EU materials: European Union terminology, procedures and sources 2010

Much of the existing literature on the European Union was published before the Treaty of Lisbon entered into force on 1 December 2009.

Outdated references to institutions, powers, procedures, legal bases, terms etc. tend to obscure the discussion on European Union affairs.

In the United Kingdom, the House of Commons Library does a great public service by producing Standard Notes on various subjects.

With regard to the European Union, I would like to draw attention to a Standard Note, which was updated recently, with the following aim:

This Note aims to clarify some of the terminology used to describe the institutions, laws and procedures of the European Union. It also provides links to useful sources of information on the EU.

UK House of Commons Library Note: The European Union: a guide to terminology, procedures and sources (Standard Note SN/IA/3689; last updated 24 March 2010; 14 pages; authors Vaughne Miller and Emma Clark)



Contents

1 Introduction 3

2 European ‘Community’, ‘Communities’ and ‘Union’ 3

3 The three ‘Pillars’ 4

4 EC law or EU law? 4

5 Treaty of Rome or Treaty of Lisbon? What to call the Treaty 5

6 Referencing Treaty articles 5

7 “Member State”: use of capital letters 5

8 European Council, Council of Ministers, Council of Europe 6
8.1 The European Council 6
8.2 The Council 6
8.3 The Council of Europe 7

9 European Courts 7

10 Legal instruments 7

11 Council and Commission legislation 8

12 The Acquis Communautaire 8

13 Official Journal 8

14 Legislative procedures 8
14.1 Ordinary Legislative Procedure 8
14.2 Consent 9
14.3 Consultation 9

15 Searching for EU legislation and documentation 10
15.1 Searching in Europe 10
15.2 Searching in the Member States 10
15.3 Searching in PIMS 10

16 Current information on the EU 11
16.1 Institutions 11
16.2 On-line news sources 12
16.3 Recent and forthcoming events 12
16.4 Addresses and telephone numbers 12

17 Reading List 13
17.1 General publications 13
17.2 European Union publications 13
17.3 House of Commons Library publications 13
17.4 Official Publications 14



In addition to Members of Parliament, this Standard Note is a most welcome reference for students of EU law and politics, as well as journalists reporting on European affairs.




Ralf Grahn

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: New State Aid Simplification Package

Despite its intensive work on state aid rules and decisions related to the financial and economic crisis, the Commission has launched two measures aiming at general state aid reform.

The European Commission has published a State Aid Simplification Package, which consists of two parts. For a quick view, see press release State aid: Commission adopts Simplification Package to accelerate state aid decisions (29 April 2009; IP/09/659).



The background MEMO/09/208, State aid: Commission adopts Best Practices Code and Simplified Procedure to accelerate state aid decisions – frequently asked questions, offers more information.



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Simplified procedure

The Notice from the Commission on a simplified procedure for treatment of certain types of State aid (Text with EEA relevance) has no date or number, but this is probably the document in question.




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Best Practice Code

The Notice from the Commission on a Best Practices Code on the conduct of State aid control proceedings lacks both date and number, but this is probably the second document meant by the Commission.


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State aid procedure

The Commission > Competition > State aid > State aid control > Legislation > Rules on Procedure web pages offer background but also an array of documents, including the two latest Notices.



There are also Citizen Summaries available.

Despite the pressures, clear identifiers would help readers.



Ralf Grahn

EU: Special legislative procedure (VIII & detour)

A post in our series on the various functions of the Council of the European Union elicited comments by JL about the absence of a presentation of the procedural aspects of the special legislative procedure, where the latest posts had covered the ground concerning subject matter.

Let us turn to the Council’s Rules of Procedure to complement our series with procedural aspects of the Council’s legislative work.

These provisions are of general interest with regard to the character of Council work and principles such as openness, transparency and accountability.

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Materials

The latest consolidated version of Council Decision 2006/683/EC, Euratom of 15 September 2006 adopting the Council's Rules of Procedure, originally published OJEU 16.10.2006 L 285/47, seems to be of 1 January 2009.



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In a legislative capacity

Article 7 of the Council’s Rules of Procedure distinguishes the situations and sets the limits of the situations where the Council acts in a legislative capacity:


Article 7
Cases where the Council acts in its legislative capacity

The Council acts in its legislative capacity within the meaning of the second subparagraph of Article 207(3) of the EC Treaty when it adopts rules which are legally binding in or for the Member States, by means of regulations, directives, framework decisions or decisions, on the basis of the relevant provisions of the Treaties, with the exception of discussions leading to the adoption of internal measures, administrative or budgetary acts, acts concerning interinstitutional or international relations or non-binding acts (such as conclusions, recommendations or resolutions).

Where legislative proposals or initiatives are submitted to it the Council shall refrain from adopting acts which are not provided for by the Treaties, such as resolutions, conclusions or declarations other than those referred to in Article 9.


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Open deliberations

Article 8 contains provision on discussions in public and their availability on the web.

When the co-decision procedure applies (future ordinary legislative procedure), the presentation and the opening debate on a proposed legislative act is open, as well as other Council deliberations, the closing debate and the vote.

Other important new legislative proposals are normally discussed in public, and they may be discussed publicly later. This includes proposals falling under the special legislative procedure.

Special public debates may be arranged on important issues.

The 18 montth programmer of the troika (or trio) and other policy programmes are debated in public.

Items set for public deliberation or public debate are marked on the agenda.

The public discussions are available on the web.


Article 8
Council deliberations open to the public and public debates

1. Council deliberations on legislative acts to be adopted in accordance with the codecision procedure under Article 251 of the EC Treaty shall be open to the public as follows:

(a) the presentation, if any, by the Commission of its legislative proposals and the ensuing deliberation in the Council shall be open to the public;

(b) the vote on such legislative acts shall be open to the public, as well as the final Council deliberations leading to that vote and the explanations of voting accompanying it;

(c) all other Council deliberations on such legislative acts shall be open to the public, unless, on a case by case basis, the Council or Coreper decides otherwise with regard to a given deliberation.

2. The Council's first deliberation on important new legislative proposals other than those to be adopted in accordance with the codecision procedure shall be open to the public. The Presidency shall identify which new legislative proposals are important and the Council or Coreper may decide otherwise, whenever appropriate. The Presidency may decide, on a case by case basis, that the subsequent Council deliberations on a particular legislative act shall be open to the public, unless the Council or Coreper decides otherwise.

3. On a decision taken by the Council or by Coreper, acting by a qualified majority, the Council shall hold public debates on important issues affecting the interests of the European Union and its citizens.

It shall be for the Presidency, any member of the Council, or the Commission to propose issues or specific subjects for such debates, taking into account the importance of the matter and its interest to citizens.

