State of the Union: relations with national Parliaments

Visits to national parliaments is the next section in the State of the Union 2017 brochure (108 pages), consisting of a one page presentation of how the 657 visits to national parliaments since the beginning of the Commission’s mandate on 1 November 2014 have been distributed across the EU member states (page 95).

This is only the tip of the iceberg. We can go to the EU treaties and annual reports for insights into the relations between the European Commission and national parliaments, including the principles of subsidiarity and proportionality, not forgetting the cost of non-Europe.

Role of national parliaments   

We can go to the consolidated treaties (2016; link to all language versions; here in English) for Protocol (No 1) on the role of national parliaments in the European Union (page 203), annexed to the Treaty on European Union (TEU), to the Treaty on the Functioning of the European Union (TFEU) and to the Treaty establishing the European Atomic Energy Community (Euratom Treaty).

The purpose is to encourage greater involvement of national parliaments in the activities of the European Union and to enhance their ability to express their views on draft legislative acts of the Union as well as on other matters which may be of particular interest to them.

In practice, national parliaments shall receive plans and proposals directly, at the same time as the European Parliament and the Council of the European Union. A national parliament can send to the presidents of the European Parliament, the Council and the Commission a reasoned opinion on whether a draft legislative act complies with the principle of subsidiarity. The national parliaments have eight weeks to react.  

Just in passing, Protocol (No 1) also contains provisions on interparliamentary cooperation between the European Parliament and national parliaments. There is a reference to the conference of Parliamentary Committees for Union Affairs COSAC.

Subsidiarity and proportionality

Article 5 TEU lays down the principles of attributed powers (conferral), subsidiarity and proportionality (page 18):

Article 5

(ex Article 5 TEC)

1. The limits of Union competences are governed by the principle of conferral. The use of Union competences is governed by the principles of subsidiarity and proportionality.

2. Under the principle of conferral, the Union shall act only within the limits of the competences conferred upon it by the Member States in the Treaties to attain the objectives set out therein. Competences not conferred upon the Union in the Treaties remain with the Member States.

3. Under the principle of subsidiarity, in areas which do not fall within its exclusive competence, the Union shall act only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States, either at central level or at regional and local level, but can rather, by reason of the scale or effects of the proposed action, be better achieved at Union level.

The institutions of the Union shall apply the principle of subsidiarity as laid down in the Protocol on the application of the principles of subsidiarity and proportionality. National Parliaments ensure compliance with the principle of subsidiarity in accordance with the procedure set out in that Protocol.

4. Under the principle of proportionality, the content and form of Union action shall not exceed what is necessary to achieve the objectives of the Treaties.

The institutions of the Union shall apply the principle of proportionality as laid down in the Protocol on the application of the principles of subsidiarity and proportionality.

Protocol No 2 on the application of the principles of subsidiarity and proportionality establishes the conditions for the application of the principles of subsidiarity and proportionality, and outlines the system for monitoring the application of those principles (page 206).

Annual reports

Those who want to look at the practical side can turn to the annual reports, which illustrate some of the most hotly debated EU legislative issues in recent times:

Annual report 2016 on relations between the European Commission and national parliaments; Brussels, 30.6.2017 COM(2017) 601 final

Annexes to the Annual report 2016 on relations between the European Commission and national parliaments; Brussels, 30.6.2017 COM(2017) 601 final ANNEXES 1 to 3  

The annexes offer us the number of opinions and reasoned opinions from each national parliamentary chamber; the Commission documents causing these opinions (with the communication on the Commission Work Programme CWP 2016 on top), and; the number of opinions received per lead Commission service (with DG Migration and Home Affairs on top).

Mandatory according to Article 9 of Protocol (No 2), the more specific sister publication on subsidiarity and proportionality was published at the same time:

Annual Report 2016 on Subsidiarity and Proportionality; Brussels, 30.6.2017 COM(2017) 600 final

The Commission refers to its reinforced Better Regulation agenda (page 2):

...which includes strengthened guidance on how to assess subsidiarity and proportionality in the policymaking process and new opportunities for citizens and stakeholders to provide feedback. The Commission is also pursuing its practice of evaluating existing policy frameworks, before coming forward with legislative revisions. These evaluations include assessments of whether existing policy measures are still 'fit for purpose' and to what extent they comply with the principles of subsidiarity and proportionality. Better regulation principles and instruments, including subsidiarity and proportionality assessments, are applied at various stages of the decision-making process, taking account of relevant analysis and input provided by stakeholders.

The report deals with principles and practical experiences relating to subsidiarity analysis, proportionality analysis, ex ante impact assessments, as well as ex post evaluations and fitness checks.

