The European Parliament has approved the text of a new E-Money Directive, aimed at providing the internal market with a legal framework, which removes obstacles to market entry. The Directive is meant to be transposed by the EU member states into national law by 2011.
***
European Parliament
The European Parliament has approved the text of a new E-Money Directive. At this stage, the adopted text can be found in the compilation of resolutions adopted on Friday 24 April 2009 (from page 142).
Here are the exact references:
P6_TA-PROV(2009)0322
The business of electronic money institutions ***I
European Parliament legislative resolution of 24 April 2009 on the proposal for a directive of the European Parliament and of the Council on the taking up, pursuit and prudential supervision of the business of electronic money institutions, amending Directives 2005/60/EC and 2006/48/EC and repealing Directive 2000/46/EC (COM(2008)0627 – C6-0350/2008 – 2008/0190(COD))
(Codecision procedure: first reading)
***
Scope
Article 1 of the E-Money Directive lays down the scope:
Article 1
Subject matter and scope
1. This Directive lays down the rules for the ▌pursuit ▌of the ▌activity of issuing electronic money in accordance with which Member States shall distinguish the following five categories of electronic money issuers:
(a) credit institutions, as defined in point 1 of Article 4 of Directive 2006/48/EC, including, in accordance with national law, branches within the meaning of point 3 of Article 4 of that Directive located in the Community in accordance with Article 38 of the same Directive of credit institutions having their head offices outside the Community;
(b) electronic money institutions, as defined in point 1 of Article 2 including, in accordance with national law and Article 8, branches located in the Community of the electronic money institutions having their head offices outside the Community;
(c) post office giro institutions which are entitled under national law to issue electronic money;
(d) the European Central Bank and national central banks when not acting in their capacity as monetary authority or other public authorities;
(e) Member States or their regional or local authorities when acting in their capacity as public authorities.
2. Title II of this Directive also lays down the rules for the taking up, the pursuit and the prudential supervision of the business of electronic money institutions.
3. Member States may waive the application of all or part of the provisions of Title II of this Directive to the institutions referred to in Article 2 of Directive 2006/48/EC, with the exception of those referred to in the first and second indent of that Article.
4. This Directive does not apply to monetary value stored on instruments exempted as specified in Article 3(k) of Directive 2007/64/EC.
5. This Directive does not apply to monetary value that is used to make payment transactions exempted as specified in Article 3(l) of Directive 2007/64/EC.
***
Commission response
The Commission issued an explanatory press release, which welcomed the EP resolution:
European Commission welcomes the European Parliament’s adoption of two proposals in the area of payments (on e-money and cross-border payments) (24 April 2009; IP/09/637)
***
Final adoption
The new Directive is now heading for final adoption by the Council and subsequent publication in the Official Journal of the European Union (OJEU).
Ralf Grahn
Showing posts with label payments. Show all posts
Showing posts with label payments. Show all posts
Saturday, 25 April 2009
EU: New Regulation on cross-border payments
The Single Euro Payments Area (SEPA) takes a further step towards completion. The Payment Services Directive (PSD) 2007/64/EC, which will be implemented from 1 November 2009, is going to be complemented by a new Regulation on cross-border payments, which extends the principle of equal charges for national and cross-border payments to direct debits.
***
European Parliament
The European Parliament has approved the text of a new Regulation on cross-border payments. At this stage, the adopted text can be found in the compilation of resolutions adopted on Friday 24 April 2009 (from page 129).
Here are the exact references:
P6_TA-PROV(2009)0321
Cross-border payments in the Community ***I
European Parliament legislative resolution of 24 April 2009 on the proposal for a regulation of the European Parliament and of the Council on cross-border payments in the Community (COM(2008)0640 – C6-0352/2008 – 2008/0194(COD))
(Codecision procedure: first reading)
***
Scope
Article 1 of the new Regulation presents its scope:
Article 1
Subject matter and scope
1. This Regulation lays down rules on cross-border payments within the Community, ensuring that charges for those payments are the same as those for payments in the same currency within a Member State.
2. This Regulation applies to cross-border payments, in accordance with the provisions of Directive 2007/64/EC, which are denominated in euro or in the national currencies of the Member States which have notified their intention to extend the application of the Regulation to their national currency, in accordance with Article 14.
3. This Regulation does not apply to payments made by payment service providers for their own account or on behalf of other payment service providers.
4. Articles 6, 7 and 8 lay down rules regarding direct debit transactions denominated in euro between the payment service providers of the payee and of the payer.
***
Commission response
The Commission issued an explanatory press release, which welcomed the EP resolution:
European Commission welcomes the European Parliament’s adoption of two proposals in the area of payments (on e-money and cross-border payments) (24 April 2009; IP/09/637)
***
Final adoption
The new Regulation is now heading for final adoption by the Council and subsequent publication in the Official Journal of the European Union (OJEU).