4. The General Affairs and External Relations Council convened in a meeting as referred to in Article 2(2)(a) shall hold a public policy debate on the Council's 18-month programme. Policy debates in other Council configurations on their priorities shall also be held in public. The Commission's presentation of its five-year programme, of its annual work programme and of its annual policy strategy, as well as the ensuing debate in the Council, shall be public.

5. As from the sending of the provisional agenda pursuant to Article 3:

(a) those items on the agenda of the Council which are open to the public in accordance with paragraphs 1 and 2 shall be marked with the words “public deliberation”;

(b) those items on the agenda of the Council which are open to the public in accordance with paragraphs 3 and 4 shall be marked with the words “public debate”.

The opening to the public of Council deliberations and public debates in accordance with this Article shall be made through public transmission by audiovisual means, notably in an overflow room and through broadcasting in all official languages of the institutions of the European Union using video-streaming. A recorded version shall remain available for at least one month on the Council's Internet site. The outcome of voting shall be indicated by visual means.

The General Secretariat shall as far as possible inform the public in advance of the dates and approximate time on which such audiovisual transmissions will take place and shall take all practical measures to ensure the proper implementation of this Article.


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Public votes etc.

Legislative votes and explanations of votes as well as such minutes are made public.

The same principle applies with regard to common positions in relation to legislative acts in accordance with the codecision and the cooperation procedure and related Conciliation Committee proceedings, as well as statements concerning the establishment of a convention regarding police and judicial cooperation in criminal matters.

Various final votes are made public.


Article 9
Making public votes, explanations of votes and minutes

1. In addition to cases where Council deliberations are open to the public under Article 8(1), where the Council acts in its legislative capacity within the meaning of Article 7, the results of votes and explanations of votes by Council members, as well as the statements in the Council minutes and the items in those minutes relating to the adoption of legislative acts, shall be made public.

The same rule shall apply for:

(a) results of votes and explanations of votes, as well as the statements in the Council minutes and the items in those minutes relating to the adoption of a common position pursuant to Article 251 or Article 252 of the EC Treaty;

(b) results of votes and explanations of votes by members of the Council or their representatives on the Conciliation Committee set up by Article 251 of the EC Treaty, as well as the statements in the Council minutes and the items in those minutes relating to the Conciliation Committee meeting;

(c) results of votes and explanations of votes, as well as the statements in the Council minutes and the items in those minutes relating to the establishment by the Council of a convention on the basis of Title VI of the EU Treaty.

2. Moreover, the results of votes shall be made public:

(a) when the Council acts pursuant to Title V of the EU Treaty, by a unanimous Council or Coreper decision taken at the request of one of their members;

(b) when the Council adopts a common position within the meaning of Title VI of the EU Treaty, by a unanimous Council or Coreper decision taken at the request of one of their members;

(c) in other cases, by Council or Coreper decision taken at the request of one of their members.

When the result of a vote in the Council is made public in accordance with points (a), (b) and (c) of the first subparagraph, the explanations of votes made when the vote was taken shall also be made public at the request of the Council members concerned, with due regard for these Rules of Procedure, legal certainty and the interests of the Council.

Statements entered in the Council minutes and items in those minutes relating to the adoption of the acts referred to in points (a), (b) and (c) of the first subparagraph shall be made public by Council or Coreper decision taken at the request of one of their members.

3. Except in cases where Council deliberations are open to the public in accordance with Article 8, votes shall not be made public in the case of discussions leading to indicative votes or the adoption of preparatory acts.


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Public access to Council documents

Public access to documents is a cornerstone of accountability and transparency. Article 10 of the Council’s Rules of Procedure refers to Annex II, which is presented below. Documents from and positions of member states are a special concern.

(The main rules are found in Regulation (EC) No 1049/2001. The Commission’s proposal to repeal and replace the Regulation by a new Regulation regarding public access to European Parliament, Council and Commission documents; Brussels, 30.4.2008, COM(2008) 229 final 2008/0090 (COD), is a hotly discussed issue between the EU institutions and questioned by NGOs and experts, but that is another story).


Council’s Rules of Procedure:


Article 10
Public access to Council documents
The specific provisions regarding public access to Council documents are set out in Annex II.

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Specific provisions



ANNEX II
SPECIFIC PROVISIONS REGARDING PUBLIC ACCESS TO COUNCIL DOCUMENTS



Article 1
Scope

Any natural or legal person shall have access to Council documents subject to the principles, conditions and limits laid down in Regulation (EC) No 1049/2001 and the specific provisions laid down in this Annex.



Article 2
Consultation as regards third-party documents

1. For the purpose of applying Article 4(5) and Article 9(3) of Regulation (EC) No 1049/2001 and unless it is clear, upon examination of the document in the light of Article 4(1), (2) and (3) of Regulation (EC) No 1049/2001, that it shall not be disclosed, the third party concerned shall be consulted if:

(a) the document is a sensitive document as defined in Article 9(1) of Regulation (EC) No 1049/2001;

(b) the document originates from a Member State and

was submitted to the Council before 3 December 2001; or

the Member State concerned requested that it not be disclosed without its prior agreement.

2. In all other cases, where the Council receives an application for a third-party document in its possession, the General Secretariat, for the purpose of applying Article 4(4) of Regulation (EC) No 1049/2001, shall consult the third party concerned unless it is clear, upon examination of the document in the light of Article 4(1), (2) and (3) of Regulation (EC) No 1049/2001, that it shall or shall not be disclosed.

3. The third party shall be consulted in writing (including by e-mail) and be given a reasonable time limit for its reply, taking into account the time limit laid down in Article 7 of Regulation (EC) No 1049/2001. In the cases referred to in paragraph 1, the third party shall be asked to give its opinion in writing.

4. Where the document does not fall within paragraph 1(a) or (b) and the General Secretariat, in the light of the third party's negative opinion, is not satisfied that Article 4(1) or (2) of Regulation (EC) No 1049/2001 is applicable, the Council shall be seized of the matter.

If the Council envisages the release of the document, the third party shall be informed immediately in writing of the Council's intention to release the document after a time period of at least 10 working days. At the same time, the third party's attention shall be drawn to Article 243 of the EC Treaty.



Article 3
Requests for consultation received from other institutions or from Member States

Requests for consultations with the Council made by another institution or a Member State concerning an application for a Council document shall be sent via e-mail to access@consilium.europa.eu or by fax to (32-2) 281 63 61.

The General Secretariat shall give its opinion on behalf of the Council promptly, taking into account any time limit required for a decision to be made by the institution or the Member State concerned, and at the latest within five working days.