The number of reasoned opinions from national parliaments rose dramatically (page 7):

In 2016, the Commission received 65 reasoned opinions from national Parliaments on the principle of subsidiarity. This was 713% more than the eight reasoned opinions received in 2015. The number of reasoned opinions received in 2016 is the third highest in a calendar year since the subsidiarity control mechanism was introduced by the Lisbon Treaty in 2009 (after 84 in 2012 and 70 in 2013). The reasoned opinions received in 2016 also accounted for a higher proportion (10.5%) of the total number of opinions received by the Commission in that year under the political dialogue (620). It should be noted that the total number of opinions submitted by national Parliaments under the political dialogue also increased significantly in 2016.

The 65 reasoned opinions received in 2016 included 38 opinions related to four Commission proposals. The proposal giving rise to most reasoned opinions was the proposal for a review of the Directive on the posting of workers, which generated 14 reasoned opinions, thereby triggering the procedure under Article 7(2) of Protocol No 2 to the Treaties (the so-called "yellow card" procedure). The proposal for a review of the Dublin Regulation received eight reasoned opinions and the two proposals establishing the Common Consolidated Corporate Tax Base received eight reasoned opinions. Other proposals received between one and four reasoned opinions. The cases on which the Commission received the highest number of reasoned opinions are described in more detail in Chapter 3.

The report explains the role of the European Parliament and the Council with regard to the application of the principles of subsidiarity and proportionality (from page 8). However, we should not forget the work of the European Parliamentary Research Service EPRS on the European added value of new EU legislation and the cost of the absence of action at EU level (cost of non-Europe). On page 9:

In 2016, the European Parliament produced 36 Initial Appraisals, one Impact Assessment of substantive parliamentary amendments and 14 ex-post European Impact Assessments. In addition, seven reports on the cost of non-Europe and four European Added Value Assessments were completed. The European Parliamentary Research Service also scrutinises the implementation and effectiveness of existing EU legislation whenever the European Commission announces in its annual work programme that this legislation will be amended. In 2016, some 28 such "Implementation Appraisals" were produced.

The role of the Committee of the Regions and regional legislative assemblies is described from page 10, with the Court of Justice of the European Union (CJEU) from page 12. The key Commission proposals leading to expressions of concerns were discussed from page 13 (the posting of workers; the Dublin Regulation review; the Common Consolidated Corporate Tax Base).   

The annex lists the Commission documents on which the Commission received reasoned opinions regarding compliance with the subsidiarity principle from national Parliaments in 2016:

Annex to the Annual Report 2016 on Subsidiarity and Proportionality; Brussels, 30.6.2017 COM(2017) 600 final ANNEX 1

State of the Union 2017

The European Commission’s State of the Union 2017 web page is still only in English and it has received no visible updates since yesterday morning.

Ralf Grahn

State of the Union: better regulation and enforcement

The latest updates on the  European Commission’s State of the Union 2017 web page are the new industrial policy strategy, press release IP/17/3185, cybersecurity, press release IP/17/3193, and the flow of non-personal data in the EU, press release IP/17/3190.

I have presented roughly half of the 108-page State of the Union 2017 brochure in earlier blog entries. Now we turn to better regulation and enforcement.

Better regulation

The substance of the section on better regulation is on a single text page (63), but it carries a lot of punch.

The Commission’s figures demonstrate that it has been serious about being big on big things and small on small things, which tallies with my experience of the strategic way the Juncker Commission works, beginning with the political guidelines, which said:

My agenda will focus on ten policy areas. My emphasis will be on concrete results in these ten areas. Beyond that, I will leave other policy areas to the Member States where they are more legitimate and better equipped to give effective policy responses at national, regional or local level, in line with the principles of subsidiarity and proportionality. I want a European Union that is bigger and more ambitious on big things, and smaller and more modest on small things.

I am just going to provide a few links to readers, who want to go beyond the SOTEU 2017 brochure.

Sorted under the Democratic change priority, the Better regulation webpage offers background information and links, although the page is in need of an update, for instance the Commission Work Programme (CWP) 2017, soon to be followed by the CWP 2018. (It would be helpful if the Commission priority pages and other web pages provided the date of the latest update.)

Here is an introduction to the Regulatory Fitness and Performance (REFIT) programme, as a part of the Commission’s better regulation agenda and integrated into the CWP process.

We remember the Interinstitutional Agreement on Better Law-Making (13 April 2016); here an IIA explanation.

On 13 December 2016 the European Parliament, the Council and the Commission signed a Joint Declaration on the EU’s legislative priorities for 2017, and the Parliament’s Legislative train schedule - last updated to the end of June - keeps track of legislative proposals.

Here is an introduction to impact assessments in EU legislative processes and here to the Regulatory Scrutiny Board.  

