If Libertas wants to abolish the Council, it should say so. Likewise, if it wants to turn the Council into a second chamber (Senate) of the European Parliament, with directly elected Senators.

**

European Parliament?

The slogan can hardly be directed against the directly elected European Parliament, which participates in many areas of EU legislation. The EP’s participation would increase and develop under the Treaty of Lisbon, so representative democracy at EU level improves during the next parliamentary term, if the treaty enters into force.

Presumably Libertas means to improve representative democracy further by its legislative action within the EP, since it is standing in the elections to the European Parliament.

**

Commission?

The rallying cry can hardly target the Commission, either. The Commission drafts legislative proposals, which are adopted by the Council and often the European Parliament.

I find it hard to believe that Libertas would want to ban the strictly limited cases of delegated legislation by the Commission. Any national or European political system would choke, if the daily fluctuating import values of vegetables or the latest food additive or other details of implementation would have to go the full parliamentary route.

Is Libertas against the Commission’s power to propose legal acts? If that is the case, why not say so?

The rationale for the Commission’s right of proposal is its task to look after the general interest. If Libertas wants to weaken the general interest, which interests does it want to strengthen?


***


National parliaments

National parliaments already make the domestic laws, so the aim of Libertas’ slogan has to be something else. And why should Libertas speak about domestic law-making in a campaign for the European Parliament?

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Perplexing

As we see, the meaning and the implications of Libertas’ first core principle are far from clear. Honestly, I don’t know what to make of it.

If Libertas wants to maintain what we already have, why launch it as a battle cry, as the first principle of its campaign?

If they want something different, why not tell voters what it is and why it is important?

What do we vote for, if we cast our ballot for a Libertas candidate?

Libertas’ first principle leaves us hanging in suspense.



Ralf Grahn

Monitoring the EU Charter of Fundamental Rights

The first Convention prepared the Charter of Fungamental Rights of the European Union, and it was solemnly adopted as politically binding at the European Council in Nice, in December 2000.

Later it was incorporated into the Treaty establishing a Constitution for Europe, as Part II, and published in the Official Journal of the European Union (OJEU) 16.12.2004 C 310.

When the ratification processes of the Constitutional Treaty had petered out, the Treaty of Lisbon proposed to make the Charter legally binding, but the text was published separately, OJEU 14.12.2007 C 303/1.

Cf. Article 6 of the amended Treaty on European Union, OJEU 9.5.2008 C 115/19.

In other words, the EU Charter of Fundamental Rights enters into force if the Lisbon Treaty does, but one should bear in mind that the United Kingdom and Poland opted out of the Charter. (The UK has embarked upon a disconnected exercise to craft a national Bill of Rights.)


The differences between the versions are small, so if you have no need for a certain version, it is convenient to use the latest one.

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Monitoring

The Commission, which drafts legislative proposals, systematically check them against fundamental rights.

The Commission has now published an appraisal of its monitoring activities: The Report on the practical operation of the methodology for a systematic and rigorous monitoring of compliance with the Charter of Fundamental Rights (Brussels, 29.4.2009 COM(2009) 205 final).



The Commission stresses the growing importance of fundamental rights issues in the area of justice, freedom and security (page 3), and it names the so called asylum package as a case in point. The obligations are not only procedural, but substantive as well.

The Commission then goes on to discuss improvements to the monitoring process.

The Commission concludes by underlining the need to foster a fundamental rights culture and that the respect for fundamental rights must be a common goal of all the institutions involved in the legislative process.



Ralf Grahn

European Economic and Social Committee Opinions

The (European) Economic and Social Committee consists of representatives of organised civil society, and it must be consulted by the Council or by the Commission where the Treaty establishing the European Community (TEC) so provides.

The EESC (or ESC) may be consulted in other cases, as well as by the European Parliament. The EESC may issue opinions on its own initiative.