Article 4
Documents originating from Member States

Any request by a Member State under Article 4(5) of Regulation (EC) No 1049/2001 shall be made in writing to the General Secretariat.



Article 5
Referral of requests by Member States

When a Member States refers to a request to the Council, it shall be handled in accordance with Articles 7 and 8 of Regulation (EC) No 1049/2001 and the relevant provisions of this Annex. In the event of a total or partial refusal of access, the applicant shall be informed that any confirmatory application must be addressed directly to the Council.



Article 6
Address for applications

Applications for access to a document shall be addressed in writing to the Secretary-General of the Council/High Representative, rue de la Loi/Wetstraat 175, B-1048 Brussels, by e-mail to access@consilium.europa.eu or by fax to (32-2) 281 63 61.



Article 7
Processing of initial applications

Subject to Article 9(2) and (3) of Regulation (EC) No 1049/2001, any application for access to a Council document shall be handled by the General Secretariat.



Article 8
Processing of confirmatory applications

Subject to Article 9(2) and (3) of Regulation (EC) No 1049/2001, any confirmatory application shall be decided upon by the Council.



Article 9
Charges

The charges for producing and sending copies of Council documents shall be set by the Secretary-General.



Article 10
Public register of Council documents

1. The General Secretariat shall be responsible for providing public access to the register of Council documents.

2. In addition to the references to documents, it shall be indicated in the register which documents drawn up after 1 July 2000 have already been released to the public. Subject to Regulation (EC) No 45/2001 of the European Parliament and of the Council of 18 December 2000 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data (1) and Article 16 of Regulation (EC) No 1049/2001, their content shall be made available on the Internet.



Article 11
Documents directly accessible to the public

1. This Article shall apply to all Council documents, provided that they are not classified and without prejudice to the possibility of making a written application in accordance with Article 6 of Regulation (EC) No 1049/2001.

2. For the purpose of this Article:

— “circulation” shall mean distribution of the final version of a document to the members of the Council, their representatives or delegates,

— “legislative document” shall mean any document concerning the examination and adoption of a legislative act within the meaning of Article 7 of the Rules of Procedure.

3. The General Secretariat shall make the following documents available to the public as soon as they have been circulated:

(a) documents of which neither the Council nor a Member State is the author, which have been made public by their author or with his agreement;

(b) provisional agenda for meetings of the Council in its various configurations;

(c) any text adopted by the Council and intended to be published in the Official Journal.

4. Provided that they are clearly not covered by any of the exceptions laid down in Article 4 of Regulation (EC) No 1049/2001, the General Secretariat may also make the following documents available to the public as soon as they have been circulated:

(a) provisional agenda of committees and working parties;

(b) other documents, such as information notes, reports, progress reports and reports on the state of discussions in the Council or one of its preparatory bodies which do not reflect individual positions of delegations, excluding Legal Service opinions and contributions.

5. The General Secretariat shall make the following legislative documents available to the public, in addition to the documents referred to in paragraphs 3 and 4, as soon as they have been circulated:

(a) cover notes and copies of letters concerning legislative acts addressed to the Council by other institutions or bodies of the European Union or, subject to Article 4(5) of Regulation (EC) No 1049/2001, by a Member State;

(b) documents submitted to the Council which are listed under an item on its agenda marked with the words “public deliberation” or “public debate” in accordance with Article 8 of the Rules of Procedure;

(c) notes submitted to Coreper and/or to the Council for approval (I/A and A item notes), as well as the draft legislative acts to which they refer;

(d) decisions adopted by the Council during the procedure referred to in Article 251 of the EC Treaty and joint texts approved by the Conciliation Committee.

6. After adoption of one of the decisions referred to in paragraph 5(d) or final adoption of the act concerned, the General Secretariat shall make available to the public any legislative documents relating to this act which were drawn up before one of such decisions and which are not covered by any of the exceptions laid down in Article 4(1), (2) and (3), second subparagraph, of Regulation (EC) No 1049/2001, such as information notes, reports, progress reports and reports on the state of discussions in the Council or in one of its preparatory bodies (outcomes of proceedings), excluding Legal Service opinions and contributions.

At the request of a Member State, documents which are covered by the first subparagraph and reflect the individual position of that Member State's delegation in the Council shall not be made available to the public under these provisions.


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Readers are welcome to share their experiences of the Council’s work methods and opennessi including the functionality of its web pages and search functions.

After this detour, the next instalment in this series is going to return the matters subject to the special legislative procedure, not yet covered in the previous posts.


Ralf Grahn

European Parliament: Amendments Rules of Procedure

The European Parliament’s Rules of Procedure regulate the proceedings in the EP. They build on parliamentary traditions and their aim is the orderly conduct of parliamentary business. But ‘objective’ rules may or may not favour larger groups at the expense of smaller ones or non-attached members. In other words, they can have political consequences.

With a view to serve MEP candidates and campaign groups, journalists, researchers, students and interested citizens, we take a look at some procedures (2008 and 2009) to amend or interpret the Rules of Procedure of the European Parliament.

This overview shows that refining and interpreting the Rules of Procedure is an ongoing work.


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Interpretations appended


On 2 September 2008 the European Parliament decided to append the following interpretation to Rule 182.
1. Decides to append the following interpretation to Rule 182:"
Rule 182(1) does not preclude the chair of the main committee from involving the chairs of the subcommittees in the work of the bureau or from permitting them to chair debates on issues specifically dealt with by the subcommittees in question – indeed, it allows this – provided that this way of proceeding is submitted to the bureau in its entirety for its consideration and that it receives the bureau's agreement.

Source: Resolution P6_TA-PROV(2008)0388 ; procedure REG/2008/2075.

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On 19 February 2009 the European Parliament approved two interpretations, which were appended to the Rules in question:

1. Decides to append the following interpretation to Rule 47:"

For the purposes of examining international agreements under Rule 83, the procedure with associated committees set out in Rule 47 may not be applied in relation to the assent procedure under Rule 75.
"
2. Decides to append the following interpretation to Rule 149(4):"

Members who have asked for the quorum to be established must be present in the Chamber when the request is made.

Source: Resolution P6_TA-PROV(2009)0080 ; Procedures REG/2009/2017 and REG/2008/2327.

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AFCO interpretation

The Committee on Constitutional Affairs, which had been consulted on the application of Rule 179(3), provided the following interpretation on that provision:
'If Parliament, acting pursuant to Rule 175 of the Rules of Procedure, has conferred a task on a temporary committee, no committees shall be asked for their opinions, unless determined otherwise on the basis of the mandate approved by Parliament or of decisions taken by the temporary committee in the light of that mandate.'

Source: Procedure REG/2008/2076.