Ralf Grahn
***
European Parliament
The European Parliament has approved the text of a new Regulation on cross-border payments. At this stage, the adopted text can be found in the compilation of resolutions adopted on Friday 24 April 2009 (from page 129).
Here are the exact references:
P6_TA-PROV(2009)0321
Cross-border payments in the Community ***I
European Parliament legislative resolution of 24 April 2009 on the proposal for a regulation of the European Parliament and of the Council on cross-border payments in the Community (COM(2008)0640 – C6-0352/2008 – 2008/0194(COD))
(Codecision procedure: first reading)
***
Scope
Article 1 of the new Regulation presents its scope:
Article 1
Subject matter and scope
1. This Regulation lays down rules on cross-border payments within the Community, ensuring that charges for those payments are the same as those for payments in the same currency within a Member State.
2. This Regulation applies to cross-border payments, in accordance with the provisions of Directive 2007/64/EC, which are denominated in euro or in the national currencies of the Member States which have notified their intention to extend the application of the Regulation to their national currency, in accordance with Article 14.
3. This Regulation does not apply to payments made by payment service providers for their own account or on behalf of other payment service providers.
4. Articles 6, 7 and 8 lay down rules regarding direct debit transactions denominated in euro between the payment service providers of the payee and of the payer.
***
Commission response
The Commission issued an explanatory press release, which welcomed the EP resolution:
European Commission welcomes the European Parliament’s adoption of two proposals in the area of payments (on e-money and cross-border payments) (24 April 2009; IP/09/637)
***
Final adoption
The new Regulation is now heading for final adoption by the Council and subsequent publication in the Official Journal of the European Union (OJEU).
Ralf Grahn
Sunday, 20 April 2008
EU TFEU: Exceptions to free movement of capital
Article 58 of the Treaty establishing the European Community (TEC) provides for exceptions to the free movement of capital and payments, and these are taken over by the Treaty of Lisbon in Article 65 of the Treaty on the Functioning of the European Union (TFEU). The Lisbon Treaty provision adds a new possibility to take restrictive measures as regards third countries.
***
Article 65 of the Treaty on the Functioning of the European Union (TFEU) is presented as it stands after the intergovernmental conference (IGC 2007) in the Treaty of Lisbon (ToL) and provisionally consolidated by the Council of the European Union (document 6655/08; page 94-95), with the location of the provision added from the table of equivalences (page 460 to 462):
Part Three ‘Policies and internal actions of the Union’
Title IV TFEU (ex Title III) ‘Free movement of persons, services and capital’
Chapter 4 ‘Capital and payments’
Article 65 TFEU
(ex Article 58 TEC)
1. The provisions of Article 63 shall be without prejudice to the right of Member States:
(a) to apply the relevant provisions of their tax law which distinguish between taxpayers who are not in the same situation with regard to their place of residence or with regard to the place where their capital is invested;
(b) to take all requisite measures to prevent infringements of national law and regulations, in particular in the field of taxation and the prudential supervision of financial institutions, or to lay down procedures for the declaration of capital movements for purposes of administrative or statistical information, or to take measures which are justified on grounds of public policy or public security.
2. The provisions of this Chapter shall be without prejudice to the applicability of restrictions on the right of establishment which are compatible with the Treaties.
3. The measures and procedures referred to in paragraphs 1 and 2 shall not constitute a means of arbitrary discrimination or a disguised restriction on the free movement of capital and payments as defined in Article 63.
4. In the absence of measures pursuant to Article 64(3), the Commission or, in the absence of a Commission decision within three months from the request of the Member State concerned, the Council, may adopt a decision stating that restrictive tax measures adopted by a Member State concerning one or more third countries are to be considered compatible with the Treaties in so far as they are justified by one of the objectives of the Union and compatible with the proper functioning of the internal market. The Council shall act unanimously on application by a Member State.
***
The intergovernmental conference (IGC 2007) mentions Article 58 of the Treaty establishing the European Community (TEC) in Article 2, point 61, of the Treaty of Lisbon (ToL). See OJ 17.12.2007 C 306/56:
61) In Article 58, the following new paragraph 4 shall be added:
‘4. In the absence of measures pursuant to Article 57(3), the Commission or, in the absence of a Commission decision within three months from the request of the Member State concerned, the Council, may adopt a decision stating that restrictive tax measures adopted by a Member State concerning one or more third countries are to be considered compatible with the Treaties insofar as they are justified by one of the objectives of the Union and compatible with the proper functioning of the internal market. The Council shall act unanimously on application by a Member State.’.