The relevant treaty provisions on this advisory body are Articles 257 to 267 TEC (in the Treaty of Lisbon Articles 300 to 304 of the Treaty on the Functioning of the European Union; TFEU).


Opinions

As with the Committee of the Regions, the opinion of the Economic and Social Committee is a mandatory requirement for Community legislation, when provided by the TEC, and the opinion is mentioned in the Preamble of the act.

For a student or researcher digging deeper into a Community act, the opinion is an essential reference.

The Official Journal of the European Union (OJEU) is the prime source for official materials on the European Union.

Far from the hectic pace of public information on the web and daily news reporting, the opinions of the European Economic and Social Committee are published in the OJEU with some delay.

The latest example is today’s OJEU 30.4.2009 C 100, where you find the opinions of the European Economic and Social Committee of the 448th plenary session held on 21 to 23 October 2008.






In other words, official publication takes place about six months after the session. Luckily, you can search the opinions by later sessions on the EESC web page Opinion Search.




Ralf Grahn

European Union: Human rights legislation & thematic files

Eur-Lex, the legal portal to legislation of the European Union (European Community), has published a new thematic file on human rights, one of the founding values.



The aim of a thematic file is to present core legislation, preparatory acts and other acts in a certain area in a convenient form for users.

The following thematic files offering EU legal materials are available:

http://eur-lex.europa.eu/en/dossier/index.htm

• Human rights (23/04/2009)
• Possession of fire arms (26/03/2009)
• European health strategy (13/03/2009)
• European Union policy in the field of research and innovation (27/01/2009)
• The visual characteristics of the euro coins (29/01/2009)
• Endangered species (09/12/2008)
• Rules on alcohol consumption (18/11/2008)
• Prevention and recycling of waste (25/09/2008)
• Multilingualism in the EU (15/09/2008)
• Air safety (10/09/2008)
• Climate change (27/08/2008)
• European Neighbourhood Policy (25/08/2008)
• Air passenger rights in the European Union (19/08/2008)
• External relations EU - Turkey (18/08/2008)
• Immigration - Asylum (08/08/2008)
• Customs Tariff (31/07/2008)
• Avian influenza (30/07/2008)
• Fight against terrorism (16/07/2008)
• Personal Data Protection (10/07/2008)
• Campaign against smoking (08/07/2008)
• Recognition of diplomas and qualifications in the European Union (26/06/2008)
• Protection of children (26/05/2008)
• Travelling and disabilities (15/05/2008)
• Employment (24/04/2008)
• Protection of privacy (09/04/2008)
• Money laundering (27/03/2008)
• Freedom of expression (04/03/2008)
• Non-discrimination and equal opportunities for all in the EU (01/02/2008)
• Consumer protection (15/11/2007)
• Humanitarian aid (04/10/2007)
• Reducing greenhouse gas emissions (19/07/2007)
• The fight against corruption (16/05/2007)
• Value added tax (VAT) (29/11/2006)
• Cosmetic products (25/10/2006)
• Food safety (28/09/2006)
• Football (06/06/2006)
• Lisbon Strategy (17/05/2006)
• Security of energy supply (07/02/2006)



Ralf Grahn

EU: Special legislative procedure (VI)

To vote or not to vote: that is the question: Whether ‘tis nobler in the mind to suffer the secret vagaries of Council dealings, Or to take arms against a sea of apathy.

In my mind, every vote for a constructive alternative in the European elections counts. The Treaty of Lisbon would widen the area where the directly elected European Parliament legislates on an equal basis with the Council of the European Union.

But the intergovernmental Council remains the principal decision-maker and legislator in many policy areas.

If an issue is important or sensitive enough for the member states, they keep the reins and leave the European Parliament on the sidelines.

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.