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Amendment of Rule 81 on implementing measures

On 8 May 2008 the European Parliament amended rule 81(4)(a) on implementing measures, by Resolution P6_TA(2008)0190:

(a) the time for scrutiny shall start to run when the draft of measures has been submitted to Parliament in all official languages. Where shorter time-limits apply (Article 5a(5)(b) of Council Decision 1999/468/EC laying down the procedures for the exercise of implementing powers conferred on the Commission) and in cases of urgency (Article 5a(6) of Decision 1999/468/EC), the time for scrutiny shall, unless the Chair of the committee responsible objects, start to run from the date of receipt by Parliament of the final draft implementing measures in the language versions submitted to the members of the committee established in accordance with Decision 1999/468/EC. Rule 138 shall not apply in this case ;

Sources: Procedure REG/2008/2027; AFCO Report A6-0108/2008 included the justification (explanation), which concerns implementing powers delegated to the Commission.


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Duties of the EP President

On 31 January 2008 the European Parliament adopted a Resolution interpreting the duties of the President, with the aim to curb the use of procedural means (for minority groups) to prolong the sittings of Parliament. The wording gives its blessing to the decisions already taken by the EP President to refuse demands for time-consuming procedures by “fringe” groups:

1. Adopts the following interpretation of Rule 19:"
'Rule 19(1) can be interpreted as meaning that the powers conferred by that Rule include the power to call an end to the excessive use of motions such as points of order, procedural motions, explanations of vote and requests for separate, split or roll-call votes where the President is convinced that these are manifestly intended to cause and will result in a prolonged and serious obstruction of the procedures of the House or the rights of other Members';

Sources: Resolution P6_TA(2008)0024; procedure REG/2008/2016.


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Transitional language rules

On 11 March 2009 the European Parliament adopted a resolution to prolong the provisional derogations with regard to the use of especially Irish and Maltese until the end of the parliamentary term from 2009 to 2014.

Because the Resolution is fresh and requires attentive reading, but may be of interest to some of the visitors to this blog, we present the explanatory text as well:


The European Parliament ,
– having regard to Article 290 of the EC Treaty,
– having regard to Council Regulation No 1 of 15 April 1958 determining the languages to be used by the European Economic Community(1) , as last amended by Council Regulation (EC) No 920/2005(2) ,
– having regard to the Code of Conduct on Multilingualism adopted by the Bureau on 17 November 2008,
– having regard to the Bureau's decision of 13 December 2006 on a derogation from Rule 138 and its subsequent decisions extending that derogation until the end of the current parliamentary term,
– having regard to Rules 138 and 139 of its Rules of Procedure,
A. whereas, pursuant to Rule 138, all Parliament's documents are to be drawn up in the official languages, and all Members have the right to speak in Parliament in the official language of their choice, with interpretation into the other official languages,
B. whereas, under Rule 139, derogations from Rule 138 are permissible until the end of the sixth parliamentary term if, and to the extent that, despite adequate precautions, the linguists required for an official language are not available in sufficient numbers; whereas with respect to each official language for which a derogation is considered necessary, the Bureau, on a proposal from the Secretary-General, shall ascertain whether the conditions are fulfilled, and the Bureau shall review its decision every six months,
C. whereas, on 13 December 2006, the Bureau accepted that the difficulties of providing sufficient language cover for Maltese, Romanian, Bulgarian and Irish were such that the conditions were fulfilled for a derogation from Rule 138 in respect of each of those languages; whereas by subsequent Bureau decisions those derogations have been extended such that, from 1 January 2009 until the end of the parliamentary term, a derogation applies in respect of Bulgarian and Romanian (interpretation), Czech (interpretation during the Czech Council Presidency), Maltese (interpretation and translation) and Irish (interpretation, translation and legal-linguistic verification),
D. whereas Council Regulation (EC) No 920/2005 provides for temporary (renewable) derogation measures for a five-year period in respect of Irish,
E. whereas, despite all adequate precautions, the capacity in Irish and Maltese is not expected to be such as to allow a full interpretation service in those languages from the beginning of the seventh parliamentary term; whereas, for certain other languages, although there will be sufficient capacity to cover the needs arising from the usual activities of Parliament, the number of interpreters may not be sufficient to allow full coverage of all the extra needs expected during the Council Presidencies of the Member States concerned during the seventh parliamentary term,
F. whereas, despite sustained and continuous interinstitutional efforts, the number of qualified translators and lawyer-linguists is still expected to be so limited as regards Irish that, for the foreseeable future, only a reduced coverage of that language can be assured; whereas Council Regulation (EC) No 920/2005 does not require legislation of the European Union adopted before 1 January 2007 ('the Acquis ') to be translated into Irish; whereas, as a result of the derogation measures laid down in that Regulation, only Commission proposals for codecision regulations are currently being presented in Irish and, as long as this situation persists, it will not be possible for Parliament's services to prepare Irish versions of other types of legal act,
G. whereas, during the seventh parliamentary term, other European States may become members of the European Union; whereas, for the new languages concerned, linguists may not be available in sufficient numbers from the day of accession, which will require transitional measures,
H. whereas Rule 139(4) provides that, on a reasoned recommendation from the Bureau, Parliament may decide, at the end of the parliamentary term, to extend that Rule,
I. whereas, in the light of the foregoing, the Bureau has recommended that Rule 139 be extended until the end of the seventh parliamentary term,
1. Decides to extend the applicability of Rule 139 of Parliament's Rules of Procedure until the end of the seventh parliamentary term;
2. Instructs its President to forward this decision to the Council and the Commission for information.

Source: Procedure RSO/2009/2563; Resolution P6_TA-PROV(2009)0116.


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Earlier procedures

Earlier procedures were omitted, but here are some from 2007 in short form:

REG/2007/2272 plenary proceedings; Corbett
REG/2007/2266 Rule 121 on ECJ proceedings; Botopoulos
REG/2007/2240 symbols of the Union; Carnero González
REG/2007/2170 interprettion Rule 116; Corbett
REG/2007/2137 Rule 173 verbatim reports; Corbett



Ralf Grahn

EU Law: Concluding international agreements

The merger of the European Community into the European Union facilitates the conclusion of international agreements, which is reflected in the general procedure for concluding these agreements in the Treaty of Lisbon. The legitimacy of international agreements is enhanced by the strengthening of the role of the European Parliament, but. CFSP agreements and certain other agreements still require unanimous Council decisions and leave the EP to be consulted.



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Current treaty

Article 300 of the Treaty establishing the European Community provides for the procedure leading to the conclusion of international agreements between the EC and third countries or international organisations.