***
The latest consolidated version of the current Article 58 TEC looks like this (OJ 29.12.2006 C 321 E/64):
Article 58 TEC
1. The provisions of Article 56 shall be without prejudice to the right of Member States:
(a) to apply the relevant provisions of their tax law which distinguish between taxpayers who are not in the same situation with regard to their place of residence or with regard to the place where their capital is invested;
(b) to take all requisite measures to prevent infringements of national law and regulations, in particular in the field of taxation and the prudential supervision of financial institutions, or to lay down procedures for the declaration of capital movements for purposes of administrative or statistical information, or to take measures which are justified on grounds of public policy or public security.
2. The provisions of this Chapter shall be without prejudice to the applicability of restrictions on the right of establishment which are compatible with this Treaty.
3. The measures and procedures referred to in paragraphs 1 and 2 shall not constitute a means of arbitrary discrimination or a disguised restriction on the free movement of capital and payments as defined in Article 56.
***
The European Convention made only cosmetic amendments to Article 58 TEC in Article III-47 of the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/35).
***
Article III-158 of the Treaty establishing a Constitution for Europe replaced the word ‘steps’ of the draft Constitution with ‘measures’ as in the current Article 58 TEC, so only the added words in the phrase ‘provisions laid down by law or regulation’ in subparagraph 1(b) remained of the cosmetic changes proposed by the draft.
But the IGC 2004 made one substantial change by adding a fourth paragraph to Article III-158, reproduced below (OJ 16.12.2004 C 310/67):
Article III-158 Constitution
1. Article III-156 shall be without prejudice to the right of Member States:
(a) to apply the relevant provisions of their tax law which distinguish between taxpayers who are not in the same situation with regard to their place of residence or with regard to the place where their capital is invested;
(b) to take all requisite measures to prevent infringements of national provisions laid down by law or regulation, in particular in the field of taxation and the prudential supervision of financial institutions, or to lay down procedures for the declaration of capital movements for purposes of administrative or statistical information, or to take measures which are justified on grounds of public policy or public security.
2. This Section shall be without prejudice to the applicability of restrictions on the right of establishment which are compatible with the Constitution.
3. The measures and procedures referred to in paragraphs 1 and 2 shall not constitute a means of arbitrary discrimination or a disguised restriction on the free movement of capital and payments as defined in Article III-156.
4. In the absence of a European law or framework law provided for in Article III-157(3), the Commission or, in the absence of a European decision of the Commission within three months from the request of the Member State concerned, the Council, may adopt a European decision stating that restrictive tax measures adopted by a Member State concerning one or more third countries are to be considered compatible with the Constitution insofar as they are justified by one of the objectives of the Union and compatible with the proper functioning of the internal market. The Council shall act unanimously on application by a Member State.
***
We see that the fourth paragraph added by the Treaty of Lisbon to what becomes Article 65 TFEU is in essence the corresponding Article III-158(4) of the Constitutional Treaty. The changes in wording relate to general terminological differences between the two treaties.
This ‘parentage’ is mentioned in the German and Finnish ratification bills and in the consultation paper of the Swedish government.
Thus, the amendment fell under the general provision of the IGC 2007 Mandate regarding amendments to the EC Treaty (Council document 11218/07, page 7, point 18): The innovations agreed in the 2004 IGC will be inserted into the Treaty by way of specific modifications in the usual manner.
Ralf Grahn
***
Article 65 of the Treaty on the Functioning of the European Union (TFEU) is presented as it stands after the intergovernmental conference (IGC 2007) in the Treaty of Lisbon (ToL) and provisionally consolidated by the Council of the European Union (document 6655/08; page 94-95), with the location of the provision added from the table of equivalences (page 460 to 462):
Part Three ‘Policies and internal actions of the Union’
Title IV TFEU (ex Title III) ‘Free movement of persons, services and capital’
Chapter 4 ‘Capital and payments’
Article 65 TFEU
(ex Article 58 TEC)
1. The provisions of Article 63 shall be without prejudice to the right of Member States:
(a) to apply the relevant provisions of their tax law which distinguish between taxpayers who are not in the same situation with regard to their place of residence or with regard to the place where their capital is invested;
(b) to take all requisite measures to prevent infringements of national law and regulations, in particular in the field of taxation and the prudential supervision of financial institutions, or to lay down procedures for the declaration of capital movements for purposes of administrative or statistical information, or to take measures which are justified on grounds of public policy or public security.
2. The provisions of this Chapter shall be without prejudice to the applicability of restrictions on the right of establishment which are compatible with the Treaties.
3. The measures and procedures referred to in paragraphs 1 and 2 shall not constitute a means of arbitrary discrimination or a disguised restriction on the free movement of capital and payments as defined in Article 63.
4. In the absence of measures pursuant to Article 64(3), the Commission or, in the absence of a Commission decision within three months from the request of the Member State concerned, the Council, may adopt a decision stating that restrictive tax measures adopted by a Member State concerning one or more third countries are to be considered compatible with the Treaties in so far as they are justified by one of the objectives of the Union and compatible with the proper functioning of the internal market. The Council shall act unanimously on application by a Member State.