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Social policy

In EU terms social policy is mainly concerned with employment and working conditions. Action by the European Union is generally a complement to member states’ action. According to Article 153(1) and (2) of the Treaty on the Functioning of the European Union (TFEU), in the following fields the Council shall act unanimously, in accordance with a special legislative procedure, after consulting the European Parliament and the Economic and Social Committee and the Committee of the Regions (paragraph 1):




(c) social security and social protection of workers;

(d) protection of workers where their employment contract is terminated;

(f) representation and collective defence of the interests of workers and employers, including codetermination, subject to paragraph 5;

(g) conditions of employment for third-country nationals legally residing in Union territory;


However, the Council, acting unanimously on a proposal from the Commission, after consulting the European Parliament, may decide to render the ordinary legislative procedure applicable to paragraph 1(d), (f) and (g).

An enabling clause (passerelle) like this may be more important in principle than in practice, because a move to qualified majority voting and the ordinary legislative procedure requires unanimity, which was not in existence when the treaty was agreed. But it would make the procedure more flexible, since laborious treaty amendment and ratifications would be unnecessary.

Anyway, the enabling clause (passerelle) is blocked with regard to social security and social protection of workers; paragraph 1(c).


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Research and technological development

According to Article 182 TFEU, the multiannual framework programme for research and technological development, is adopted by the European Parliament and the Council, acting in accordance with the ordinary legislative procedure after consulting the Economic and Social Committee.


But the implementing specific programmes are adopted by the Council, acting in accordance with a special legislative procedure and after consulting the European Parliament and the Economic and Social Committee; paragraphs 3 and 4.


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Environment

There has been much talk about the European Union’s role in protecting the environment (cf. Article 191 TFEU).

The ordinary legislative procedure applies as a rule, according Article 192(1) TFEU, but the second paragraph lists the exceptions subject to unanimity and a special legislative procedure:


Article 192(2) TFEU

2. By way of derogation from the decision-making procedure provided for in paragraph 1 and without prejudice to Article 114, the Council acting unanimously in accordance with a special legislative procedure and after consulting the European Parliament, the Economic and Social Committee and the Committee of the Regions, shall adopt:

(a) provisions primarily of a fiscal nature;

(b) measures affecting:

— town and country planning,

— quantitative management of water resources or affecting, directly or indirectly, the availability of those resources,

— land use, with the exception of waste management;

(c) measures significantly affecting a Member State's choice between different energy sources and the general structure of its energy supply.


**

Here, too, in a second subparagraph there is a passerelle, opening up at least a theoretical possibility to shift to qualified majority voting at some future date:


The Council, acting unanimously on a proposal from the Commission and after consulting the
European Parliament, the Economic and Social Committee and the Committee of the Regions,
may make the ordinary legislative procedure applicable to the matters referred to in the
first subparagraph.


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Comment


In general ‘special legislative procedure’ can be read as a prognosis for either:

a) no EU legislation, or
b) legislation of low quality (based on the lowest common denominator).

In addition, although the European Parliament is normally consulted, its opinion lacks power. Thus, the process is less transparent and the outcome is less legitimate than legislation based on the ordinary legislative procedure (co-decision).



Ralf Grahn

EU: Special legislative procedure (III)

Libertas and other anti-intellectuals propagate a distorted picture of a mythical “Brussels”, where unelected officials swamp Europeans with harmful legislation. Instead of political programmes, they offer Jeremiads.

In the best case, these anti-EU crusaders are only deluded fools, although able to influence the ignorant. This should be enough for every informed voter to trust someone else, but I suspect that these anti-campaigners are not looking for supporters with critical faculties and basic knowledge.

In the worst case, these distortionists are perfectly aware of the reality, but consider it unfit for public consumption.

Let it be said: The Commission (where the unelected civil servants reside, just as their counterparts elsewhere are unelected) does not legislate in the main. It may be given limited powers to enact implementing legislation on the basis of existing legislation. The Commission proposes and administers. (In my view, the Commission should become a politically accountable government.)

The legislative powers belong to the Council, where the politically accountable ministers of the EU member states meet (not an ideal arrangement in my opinion, since their mandate is national, not an EU one). But unelected?