The Commission conducts the negotiations, but the Council decides on every major step from the opening of negotiations onward, as shown in the latest consolidated version of the treaties, published OJEU 29.12.2006 C 321 E/176–177:

Article 300 TEC

1. Where this Treaty provides for the conclusion of agreements between the Community and one or more States or international organisations, the Commission shall make recommendations to the Council, which shall authorise the Commission to open the necessary negotiations. The Commission shall conduct these negotiations in consultation with special committees appointed by the Council to assist it in this task and within the framework of such directives as the Council may issue to it.

In exercising the powers conferred upon it by this paragraph, the Council shall act by a qualified majority, except in the cases where the first subparagraph of paragraph 2 provides that the Council shall act unanimously.

2. Subject to the powers vested in the Commission in this field, the signing, which may be accompanied by a decision on provisional application before entry into force, and the conclusion of the agreements shall be decided on by the Council, acting by a qualified majority on a proposal from the Commission. The Council shall act unanimously when the agreement covers a field for which unanimity is required for the adoption of internal rules and for the agreements referred to in Article 310.

By way of derogation from the rules laid down in paragraph 3, the same procedures shall apply for a decision to suspend the application of an agreement, and for the purpose of establishing the positions to be adopted on behalf of the Community in a body set up by an agreement, when that body is called upon to adopt decisions having legal effects, with the exception of decisions supplementing or amending the institutional framework of the agreement.

The European Parliament shall be immediately and fully informed of any decision under this paragraph concerning the provisional application or the suspension of agreements, or the establishment of the Community position in a body set up by an agreement.

3. The Council shall conclude agreements after consulting the European Parliament, except for the agreements referred to in Article 133(3), including cases where the agreement covers a field for which the procedure referred to in Article 251 or that referred to in Article 252 is required for the adoption of internal rules. The European Parliament shall deliver its opinion within a time limit which the Council may lay down according to the urgency of the matter. In the absence of an opinion within that time limit, the Council may act.

By way of derogation from the previous subparagraph, agreements referred to in Article 310, other agreements establishing a specific institutional framework by organising cooperation procedures, agreements having important budgetary implications for the Community and agreements entailing amendment of an act adopted under the procedure referred to in Article 251 shall be concluded after the assent of the European Parliament has been obtained.

The Council and the European Parliament may, in an urgent situation, agree upon a time limit for the assent.

4. When concluding an agreement, the Council may, by way of derogation from paragraph 2, authorise the Commission to approve modifications on behalf of the Community where the agreement provides for them to be adopted by a simplified procedure or by a body set up by the agreement; it may attach specific conditions to such authorisation.

5. When the Council envisages concluding an agreement which calls for amendments to this Treaty, the amendments must first be adopted in accordance with the procedure laid down in Article 48 of the Treaty on European Union.

6. The European Parliament, the Council, the Commission or a Member State may obtain the opinion of the Court of Justice as to whether an agreement envisaged is compatible with the provisions of this Treaty. Where the opinion of the Court of Justice is adverse, the agreement may enter into force only in accordance with Article 48 of the Treaty on European Union.

7. Agreements concluded under the conditions set out in this Article shall be binding on the institutions of the Community and on Member States.


***

The original Lisbon Treaty

Article 2, point 173 of the original Treaty of Lisbon inserted an Article 188n replacing Article 300 TEC, in OJEU 17.12.2007 C 306/97–98:

173) An Article 188 N shall be inserted, replacing Article 300:

[Text not repeated here]


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Consolidated Lisbon Treaty

If the Treaty of Lisbon enters into force, here is what the renumbered Article 218 TFEU would look like; consolidated version of the Treaty on the Functioning of the European Union, published OJEU 9.5.2008 C 115/144–146:


Article 218 TFEU
(ex Article 300 TEC)

1. Without prejudice to the specific provisions laid down in Article 207, agreements between the Union and third countries or international organisations shall be negotiated and concluded in accordance with the following procedure.

2. The Council shall authorise the opening of negotiations, adopt negotiating directives, authorise the signing of agreements and conclude them.

3. The Commission, or the High Representative of the Union for Foreign Affairs and Security Policy where the agreement envisaged relates exclusively or principally to the common foreign and security policy, shall submit recommendations to the Council, which shall adopt a decision authorising the opening of negotiations and, depending on the subject of the agreement envisaged, nominating the Union negotiator or the head of the Union's negotiating team.

4. The Council may address directives to the negotiator and designate a special committee in consultation with which the negotiations must be conducted.

5. The Council, on a proposal by the negotiator, shall adopt a decision authorising the signing of the agreement and, if necessary, its provisional application before entry into force.

6. The Council, on a proposal by the negotiator, shall adopt a decision concluding the agreement.

Except where agreements relate exclusively to the common foreign and security policy, the Council shall adopt the decision concluding the agreement:

(a) after obtaining the consent of the European Parliament in the following cases:

(i) association agreements;

(ii) agreement on Union accession to the European Convention for the Protection of Human Rights and Fundamental Freedoms;

(iii) agreements establishing a specific institutional framework by organising cooperation procedures;

(iv) agreements with important budgetary implications for the Union;

(v) agreements covering fields to which either the ordinary legislative procedure applies, or the special legislative procedure where consent by the European Parliament is required.

The European Parliament and the Council may, in an urgent situation, agree upon a time-limit for consent.

(b) after consulting the European Parliament in other cases. The European Parliament shall deliver its opinion within a time-limit which the Council may set depending on the urgency of the matter. In the absence of an opinion within that time-limit, the Council may act.

7. When concluding an agreement, the Council may, by way of derogation from paragraphs 5, 6 and 9, authorise the negotiator to approve on the Union's behalf modifications to the agreement where it provides for them to be adopted by a simplified procedure or by a body set up by the agreement. The Council may attach specific conditions to such authorisation.

8. The Council shall act by a qualified majority throughout the procedure.

However, it shall act unanimously when the agreement covers a field for which unanimity is required for the adoption of a Union act as well as for association agreements and the agreements referred to in Article 212 with the States which are candidates for accession. The Council shall also act unanimously for the agreement on accession of the Union to the European Convention for the Protection of Human Rights and Fundamental Freedoms; the decision concluding this agreement shall enter into force after it has been approved by the Member States in accordance with their respective constitutional requirements.

9. The Council, on a proposal from the Commission or the High Representative of the Union for Foreign Affairs and Security Policy, shall adopt a decision suspending application of an agreement and establishing the positions to be adopted on the Union's behalf in a body set up by an agreement, when that body is called upon to adopt acts having legal effects, with the exception of acts supplementing or amending the institutional framework of the agreement.