***
The intergovernmental conference (IGC 2007) mentions Article 58 of the Treaty establishing the European Community (TEC) in Article 2, point 61, of the Treaty of Lisbon (ToL). See OJ 17.12.2007 C 306/56:
61) In Article 58, the following new paragraph 4 shall be added:
‘4. In the absence of measures pursuant to Article 57(3), the Commission or, in the absence of a Commission decision within three months from the request of the Member State concerned, the Council, may adopt a decision stating that restrictive tax measures adopted by a Member State concerning one or more third countries are to be considered compatible with the Treaties insofar as they are justified by one of the objectives of the Union and compatible with the proper functioning of the internal market. The Council shall act unanimously on application by a Member State.’.
***
The latest consolidated version of the current Article 58 TEC looks like this (OJ 29.12.2006 C 321 E/64):
Article 58 TEC
1. The provisions of Article 56 shall be without prejudice to the right of Member States:
(a) to apply the relevant provisions of their tax law which distinguish between taxpayers who are not in the same situation with regard to their place of residence or with regard to the place where their capital is invested;
(b) to take all requisite measures to prevent infringements of national law and regulations, in particular in the field of taxation and the prudential supervision of financial institutions, or to lay down procedures for the declaration of capital movements for purposes of administrative or statistical information, or to take measures which are justified on grounds of public policy or public security.
2. The provisions of this Chapter shall be without prejudice to the applicability of restrictions on the right of establishment which are compatible with this Treaty.
3. The measures and procedures referred to in paragraphs 1 and 2 shall not constitute a means of arbitrary discrimination or a disguised restriction on the free movement of capital and payments as defined in Article 56.
***
The European Convention made only cosmetic amendments to Article 58 TEC in Article III-47 of the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/35).
***
Article III-158 of the Treaty establishing a Constitution for Europe replaced the word ‘steps’ of the draft Constitution with ‘measures’ as in the current Article 58 TEC, so only the added words in the phrase ‘provisions laid down by law or regulation’ in subparagraph 1(b) remained of the cosmetic changes proposed by the draft.
But the IGC 2004 made one substantial change by adding a fourth paragraph to Article III-158, reproduced below (OJ 16.12.2004 C 310/67):
Article III-158 Constitution
1. Article III-156 shall be without prejudice to the right of Member States:
(a) to apply the relevant provisions of their tax law which distinguish between taxpayers who are not in the same situation with regard to their place of residence or with regard to the place where their capital is invested;
(b) to take all requisite measures to prevent infringements of national provisions laid down by law or regulation, in particular in the field of taxation and the prudential supervision of financial institutions, or to lay down procedures for the declaration of capital movements for purposes of administrative or statistical information, or to take measures which are justified on grounds of public policy or public security.
2. This Section shall be without prejudice to the applicability of restrictions on the right of establishment which are compatible with the Constitution.
3. The measures and procedures referred to in paragraphs 1 and 2 shall not constitute a means of arbitrary discrimination or a disguised restriction on the free movement of capital and payments as defined in Article III-156.
4. In the absence of a European law or framework law provided for in Article III-157(3), the Commission or, in the absence of a European decision of the Commission within three months from the request of the Member State concerned, the Council, may adopt a European decision stating that restrictive tax measures adopted by a Member State concerning one or more third countries are to be considered compatible with the Constitution insofar as they are justified by one of the objectives of the Union and compatible with the proper functioning of the internal market. The Council shall act unanimously on application by a Member State.
***
We see that the fourth paragraph added by the Treaty of Lisbon to what becomes Article 65 TFEU is in essence the corresponding Article III-158(4) of the Constitutional Treaty. The changes in wording relate to general terminological differences between the two treaties.
This ‘parentage’ is mentioned in the German and Finnish ratification bills and in the consultation paper of the Swedish government.
Thus, the amendment fell under the general provision of the IGC 2007 Mandate regarding amendments to the EC Treaty (Council document 11218/07, page 7, point 18): The innovations agreed in the 2004 IGC will be inserted into the Treaty by way of specific modifications in the usual manner.
Ralf Grahn
Friday, 18 April 2008
EU TFEU: Free movement of capital
The current Treaty establishing the European Community as well as the Treaty on the Functioning of the European Union (following from the Treaty of Lisbon) prohibit restrictions on the movement of capital and on payments between member states as well as between member states and third countries.
***
We move to a Chapter 4 ‘Capital and payments’. Article 63 of the Treaty on the Functioning of the European Union (TFEU), is presented as amended by the intergovernmental conference (IGC 2007) in the Treaty of Lisbon (ToL) and provisionally consolidated by the Council of the European Union (document 6655/08; page 93), with the location of the provision added from the table of equivalences (page 460 to 462):
Part Three ‘Policies and internal actions of the Union’
Title IV TFEU ‘Free movement of persons, services and capital’
Chapter 4 ‘Capital and payments’
Article 63 TFEU
(ex Article 56 TEC)
1. Within the framework of the provisions set out in this Chapter, all restrictions on the movement of capital between Member States and between Member States and third countries shall be prohibited.