In some cases the Council of the European Union legislates on its own, or with marginal participation by the European Parliament, often unanimously, sometimes with high hurdles (qualified majority). This is the special legislative procedure of which we are going to see a few more examples.

(According to the Treaty of Lisbon, the directly elected European Parliament participates on an equal basis in many areas of legislation. This is usually called codecision, in the Lisbon Treaty officially the ordinary legislative procedure. Even in these cases large majorities are required in the Council.)


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A few more examples of the special legislative procedure, as presented in the consolidated version of the Lisbon Treaty, published in the Official Journal of the European Union (OJEU) 9.5.2008 C 115.



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External borders

Various measures concerning the external borders and short-stay residence permits are enacted by the ordinary legislative procedure (Article 77 TFEU). However, the right to move and reside freely within the territory of the member states is of interest to EU citizens. For facilitating measures, a special legislative procedure and unanimity are required:


Article 77(3) TFEU

3. If action by the Union should prove necessary to facilitate the exercise of the right referred to in Article 20(2)(a), and if the Treaties have not provided the necessary powers, the Council, acting in accordance with a special legislative procedure, may adopt provisions concerning passports, identity cards, residence permits or any other such document. The Council shall act unanimously after consulting the European Parliament.


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Family law

Judicial cooperation in civil matters having cross-border implications can advance by the ordinary legislative procedure (Article 81 TFEU). Cross-border family situations are important for millions of EU residents. The member states have however exempted family law matters by special safeguards:


Article 81(3) TFEU

3. Notwithstanding paragraph 2, measures concerning family law with cross-border implications shall be established by the Council, acting in accordance with a special legislative procedure. The Council shall act unanimously after consulting the European Parliament.

The Council, on a proposal from the Commission, may adopt a decision determining those aspects of family law with cross-border implications which may be the subject of acts adopted by the ordinary legislative procedure. The Council shall act unanimously after consulting the European Parliament.

The proposal referred to in the second subparagraph shall be notified to the national Parliaments. If a national Parliament makes known its opposition within six months of the date of such notification, the decision shall not be adopted. In the absence of opposition, the Council may adopt the decision.


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Cross-border crime

We like to move around freely, but we want effective police action to curb cross-border crime. The ordinary legislative procedure applies to certain serious cross-border crimes, according to Article 83 TFEU. But new areas require unanimity. Minimum rules follow the previous legislative procedure:


Article 83(2) TFEU

2. If the approximation of criminal laws and regulations of the Member States proves essential to ensure the effective implementation of a Union policy in an area which has been subject to harmonisation measures, directives may establish minimum rules with regard to the definition of criminal offences and sanctions in the area concerned. Such directives shall be adopted by the same ordinary or special legislative procedure as was followed for the adoption of the harmonisation measures in question, without prejudice to Article 76.


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European Public Prosecutor


The first subparagraph of Article 86(1) TFEU contains the basic principle on the establishment of the European Public Prosecutor’s Office, by a special legislative procedure, although nobody believes in a unanimous decision. (Thus, the choreography leading to enhanced cooperation is in place.)

Article 86(1) TFEU, first subparagraph


1. In order to combat crimes affecting the financial interests of the Union, the Council, by means
of regulations adopted in accordance with a special legislative procedure, may establish a European
Public Prosecutor's Office from Eurojust. The Council shall act unanimously after obtaining the
consent of the European Parliament.


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Operational police cooperation

Isn’t effective police cooperation in the interest of law-abiding citizens? Article 87(1) concerns the establishment of police cooperation involving all the member states' competent authorities, including police, customs and other specialised law enforcement services in relation to the prevention, detection and investigation of criminal offences; paragraph 2 lists measures falling under the ordinary legislative procedure.

Paragraph 3 reserves special treatment for operational police cooperation. If unanimity and a special legislative procedure fail, enhanced cooperation may follow between a group of member states.