10. The European Parliament shall be immediately and fully informed at all stages of the procedure.

11. A Member State, the European Parliament, the Council or the Commission may obtain the opinion of the Court of Justice as to whether an agreement envisaged is compatible with the Treaties. Where the opinion of the Court is adverse, the agreement envisaged may not enter into force unless it is amended or the Treaties are revised.


***

Comments

The abolishment of the separate European Union and the European Community by merging the EC into the EU, with legal personality, extends and facilitates the general procedure for negotiating and concluding international agreements.

The agreements are concluded in the name of the European Union.

International agreements relating to the common foreign and security (CFSP) still have special traits within the general procedure.

The role of the European Parliament is strengthened where its consent is needed.

Unanimity remains the rule for Council decisions in the following cases:

· When unanimity is required for the adoption of a Union act
· Association agreements
· Economic, financial and technical cooperation agreements with candidates for accession
· Accession of the EU to the European Convention for the Protection of Human Rights and Fundamental Freedoms (plus ratification needed)

In substance Article 218 TFEU is similar to Article III-325 of the Constitutional Treaty, with the addition that the European Convention on Human Rights requires both unanimous decision and ratification by the member states.



Ralf Grahn

EU Law: Legislating research

In this post we look at European Community (European Union) procedures to adopt the acts for European research and technological development.

We recapitulate legal acts in force and point to proposals aiming at developing research infrastructures by new means.

***


Article 172 TEC

Article 172 (ex Article 130o) of the Treaty establishing the European Community (TEC) sets out the procedures for some of the acts concerning research and technological development.
Paragraph 1 refers to the joint undertakings (Joint Technology Initiatives, JTIs) or any other structure necessary for the efficient execution of Community research, technological development and demonstration programmes, mentioned in Article 171.

The Commission proposes, the Economic and Social Committee (ESC) is consulted, the European Parliament is merely consulted, and the Council adopts the provisions by qualified majority.

The second paragraph relates to the implementing rules for the participation in the multiannual framework programme and the dissemination of research results (Article 167), supplementary research programmes, especially dissemination of knowledge and access by other member states (Article 168) and participation in research and development programmes undertaken by several member states (Article 169).

The Economic and Social Committee is consulted, and the co-decision procedure applies. The supplementary programmes must be approved by the member states concerned.


Outside the scope of Article 172 TEC are the following: The multiannual framework programme itself, adopted by co-decision according to Article 166(1), the specific programmes adopted by the Council by a qualified majority on a proposal from the Commission and after consulting the European Parliament, pursuant to Article 166(4) and international agreements (with third countries or international organisations; Article 170).


The current Article 172 of the Treaty establishing the European Community (TEC), as published in the latest consolidated version of the treaties, OJEU 29.12.2006 C 321 E/123:

(TITLE XVIII
RESEARCH AND TECHNOLOGICAL DEVELOPMENT)

Article 172 TEC

The Council, acting by qualified majority on a proposal from the Commission and after consulting the European Parliament and the Economic and Social Committee, shall adopt the provisions referred to in Article 171.

The Council, acting in accordance with the procedure referred to in Article 251 and after consulting the Economic and Social Committee, shall adopt the provisions referred to in Articles 167, 168 and 169. Adoption of the supplementary programmes shall require the agreement of the Member States concerned.

***


Original Lisbon Treaty (ToL)

Article 2, point 141 amended Article 170 TEC and point 142 inserted a new Article 172a (OJEU 17.12.2007 C 306/86).

In other words, Article 172 TEC underwent no specific amendment.




***


Renumbering the Treaty of Lisbon (ToL)

(The Table of equivalences of the original Treaty of Lisbon tells us that Title XVIII first became Title XVIII with the addition of space in the TFEU (ToL), and later renumbered Title XIX Research and technological development and space in the consolidated version.)

Article 172 TEC initially became Article 172 TFEU (ToL) before the renumbering of the treaty made it into Article 188 TFEU in the consolidated version of the Lisbon Treaty (OJEU 17.12.2007 C 306/217–218).


***


Lisbon Treaty consolidated

Article 188 TFEU

The legislative procedures remain the same, although the first paragraph no longer refers to qualified majority voting and the second paragraph uses the name ordinary legislative procedure (horizontal amendments). The Article was renumbered as were the provisions referred to. Article 188 TFEU appears like this in the consolidated version of the Treaty of Lisbon (OJEU 9.5.2008 C 115/131):

(TITLE XIX
RESEARCH AND TECHNOLOGICAL DEVELOPMENT AND SPACE)


Article 188 TFEU
(ex Article 172 TEC)

The Council, on a proposal from the Commission and after consulting the European Parliament and the Economic and Social Committee, shall adopt the provisions referred to in Article 187.

The European Parliament and the Council, acting in accordance with the ordinary legislative procedure and after consulting the Economic and Social Committee, shall adopt the provisions referred to in Articles 183, 184 and 185. Adoption of the supplementary programmes shall require the agreement of the Member States concerned.



***

Joint undertakings and other research structures

Here are some proposals and legislative acts pertaining to Article 172(1) TEC on joint undertakings and other structures.



Research infrastructures proposal

The Commission has made the Proposal for a Council Regulation on the Community legal framework for a European Research Infrastructure (ERI), Brussels, 25.7.2008 COM(2008) 467 final.

In the Commission’s view, the legal framework for a European Research Infrastructure is designed to facilitate the joint establishment and operation of research facilities of European interest between several Member States and countries associated to the Community R&D Framework Programme. It is being developed in response to requests from the Member States and the scientific community, because the available national and international legal forms are not fully adequate.

The legal base of the Regulation would be Article 171 TEC. The proposed Article 1 of the Regulation presents the intended scope:


Article 1
Subject-matter and scope

1. This Regulation establishes a framework laying down the requirements and procedures for and the effects of setting up a European Research Infrastructure (hereinafter referred to as "ERI").

2. It shall apply to research infrastructures of pan-European interest.


The Commission’s ERI proposal is available here:

http://ec.europa.eu/research/press/2008/pdf/com_2008_467_en.pdf


***


Joint Technology Initiatives (JTIs)

One of the concepts in the area of joint undertakings is Joint Technology Initiatives (JTIs), with the following description given on one of the Commission’s web pages:

JTIs aim to achieve greater strategic focus by supporting common ambitious research agendas in areas that are crucial for competitiveness and growth, assembling and coordinating at European level a critical mass of research. They therefore draw on all sources of R&D investment - public or private - and couple research tightly to innovation.