2. Within the framework of the provisions set out in this Chapter, all restrictions on payments between Member States and between Member States and third countries shall be prohibited.
***
The IGC 2007 made no specific amendment to Article 56 TEC. Cf. OJ 17.12.2007 C 306/55. The provision is only renumbered.
***
The current key provision on capital and payments, Article 56 TEC, is found in the latest consolidated version of the treaties, OJ 29.12.2006 C 321 E/63.
***
The European Convention preferred a shorter version of the opening provision of Section 4 ‘Capital and payments’ in the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/34):
SECTION 4
Capital and payments
Article III-45 Draft Constitution
Within the framework of this Section, restrictions both on the movement of capital and on payments between Member States and between Member States and third countries shall be prohibited.
***
The IGC 2004 adopted the wording of the draft in Article III-156 of the Treaty establishing a Constitution for Europe (OJ 16.12.2004 C 310/66).
***
We see that no substantial change has been adopted during the various stages of the treaty reform process after the Treaty of Nice, but the wording proposed by the European Convention and agreed by the IGC 2004 would arguably have been more elegant.
In this, as in many other cases, the IGC 2007 decided to save ink by preserving the current wording when the reasons for change would have been purely aesthetic.
***
Some suggestions for further reading, first two standard books:
Josephine Steiner, Lorna Woods and Christian Twigg-Flesner: EU Law (Oxford University Press, Ninth Edition, 2006), Chapter 16 Free movement of payments and capital (pages 344-354)
Paul Craig and Gráinne de Búrca: EU Law, Text, Cases, and Materials (Oxford University Press, Fourth Edition, 2007), page 723 to 727 in Chapter 20 Free movement of capital and economic and monetary union
Then a few web resources:
The Commission’s introductory web page ‘Free movement of capital’ offers a quick overview and additional links (last updated 30 May 2007):
http://ec.europa.eu/internal_market/capital/index_en.htm
The web page ‘Treaty provisions’ presents the basic rules and further links (last update 27 August 2007):
http://ec.europa.eu/internal_market/capital/framework/treaty_en.htm
The European Parliament fact sheet 3.2.4 ‘Free movement of capital’ is an alternative presentation of the basics (last updated 25 October 2006):
http://www.europarl.europa.eu/facts/3_2_4_en.htm
The Commission’s Scadplus pages offer summaries or links to introductory pages on European Community legislation. In this case the starting point could be the web page ‘Single market for capital’ with more than thirty links on different aspects (no date):
http://europa.eu/scadplus/leg/en/s70001.htm
EU Law Blog has three posts on recent ECJ cases archived under ‘Capital: Free movement’:
http://eulaw.typepad.com/eulawblog/free_movement_of_capital/index.html
An example of the Court of Justice’s reasoning about the relationship between the provision of services and free movement of capital is Case C-452/04:
http://curia.europa.eu/jurisp/cgi-bin/gettext.pl?where=&lang=en&num=79938996C19040452&doc=T&ouvert=T&seance=ARRET
Ralf Grahn
***
We move to a Chapter 4 ‘Capital and payments’. Article 63 of the Treaty on the Functioning of the European Union (TFEU), is presented as amended by the intergovernmental conference (IGC 2007) in the Treaty of Lisbon (ToL) and provisionally consolidated by the Council of the European Union (document 6655/08; page 93), with the location of the provision added from the table of equivalences (page 460 to 462):
Part Three ‘Policies and internal actions of the Union’
Title IV TFEU ‘Free movement of persons, services and capital’
Chapter 4 ‘Capital and payments’
Article 63 TFEU
(ex Article 56 TEC)
1. Within the framework of the provisions set out in this Chapter, all restrictions on the movement of capital between Member States and between Member States and third countries shall be prohibited.
2. Within the framework of the provisions set out in this Chapter, all restrictions on payments between Member States and between Member States and third countries shall be prohibited.
***
The IGC 2007 made no specific amendment to Article 56 TEC. Cf. OJ 17.12.2007 C 306/55. The provision is only renumbered.
***
The current key provision on capital and payments, Article 56 TEC, is found in the latest consolidated version of the treaties, OJ 29.12.2006 C 321 E/63.
***
The European Convention preferred a shorter version of the opening provision of Section 4 ‘Capital and payments’ in the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/34):
SECTION 4
Capital and payments
Article III-45 Draft Constitution
Within the framework of this Section, restrictions both on the movement of capital and on payments between Member States and between Member States and third countries shall be prohibited.
***
The IGC 2004 adopted the wording of the draft in Article III-156 of the Treaty establishing a Constitution for Europe (OJ 16.12.2004 C 310/66).