Article 87(3) TFEU

3. The Council, acting in accordance with a special legislative procedure, may establish measures concerning operational cooperation between the authorities referred to in this Article. The Council shall act unanimously after consulting the European Parliament.

In case of the absence of unanimity in the Council, a group of at least nine Member States may request that the draft measures be referred to the European Council. In that case, the procedure in the Council shall be suspended. After discussion, and in case of a consensus, the European Council shall, within four months of this suspension, refer the draft back to the Council for adoption.

Within the same timeframe, in case of disagreement, and if at least nine Member States wish to establish enhanced cooperation on the basis of the draft measures concerned, they shall notify the European Parliament, the Council and the Commission accordingly. In such a case, the authorisation to proceed with enhanced cooperation referred to in Article 20(2) of the Treaty on European Union and Article 329(1) of this Treaty shall be deemed to be granted and the provisions on enhanced cooperation shall apply.

The specific procedure provided for in the second and third subparagraphs shall not apply to acts which constitute a development of the Schengen acquis.


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Police operations in another member state

The rules for operations police and other authorities in the territory of another member state are enacted according to a special legislative procedure, unanimously.


Article 89 TFEU
(ex Article 32 TEU)

The Council, acting in accordance with a special legislative procedure, shall lay down the conditions and limitations under which the competent authorities of the Member States referred to in Articles 82 and 87 may operate in the territory of another Member State in liaison and in agreement with the authorities of that State. The Council shall act unanimously after consulting the European Parliament.


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From the viewpoint of an EU citizen, I would hope for more problem solving action and less fretting about sovereignty.


Ralf Grahn

EU: Special legislative procedure (II)

The principle of conferred (attributed) powers. The principles of subsidiarity and proportionality. The super majorities required by qualified majority voting (QMV); in part deferred until 2017. Enough limitations?

Not enough, says an EU member state or two; this is sensitive business. So the Treaty of Lisbon, itself the denominator of the least willing, hedges in legislation behind the walls of unanimity and the special legislative procedure.

Just as a reminder: There would have been no working internal market, if the member states had not abandoned the unanimity rule in important areas.

We continue to look at provisions where the Treaty of Lisbon retains the special legislative procedure, which leaves the directly elected European Parliament on the margins and normally offers little prospect of progress (unanimity).

In these cases the intergovernmental Council of the European Union is the decisive institution.


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Diplomatic and consular protection

The principle of diplomatic or consular protection for unrepresented EU citizens is stated in Article 23 TFEU. The member states negotiate internationally and adopt the necessary provisions, but coordination and cooperation measures may be adopted within the EU framework, according to a special legislative procedure:


Article 23 TFEU
(ex Article 20 TEC)

Every citizen of the Union shall, in the territory of a third country in which the Member State of which he is a national is not represented, be entitled to protection by the diplomatic or consular authorities of any Member State, on the same conditions as the nationals of that State. Member States shall adopt the necessary provisions and start the international negotiations required to secure this protection.

The Council, acting in accordance with a special legislative procedure and after consulting the European Parliament, may adopt directives establishing the coordination and cooperation measures necessary to facilitate such protection.


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EU citizenship rights

The second paragraph of Article 25 TFEU offers a slim chance of strengthening EU citizenship rights, by unanimous decision and approval at national level:



Article 25 TFEU, second paragraph

On this basis, and without prejudice to the other provisions of the Treaties, the Council, acting unanimously in accordance with a special legislative procedure and after obtaining the consent of the European Parliament, may adopt provisions to strengthen or to add to the rights listed in Article 20(2). These provisions shall enter into force after their approval by the Member States in accordance with their respective constitutional requirements.


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Restricting capital movements

Here is a rare example of a provision, where the special legislative procedure does not limit chances for progress, but is designed to make it difficult to back-track from existing measures which have liberalised the free movement of capital with regard to third countries:


Article 64(3) TFEU


3. Notwithstanding paragraph 2, only the Council, acting in accordance with a special legislative procedure, may unanimously, and after consulting the European Parliament, adopt measures which constitute a step backwards in Union law as regards the liberalisation of the movement of capital to or from third countries.