Source: Joint Technology Initiatives (web page):

http://ec.europa.eu/information_society/tl/research/priv_invest/jti/index_en.htm


Cordis offers more comprehensive information about Joint Technology Initiatives, under the Seventh Research Framework Programme (FP7), and subtitled Public-Private Partnerships in EU Research:


http://cordis.europa.eu/fp7/jtis/



***

Galileo

The first European Community joint research undertaking set up pursuant to Article 171 TEC, was Galileo.

Council Regulation (EC) No 876/2002 of 21 May 2002 setting up the Galileo Joint Undertaking
(originally published OJ 28.5.2002 L 138/1). The consolidated Regulation is available here:

http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CONSLEG:2002R0876:20061222:EN:PDF


***

New joint undertakings


Since the beginning of the Seventh Framework Programme for Research and Technological Development (FP7) the establishment of new joint undertakings has boomed as a promising sign of intensifying EU research efforts.


Clean Sky Joint Undertaking

Council Regulation (EC) No 71/2007 of 20 December 2007 setting up the Clean Sky Joint Undertaking, published OJEU 4.2.2008 L 30/1 (but later corrigenda), is available here:

http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2008:030:0001:0020:EN:PDF


Introducing the concept Joint Technology Initiative (JTI), the Regulation sets up a joint undertaking within the meaning of Article 171 TEC:

Article 1
Setting up of a Joint Undertaking

1. For the implementation of the Joint Technology Initiative on Clean Sky, a Joint Undertaking within the meaning of Article 171 of the Treaty is hereby set up for the period up to 31 December 2017 (hereinafter referred to as the Clean Sky Joint Undertaking).

2. Its seat shall be located in Brussels, Belgium.


***

ENIAC

Council Regulation (EC) No 72/2008 of 20 December 2007 setting up the ENIAC Joint Undertaking, originally published OJEU 4.2.2008 L 30/21. The consolidated version is available here:

http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CONSLEG:2008R0072:20080207:EN:PDF

The joint undertaking was based on Articles 171 and 172 TEC:

Article 1
Establishment of a Joint Undertaking

1. For the implementation of the Joint Technology Initiative (hereinafter JTI) on nanoelectronics, a Joint Undertaking within the meaning of Article 171 of the Treaty (hereinafter the ENIAC Joint Undertaking) is hereby set up for a period up to 31 December 2017.

2. The seat of the ENIAC Joint Undertaking shall be located in Brussels, Belgium.


***

IMI

Council Regulation (EC) No 73/2008 of 20 December 2007 setting up the Joint Undertaking for the implementation of the Joint Technology Initiative on Innovative Medicines, published OJEU 4.2.2008 L 30/38, is accessible here:

http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2008:030:0038:0051:EN:PDF


The IMI Regulation was based on Articles 171 and 172 TEC:

Article 1
Establishment of a Joint Undertaking

1. A Joint Undertaking for the implementation of the Joint Technology Initiative on Innovative Medicines is hereby set up for a period up to 31 December 2017 (hereinafter referred to as IMI Joint Undertaking).

2. The seat of the IMI Joint Undertaking shall be located in Brussels, Belgium.


***

ARTEMIS

Council Regulation (EC) No 74/2008 of 20 December 2007 on the establishment of the ‘ARTEMIS Joint Undertaking’ to implement a Joint Technology Initiative in Embedded Computing Systems, originally published =JEU4.2.2008 L 30/52, but the consolidated version is available here:

http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CONSLEG:2008R0074:20080207:EN:PDF

The Artemis Regulation was based on Articles 171 and 172 TEC:

Article 1
Establishment of a Joint Undertaking

1. For the implementation of the Joint Technology Initiative (JTI) on Embedded Computing Systems, a Joint Undertaking within the meaning of Article 171 of the Treaty, hereinafter referred to as the ‘ARTEMIS Joint Undertaking’, is hereby set up for a period up to 31 December 2017.

2. The seat of the ARTEMIS Joint Undertaking shall be located in Brussels, Belgium.


***

Fuel Cells and Hydrogen (FCH)

Council Regulation (EC) No 521/2008 of 30 May 2008 setting up the Fuel Cells and Hydrogen Joint Undertaking, published OJEU 12.6.2008 L 153/1, is available here:

http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2008:153:0001:0020:EN:PDF

The Fuel Cells and Hydrogen Joint Undertaking Regulation was based on Articles 171 and 172 TEC:

Article 1
Establishment

1. For the implementation of the Joint Technology Initiative (hereinafter referred to as JTI) on Fuel Cells and Hydrogen, a Joint Undertaking within the meaning of Article 171 of the Treaty (hereinafter referred to as the FCH Joint Undertaking) is hereby set up for a period up to 31 December 2017.

2. The seat of the FCH Joint Undertaking shall be located in Brussels, Belgium.


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Implementation, supplementary and participation


Here we look at some of the legal acts adopted according to the second paragraph of Article 172 TEC: implementing rules for the participation in the multiannual framework programme and the dissemination of research results (Article 167), supplementary research programmes, especially dissemination of knowledge and access by other member states (Article 168) and participation in research and development programmes undertaken by several member states (Article 169).


Rules for participation and dissemination
The rules for participation mentioned in the first indent and for dissemination of research results mentioned in the second indent of Article 167 TEC (and Article 183 TFEU) are set out in Regulation (EC) No 1906/2006 of the European Parliament and of the Council of 18 December 2006 laying down the rules for the participation of undertakings, research centres and universities in actions under the Seventh Framework Programme and for the dissemination of research results (2007-2013), published OJEU 30.12.2006 L 391/1, available here:

http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2006:391:0001:0018:EN:PDF


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Supplementary research programmes

In an earlier post we found supplementary programmes mentioned as an option for the future.


***

Participation (joint implementation)

CORDIS (the Community Research and Development Information Service) has established a portal dedicated to Article 169 initiatives:

http://cordis.europa.eu/fp7/art169/home_en.html

The web pages seem to contain ‘everything’ you need to know about joint implementation.



Ralf Grahn

EU Treaty of Lisbon: Separate powers and rules

The European Community (EC) is merged into the European Union (EU), but the separate powers and procedures remain for the ‘Community’ areas and the intergovernmental common foreign and security policy (CFSP).

We look at how these areas are kept separate in the Lisbon Treaty, and glimpse at the different categories of competence and at the role of the Court of Justice in upholding these separate competences and procedures.

***

In the Treaty of Lisbon the intergovernmental conference (IGC 2007) decided to amend the Treaty on European Union (TEU) in the following way (OJ 17.12.2007 C 306/31):

45) Articles 26 and 27 shall be repealed. The following Articles 25a and 25b shall be inserted, with Article 25b replacing Article 47:

---

Article 25b

The implementation of the common foreign and security policy shall not affect the application of the procedures and the extent of the powers of the institutions laid down by the Treaties for the exercise of the Union competences referred to in Articles 2 B to 2 E of the Treaty on the Functioning of the European Union.