***
We see that no substantial change has been adopted during the various stages of the treaty reform process after the Treaty of Nice, but the wording proposed by the European Convention and agreed by the IGC 2004 would arguably have been more elegant.
In this, as in many other cases, the IGC 2007 decided to save ink by preserving the current wording when the reasons for change would have been purely aesthetic.
***
Some suggestions for further reading, first two standard books:
Josephine Steiner, Lorna Woods and Christian Twigg-Flesner: EU Law (Oxford University Press, Ninth Edition, 2006), Chapter 16 Free movement of payments and capital (pages 344-354)
Paul Craig and Gráinne de Búrca: EU Law, Text, Cases, and Materials (Oxford University Press, Fourth Edition, 2007), page 723 to 727 in Chapter 20 Free movement of capital and economic and monetary union
Then a few web resources:
The Commission’s introductory web page ‘Free movement of capital’ offers a quick overview and additional links (last updated 30 May 2007):
http://ec.europa.eu/internal_market/capital/index_en.htm
The web page ‘Treaty provisions’ presents the basic rules and further links (last update 27 August 2007):
http://ec.europa.eu/internal_market/capital/framework/treaty_en.htm
The European Parliament fact sheet 3.2.4 ‘Free movement of capital’ is an alternative presentation of the basics (last updated 25 October 2006):
http://www.europarl.europa.eu/facts/3_2_4_en.htm
The Commission’s Scadplus pages offer summaries or links to introductory pages on European Community legislation. In this case the starting point could be the web page ‘Single market for capital’ with more than thirty links on different aspects (no date):
http://europa.eu/scadplus/leg/en/s70001.htm
EU Law Blog has three posts on recent ECJ cases archived under ‘Capital: Free movement’:
http://eulaw.typepad.com/eulawblog/free_movement_of_capital/index.html
An example of the Court of Justice’s reasoning about the relationship between the provision of services and free movement of capital is Case C-452/04:
http://curia.europa.eu/jurisp/cgi-bin/gettext.pl?where=&lang=en&num=79938996C19040452&doc=T&ouvert=T&seance=ARRET
Ralf Grahn
Sunday, 13 April 2008
EU TFEU: Transport, banking and insurance services
Important sectors of economic activity, such as transport, banking and insurance (financial services) are treated distinctly in the context of free movement of services within the European Community (European Union).
We look at the current Article 51 of the Treaty establishing the European Community and its position in the EU Treaty of Lisbon.
Further reading is suggested for readers interested in EU law and policies concerning the transport and financial services sectors.
***
The Treaty of Lisbon (ToL) makes no specific amendment to Article 51 of the Treaty establishing the European Community (TEC). Cf. point 57 and 58 in Official Journal (OJ) 17.12.2007 C 306/55.
***
The current Article 51 TEC is found in the latest consolidated version of the treaties, TEU and TEC, in OJ 29.12.2006 C 321 E/62:
Article 51 TEC
1. Freedom to provide services in the field of transport shall be governed by the provisions of the title relating to transport.
2. The liberalisation of banking and insurance services connected with movements of capital shall be effected in step with the liberalisation of movement of capital.
***
According to the Lisbon Treaty, the provision should look like this in the Treaty on the Functioning of the European Union (TFEU) when we add the location of the Article and the future renumbering from the Tables of equivalences (OJ 17.12.2007 C 306/207-208) and note that no horizontal amendments seem to apply (Cf. OJ 17.12.2007 C 306/41-44):
Part Three ‘Policies and internal actions of the Union’
Title III (renumbered Title IV) ‘Free movement of persons, services and capital’
Chapter 3 ‘Services’
Article 51 TFEU (ToL), renumbered Article 58 TFEU
1. Freedom to provide services in the field of transport shall be governed by the provisions of the title relating to transport.
2. The liberalisation of banking and insurance services connected with movements of capital shall be effected in step with the liberalisation of movement of capital.
***
The first paragraph of Article III-31 of the draft Treaty establishing a Constitution for Europe referred to the ‘Section’ instead of the ‘title’ relating to transport, but proposed no other change (OJ 18.7.2003 C 169/33).
***
Only the referral to ‘Section 7 of Chapter III’ relating to transport differed from the other versions in Article III-146 of the Treaty establishing a Constitution for Europe (OJ 16.12.2004 C 310/63).
***
In short, between Nice and Lisbon only technical adjustments have been proposed, boiling down to the renumbering effected by the Treaty of Lisbon.
***
Article 51 TEC and ToL, renumbered Article 58 TFEU, encompasses the principle of freedom to provide services in the field of transport, but excepts transport services from the scope of the general chapter on services (Chapter 3).
TEC Title V ‘Transport’ reigns as ‘lex specialis’, meaning the current Articles 70 to 80 TEC on the common transport policy.