Subsidiarity and Proportionality Task Force

From the state of the union address we remember president Juncker’s new opening:

Last but not least, I want our Union to have a stronger focus on things that matter, building on the work this Commission has already undertaken. We should not meddle in the everyday lives of European citizens by regulating every aspect. We should be big on the big things. We should not march in with a stream of new initiatives or seek ever growing competences. We should give back competences to Member States where it makes sense.

This is why this Commission has been big on big issues and small on the small ones, putting forward less than 25 new initiatives a year where previous Commissions proposed over 100. We have handed back powers where it makes more sense for national governments to deal with things. Thanks to the good work of Commissioner Vestager, we have delegated 90% of state aid decisions to the regional or local level.

To finish the work we started, I am setting up a Subsidiarity and Proportionality Task Force as of this month to take a very critical look at all policy areas to make sure we are only acting where the EU adds value. First Vice-President Frans Timmermans, who has a proven track record on better regulation, will head this Task Force. The Timmermans Task Force, which should include Members of this Parliament as well as Members of national Parliaments, should report back in a years’ time.  

Better enforcement

The European Union is, as president Juncker underlined, a community of law. Correct and timely transposition is crucial, as is effective application of EU law (page 66):

Better application of EU law is a priority of the Juncker Commission and a key part of the Better Regulation Agenda. The Commission restated its commitment to improving the application of EU law in a Communication of December 2016 which sets out a more strategic approach to its infringement policy. It announced that it would give priority to pursuing the most serious breaches of EU law affecting the interests of citizens and businesses. As of September 2017, 1,659 infringement cases have been opened by the Commission. This is a considerable increase from the previous years.

SOTEU brochure presentations   

Having come this far, we might as well remind ourselves what the remaining part of the State of the Union 2017 brochure promises to deal with:

The State of Public Opinion in the EU

Progress in the Economic Situation

Policy Implementation Report

The European Solidarity Corps: One Year on

Visits to national Parliaments

Citizens’ Dialogues

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

Future blog posts are going to look at these sections.

Ralf Grahn

Elect the Ghost MEPs, says the EP

In our blog post Shame on EU: Unelected MEPs (1 May 2010) we criticised the laxity of the (European) Council, when it decided, and the European Parliament’s Committee on Constitutional Affairs (AFCO) and the European Commission, when they meekly followed the three options, which allowed for the appointment of the 18 so called ghost members of the EP without universal and proportional suffrage.



However, the plenary setting on 6 May 2010 amended the text proposed in the AFCO report (A7-0115/2010).



The EP plenary (adopted resolution PT_TA(2010)0148) dropped the proposed point 5, which acquiesced in the loophole devised by the heads of state or government to allow for appointed MEPs:

5. Believes, as regards the appointment of observers, that the spirit of the 1976 Act should likewise be observed as far as possible, but that if technical or political difficulties were to prove insurmountable, indirect election via national parliaments would be an acceptable option;

Further, the plenary of the European Parliament 6 May 2010 approved a more exact text on its intention to propose a new election procedure (new point 6).

The EP resolution then added the new point 7, which calls on national parliaments (which have to ratify the agreement by the IGC) to uphold the principle of universal suffrage. With this amendment the plenary of the European Parliament saved appearances, and if the national parliaments follow its lead, its honour to some extent. However, if elections are arranged belatedly, they are not proportional. Hence, the June 2009 elections should be used, in my humble opinion, according to objective criteria.



The adopted resolution reads as follows:

1. Takes the view that the proposed amendment of Protocol No 36 requested by the European Council stems directly from the new provisions of the Lisbon Treaty, and is therefore a transitional solution that will enable all those Member States entitled to additional seats to designate the MEPs concerned; agrees that an additional 18 MEPs should be elected to Parliament for the remainder of the 2009-2014 term; insists, however, that all 18 should take up their seats in Parliament at the same time in order not to upset the balance of nationalities in the House; urges Member States to complete their election procedures in a pragmatic way as soon as possible;

2. Regrets that the Council did not adopt the necessary measures in time to enable the additional MEPs to take up their seats as soon as the Lisbon Treaty entered into force, and that one of the solutions envisaged in the context of the amendment sought is not in keeping with the spirit of the 1976 act, which was designed to ensure that MEPs are elected directly, rather than indirectly through an election within a national parliament;

3. Agrees, however, to the convening of an intergovernmental conference, provided that it is confined to the specific issue of the adoption of measures concerning the composition of the European Parliament for the rest of the 2009-2014 parliamentary term, and on the understanding that these transitional measures are exceptional ones connected with the specific circumstances of the ratification of the Lisbon Treaty and can in no way set a precedent for the future;