Similarly, the implementation of the policies listed in those Articles shall not affect the application of the procedures and the extent of the powers of the institutions laid down by the Treaties for the exercise of the Union competences under this Chapter.

***

Article 25b TEU reminds us of Article 46(f) TEU and it replaces Article 47 TEU. We turn to the existing Treaty on European Union (latest consolidated version of the Treaty on European Union and of the Treaty establishing the European Community in OJ 29.12.2006 C 321 E/33 and 34):

Article 46(f)

The provisions of the Treaty establishing the European Community, the Treaty establishing the European Coal and Steel Community and the Treaty establishing the European Atomic Energy Community concerning the powers of the Court of Justice of the European Communities and the exercise of those powers shall apply only to the following provisions of this Treaty:

---

(f) Articles 46 to 53.

Article 47

Subject to the provisions amending the Treaty establishing the European Economic Community
with a view to establishing the European Community, the Treaty establishing the European Coal
and Steel Community and the Treaty establishing the European Atomic Energy Community, and to these final provisions, nothing in this Treaty shall affect the Treaties establishing the European Communities or the subsequent Treaties and Acts modifying or supplementing them.

***

We look at the powers referred to in the Treaty on the Functioning of the European Union (TFEU) Articles 2 B to 2 E (OJ 17.12.2007 C 306/45 to 47) in Title 1 Categories and areas of Union competence, where Article 2 A has first presented the different forms of competence: exclusive competence, shared competence, coordination, CFSP etc.

The following Articles then indicate in which areas the different competences (powers) apply:

Article 2 B TFEU

1. The Union shall have exclusive competence in the following areas:

(a) customs union;

(b) the establishing of the competition rules necessary for the functioning of the internal
market;

(c) monetary policy for the Member States whose currency is the euro;

(d) the conservation of marine biological resources under the common fisheries policy;

(e) common commercial policy.

2. The Union shall also have exclusive competence for the conclusion of an international
agreement when its conclusion is provided for in a legislative act of the Union or is necessary
to enable the Union to exercise its internal competence, or insofar as its conclusion may affect
common rules or alter their scope.


Article 2 C TFEU

1. The Union shall share competence with the Member States where the Treaties confer on
it a competence which does not relate to the areas referred to in Articles 2 B and 2 E.

2. Shared competence between the Union and the Member States applies in the following
principal areas:

(a) internal market;

(b) social policy, for the aspects defined in this Treaty;

(c) economic, social and territorial cohesion;

(d) agriculture and fisheries, excluding the conservation of marine biological resources;

(e) environment;

(f) consumer protection;

(g) transport;

(h) trans-European networks;

(i) energy;

(j) area of freedom, security and justice;

(k) common safety concerns in public health matters, for the aspects defined in this Treaty.

3. In the areas of research, technological development and space, the Union shall have
competence to carry out activities, in particular to define and implement programmes;
however, the exercise of that competence shall not result in Member States being prevented
from exercising theirs.

4. In the areas of development cooperation and humanitarian aid, the Union shall have
competence to carry out activities and conduct a common policy; however, the exercise of that
competence shall not result in Member States being prevented from exercising theirs.


Article 2 D TFEU

1. The Member States shall coordinate their economic policies within the Union. To this
end, the Council shall adopt measures, in particular broad guidelines for these policies.

Specific provisions shall apply to those Member States whose currency is the euro.

2. The Union shall take measures to ensure coordination of the employment policies of
the Member States, in particular by defining guidelines for these policies.

3. The Union may take initiatives to ensure coordination of Member States' social policies.


Article 2 E TFEU

The Union shall have competence to carry out actions to support, coordinate or supplement
the actions of the Member States. The areas of such action shall, at European level, be:

(a) protection and improvement of human health;

(b) industry;

(c) culture;

(d) tourism;

(e) education, vocational training, youth and sport;

(f) civil protection;

(g) administrative cooperation.

***

We take a look at the preceding drafting exercises. First, the Convention proposed an Article III-209 in the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/68):

Article III-209

The implementation of the common foreign and security policy shall not affect the competences listed in Articles I-12 to I-14 and I-16. Likewise, the implementation of the policies listed in
those articles shall not affect the competence referred to in Article I-15.

The Court of Justice shall have jurisdiction to monitor compliance with this Article.

***

Second, we compare with the Treaty establishing a Constitution for Europe, where the corresponding provision is Article III-308 (OJ 16.12.2004 C 310/138):

Article III-308

The implementation of the common foreign and security policy shall not affect the application of the procedures and the extent of the powers of the institutions laid down by the Constitution for the exercise of the Union competences referred to in Articles I-13 to I-15 and I-17.

Similarly, the implementation of the policies listed in those Articles shall not affect the application of the procedures and the extent of the powers of the institutions laid down by the Constitution for the exercise of the Union competences under this Chapter.

***

The existing Article 47 TEU says, in effect, that the establishment of the European Union (EU) would not encroach upon the Community powers and procedures (TEC).

The Convention and the Constitutional Treaty drafted their corresponding Articles to point both ways: to ‘Community’ and CFSP powers and procedures, respectively. The proposed Article 25b TEU of the Lisbon Treaty and Article III-308 of the Constitutional Treaty are highly similar.

The present pillar structure of the European Union consists of the first or Community pillar (TEC), and the two intergovernmental pillars (TEU), the second or foreign and security policy (CFSP) and the third, originally justice and home affairs, now the remaining intergovernmental provisions on police and judicial cooperation in criminal matters.

The Lisbon Treaty abolishes the pillar structure and the European Community (EC) by uniting everything under the European Union (EU), but the ‘Community’ powers and procedures and the intergovernmental character of the CFSP and the CSDP remain separate.

This can be seen in the new Article 240a TFEU of the Reform Treaty, where the Court of Justice lacks jurisdiction in CFSP issues, but has jurisdiction concerning the boundaries between ‘Community’ and CFSP competence:

Article 240a TFEU

The Court of Justice of the European Union shall not have jurisdiction with respect to the
provisions relating to the common foreign and security policy nor with respect to acts adopted
on the basis of those provisions.

However, the Court shall have jurisdiction to monitor compliance with Article 25b of the
Treaty on European Union and to rule on proceedings, brought in accordance with the
conditions laid down in the fourth paragraph of Article 230 of this Treaty, reviewing the
legality of decisions providing for restrictive measures against natural or legal persons adopted
by the Council on the basis of Chapter 2 of Title V of the Treaty on European Union.

***

Financial provisions for the CFSP are next in line.


Ralf Grahn