This corresponds with Title V ‘Transport’, Articles 70 to 80 ToL, but after renumbering these provisions are found in Title VI ‘Transport’, Articles 90 to 100 TFEU.
***
Banking and insurance are treated differently. Liberalisation of these sectors is supposed to advance in step with measures to open up the capital markets.
The second paragraph refers to the current Chapter 4 ‘Capital and payments’, Articles 56 to 60 TEC.
The corresponding ToL chapter is Chapter 4 ‘Capital and payments’, Articles 56 to 59 (with Article 61h ToL being renumbered Article 75 TFEU and moved to the provisions on the area of freedom, security and justice).
In the consolidated Lisbon Treaty Chapter 4 ‘Capital and payments’ includes the Articles 63 to 66 TFEU.
***
The interested reader can move directly to the sector specific treaty provisions mentioned above. This series of blog posts is advancing one Article at a time, so we will look at these provisions in due time.
At this stage, some further reading is suggested for interested readers.
***
Transport
A general introduction to EU transport policies is offered through the links of the European Commission’s Transport home page:
http://ec.europa.eu/transport/index_en.html
The European Commission dedicates pages 76 to 83 of its ‘General Report on the Activities of the European Union 2007’ to transport with subheadings on rail transport, road transport, maritime transport, inland navigation, air transport, intermodal approach (Galileo), international developments and Trans-European transport networks (TEN-T).
The government of Sweden publishes yearly reports to the parliament (and the public) on the activities of the European institutions: the EU, the Council of Europe and the OSCE. The depth of the EU report ‘Regeringens skrivelse 2007/08: 85 Berättelse om verksamheten i Europeiska unionen under 2007’, published 6 March 2008, is fully comparable to that of the Commission.
Part 7 (Del 7 Transporter, elektroniska kommunikationer och energi) deals with transport policy from page 163 to 180.
***
Banking and insurance (financial services; capital and payments)
A starting point for EU policies on financial services is offered through the links on the Commission’s internal market web page ‘Financial Services – General Policy:
http://ec.europa.eu/internal_market/finances/index_en.htm
Under the heading ‘Freedom to provide services and freedom of establishment’ the European Commission deals with developments concerning financial services on pages 50 to 53 of its ‘General Report on the Activities of the European Union 2007’.
Part 6 on competitiveness (Del 6 Konkurrenskraftsfrågor) of the Swedish report on EU activities in 2007 includes Chapter 29 on the free movement of services and capital (29 Fri rörlighet för tjänster och kapital), from page 139 to 142.
The UK House of Lords European Union Committee’s report ‘Single Market: Wallflower of Dancing Partner? Inquiry into the European Commission’s Review of the Single Market, Volume I: Report (HL Paper 36-I, published 8 February 2008) dedicates Chapter 7 to financial services (page 32 to 37).
The starting point of this timely assessment was the Committee’s feeling of an area in which the lack of progress has been disappointing.
***
The separateness of transport services and the parallel introduction of measures concerning banking and insurance services (financial services) with liberalisation of capital markets is underlined by the fact that they are excluded from the scope of the general Services Directive, to be implemented by the member states before 28 December 2009.
See Article 1 ‘Subject matter’, Article 2 ‘Scope’ and Article 3 ‘Relationship with other provisions of Community law’ of Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market, OJ 27.12.2006 L 376, p. 36–68:
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2006:376:0036:0068:EN:PDF
The express exclusion of transport services follows from Article 2(2)(d) and of financial services, such as banking and insurance from Article 2(2)(b) of the general Services Directive.
Ralf Grahn
We look at the current Article 51 of the Treaty establishing the European Community and its position in the EU Treaty of Lisbon.
Further reading is suggested for readers interested in EU law and policies concerning the transport and financial services sectors.
***
The Treaty of Lisbon (ToL) makes no specific amendment to Article 51 of the Treaty establishing the European Community (TEC). Cf. point 57 and 58 in Official Journal (OJ) 17.12.2007 C 306/55.
***
The current Article 51 TEC is found in the latest consolidated version of the treaties, TEU and TEC, in OJ 29.12.2006 C 321 E/62:
Article 51 TEC
1. Freedom to provide services in the field of transport shall be governed by the provisions of the title relating to transport.
2. The liberalisation of banking and insurance services connected with movements of capital shall be effected in step with the liberalisation of movement of capital.
***
According to the Lisbon Treaty, the provision should look like this in the Treaty on the Functioning of the European Union (TFEU) when we add the location of the Article and the future renumbering from the Tables of equivalences (OJ 17.12.2007 C 306/207-208) and note that no horizontal amendments seem to apply (Cf. OJ 17.12.2007 C 306/41-44):
Part Three ‘Policies and internal actions of the Union’
Title III (renumbered Title IV) ‘Free movement of persons, services and capital’
Chapter 3 ‘Services’
Article 51 TFEU (ToL), renumbered Article 58 TFEU
1. Freedom to provide services in the field of transport shall be governed by the provisions of the title relating to transport.