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Why not see the European Union more as a means to reach pragmatic solutions for its citizens and firms?


Ralf Grahn

EU: Special legislative procedure (I)

We have seen numerous examples of the European Council and the Council subject to the unanimity rule, within the common foreign and security policy (CFSP), the common security and defence policy (CSDP), institutional reform and other issues.

In the area of legislation, far from all issues are decided by the ordinary legislative procedure (codecision) even if the Treaty of Lisbon enters into force. Unanimous decisions are required in many instances.

According to the Lisbon Treaty, the intergovernmental Council of the European Union acts according to a special legislative procedure in cases where the directly elected European is less than an equal co-legislator.


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Consolidated Lisbon Treaty

Here are examples of a special legislative procedure according to the Treaty on the Functioning of the European Union (TFEU). Our source is the consolidated version of the Lisbon Treaty published in the Official Journal of the European Union (OJEU) 9.5.2008 C 115.


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Combating discrimination

Unanimity and a special legislative procedure for Council legislation:


Article 19(1) TFEU
(ex Article 13 TEC)

1. Without prejudice to the other provisions of the Treaties and within the limits of the powers conferred by them upon the Union, the Council, acting unanimously in accordance with a special legislative procedure and after obtaining the consent of the European Parliament, may take appropriate action to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation.


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Free movement of persons

Article 21 TFEU concerns the free movement of persons and necessary legislation. The third paragraph requires unanimity and lays down a special legislative procedure, when the Council adopts measures concerning social security or social protection:


Article 21(3) TFEU

3. For the same purposes as those referred to in paragraph 1 and if the Treaties have not provided the necessary powers, the Council, acting in accordance with a special legislative procedure, may adopt measures concerning social security or social protection. The Council shall act unanimously after consulting the European Parliament.


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Municipal elections

Unanimity and a special legislative procedure apply to the detailed arrangements for EU citizens voting or standing as candidates in municipal elections in their state of residence, where they are not nationals:


Article 22(1) TFEU
(ex Article 19 TEC)

1. Every citizen of the Union residing in a Member State of which he is not a national shall have the right to vote and to stand as a candidate at municipal elections in the Member State in which he resides, under the same conditions as nationals of that State. This right shall be exercised subject to detailed arrangements adopted by the Council, acting unanimously in accordance with a special legislative procedure and after consulting the European Parliament; these arrangements may provide for derogations where warranted by problems specific to a Member State.


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European elections

Corresponding provisions apply to the European elections:


Article 22(2) TFEU

2. Without prejudice to Article 223(1) and to the provisions adopted for its implementation, every citizen of the Union residing in a Member State of which he is not a national shall have the right to vote and to stand as a candidate in elections to the European Parliament in the Member State in which he resides, under the same conditions as nationals of that State. This right shall be exercised subject to detailed arrangements adopted by the Council, acting unanimously in accordance with a special legislative procedure and after consulting the European Parliament; these arrangements may provide for derogations where warranted by problems specific to a Member State.


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We have split the examples of the Council acting according to a special legislative procedure into a number of posts.



Ralf Grahn

EU Services Directive: Sweden

The Swedish government has published a draft Bill on the Services Directive 2006/123/EC and sent it to the Council on Legislation for a legal opinion. This is normally the last stop before presenting a bill to the Parliament (Riksdag).

In the Swedish tradition, Lagrådsremiss: Genomförande av tjänstedirektivet (8 april 2009) comes with ample reasons, which may be of interest to drafters and practitioners in other EU member states. It comprises 247 pages.




The Services Directive, officially Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market, was published in the Official Journal of the European Union (OJEU) 27.12.2006 L 376/36. (The link is to the English version.)


The transposition date for the Services Directive is 28 December 2009 (Article 44).


Ralf Grahn