2. The liberalisation of banking and insurance services connected with movements of capital shall be effected in step with the liberalisation of movement of capital.
***
The first paragraph of Article III-31 of the draft Treaty establishing a Constitution for Europe referred to the ‘Section’ instead of the ‘title’ relating to transport, but proposed no other change (OJ 18.7.2003 C 169/33).
***
Only the referral to ‘Section 7 of Chapter III’ relating to transport differed from the other versions in Article III-146 of the Treaty establishing a Constitution for Europe (OJ 16.12.2004 C 310/63).
***
In short, between Nice and Lisbon only technical adjustments have been proposed, boiling down to the renumbering effected by the Treaty of Lisbon.
***
Article 51 TEC and ToL, renumbered Article 58 TFEU, encompasses the principle of freedom to provide services in the field of transport, but excepts transport services from the scope of the general chapter on services (Chapter 3).
TEC Title V ‘Transport’ reigns as ‘lex specialis’, meaning the current Articles 70 to 80 TEC on the common transport policy.
This corresponds with Title V ‘Transport’, Articles 70 to 80 ToL, but after renumbering these provisions are found in Title VI ‘Transport’, Articles 90 to 100 TFEU.
***
Banking and insurance are treated differently. Liberalisation of these sectors is supposed to advance in step with measures to open up the capital markets.
The second paragraph refers to the current Chapter 4 ‘Capital and payments’, Articles 56 to 60 TEC.
The corresponding ToL chapter is Chapter 4 ‘Capital and payments’, Articles 56 to 59 (with Article 61h ToL being renumbered Article 75 TFEU and moved to the provisions on the area of freedom, security and justice).
In the consolidated Lisbon Treaty Chapter 4 ‘Capital and payments’ includes the Articles 63 to 66 TFEU.
***
The interested reader can move directly to the sector specific treaty provisions mentioned above. This series of blog posts is advancing one Article at a time, so we will look at these provisions in due time.
At this stage, some further reading is suggested for interested readers.
***
Transport
A general introduction to EU transport policies is offered through the links of the European Commission’s Transport home page:
http://ec.europa.eu/transport/index_en.html
The European Commission dedicates pages 76 to 83 of its ‘General Report on the Activities of the European Union 2007’ to transport with subheadings on rail transport, road transport, maritime transport, inland navigation, air transport, intermodal approach (Galileo), international developments and Trans-European transport networks (TEN-T).
The government of Sweden publishes yearly reports to the parliament (and the public) on the activities of the European institutions: the EU, the Council of Europe and the OSCE. The depth of the EU report ‘Regeringens skrivelse 2007/08: 85 Berättelse om verksamheten i Europeiska unionen under 2007’, published 6 March 2008, is fully comparable to that of the Commission.
Part 7 (Del 7 Transporter, elektroniska kommunikationer och energi) deals with transport policy from page 163 to 180.
***
Banking and insurance (financial services; capital and payments)
A starting point for EU policies on financial services is offered through the links on the Commission’s internal market web page ‘Financial Services – General Policy:
http://ec.europa.eu/internal_market/finances/index_en.htm
Under the heading ‘Freedom to provide services and freedom of establishment’ the European Commission deals with developments concerning financial services on pages 50 to 53 of its ‘General Report on the Activities of the European Union 2007’.
Part 6 on competitiveness (Del 6 Konkurrenskraftsfrågor) of the Swedish report on EU activities in 2007 includes Chapter 29 on the free movement of services and capital (29 Fri rörlighet för tjänster och kapital), from page 139 to 142.
The UK House of Lords European Union Committee’s report ‘Single Market: Wallflower of Dancing Partner? Inquiry into the European Commission’s Review of the Single Market, Volume I: Report (HL Paper 36-I, published 8 February 2008) dedicates Chapter 7 to financial services (page 32 to 37).
The starting point of this timely assessment was the Committee’s feeling of an area in which the lack of progress has been disappointing.
***
The separateness of transport services and the parallel introduction of measures concerning banking and insurance services (financial services) with liberalisation of capital markets is underlined by the fact that they are excluded from the scope of the general Services Directive, to be implemented by the member states before 28 December 2009.
See Article 1 ‘Subject matter’, Article 2 ‘Scope’ and Article 3 ‘Relationship with other provisions of Community law’ of Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market, OJ 27.12.2006 L 376, p. 36–68:
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2006:376:0036:0068:EN:PDF
The express exclusion of transport services follows from Article 2(2)(d) and of financial services, such as banking and insurance from Article 2(2)(b) of the general Services Directive.
Ralf Grahn
Subscribe to:
Posts (Atom)
Subscribe To Grahnlaw
Posts
All Comments