4. Recalls that, in the interval between the approval of the amendment of Protocol No 36 and its entry into force, the additional MEPs will be able to sit in the European Parliament as observers under Rule 11(4) of Parliament's Rules of Procedure;

5. Recalls also that the European Council will have to take a decision establishing the composition of the European Parliament by the end of the current parliamentary term in any case, and that Parliament will initiate such a decision under Article 14(2) of the EU Treaty;

6. Notifies the European Council that it intends shortly to draw up proposals to lay down the provisions necessary for the election of its Members by direct universal suffrage in accordance with a uniform procedure in all Member States and in accordance with principles common to all Member States, and that Parliament will initiate such electoral reform under Article 48(2) of the Treaty on European Union and Article 223 of the Treaty on the Functioning of the European Union; insists, further, that a Convention devoted to the reform of the European Parliament will be called to prepare the revision of the Treaties;

7. Calls on national parliaments to act to uphold the long-standing primary law of the European Union whereby Members of the European Parliament are directly elected by universal suffrage in a free and secret ballot;

8. Instructs its President to forward this resolution to the European Council, the Council, the Commission and the national parliaments.

The European Council for inventing appointed MEPs and the European Commission for spinelessly acquiescing still deserve public scorn and ridicule.




Ralf Grahn

European arrest warrant: EU & UK

In the report Justice issues in Europe, the UK House of Commons Justice Committee discusses matters relevant to the development of the European Union’s area of freedom, security and justice (FSJ).

This timely report is interesting both generally and from a British point of view.

In this blog post we look at the European arrest warrant.





Stockholm Programme


In the European Union’s 2010─2014 Stockholm Programme – An open and secure Europe serving and protecting citizens, the European Council invited the European Commission to (document 5731/10; page 40):

… explore the results of the evaluation of the European Arrest Warrant, and, where appropriate, make proposals to increase efficiency and legal protection for individuals in the process of surrender, by adopting a step-by-step approach to other instruments on mutual recognition; ...

Stockholm Programme Action Plan


Since then, the proposed Action Plan for the implementation of the Stockholm Programme has been published in 21 official EU languages:




Delivering an area of freedom, security and justice for Europe's citizens - Action Plan Implementing the Stockholm Programme; Brussels, 20.4.2010; COM(2010) 171 final


(The Justice and Home Affairs (JHA) Council has issued its first conclusions on the Action Programme (document 8920/10).)


In the Action Plan, under the headline Furthering the implementation of mutual recognition (in the area of criminal law), the Commission has promised to report on the implementation of the Framework Decision 2002/584/JHA on the European Arrest Warrant in 2010 and to contribute with “appropriate follow-up” in 2014.



European arrest warrant



For an overview of the European Arrest Warrant, you can consult the relevant summary of EU legislation on Europa (latest update 8 January 2010).




You can also read the Wikipedia encyclopedia entry European Arrest Warrant, including critical viewpoints (last update 29 April 2010).



Here is the consolidated version (28 March 2009) of:



COUNCIL FRAMEWORK DECISION 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States

The provisions defining the European arrest warrant and setting out its scope:

CHAPTER 1
GENERAL PRINCIPLES



Article 1
Definition of the European arrest warrant and obligation to execute it


1. The European arrest warrant is a judicial decision issued by a Member State with a view to the arrest and surrender by another Member State of a requested person, for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order.

2. Member States shall execute any European arrest warrant on the basis of the principle of mutual recognition and in accordance with the provisions of this Framework Decision.

3. This Framework Decision shall not have the effect of modifying the obligation to respect fundamental rights and fundamental legal principles as enshrined in Article 6 of the Treaty on European Union.



Article 2
Scope of the European arrest warrant


1. A European arrest warrant may be issued for acts punishable by the law of the issuing Member State by a custodial sentence or a detention order for a maximum period of at least 12 months or, where a sentence has been passed or a detention order has been made, for sentences of at least four months.

2. The following offences, if they are punishable in the issuing Member State by a custodial sentence or a detention order for a maximum period of at least three years and as they are defined by the law of the issuing Member State, shall, under the terms of this Framework Decision and without verification of the double criminality of the act, give rise to surrender pursuant to a European arrest warrant:

— participation in a criminal organisation,
— terrorism,
— trafficking in human beings,
— sexual exploitation of children and child pornography,
— illicit trafficking in narcotic drugs and psychotropic substances,
— illicit trafficking in weapons, munitions and explosives,
— corruption,
— fraud, including that affecting the financial interests of the European Communities within the meaning of the Convention of 26 July 1995 on the protection of the European Communities' financial interests,
— laundering of the proceeds of crime,
— counterfeiting currency, including of the euro,
— computer-related crime,
— environmental crime, including illicit trafficking in endangered animal species and in endangered plant species and varieties,
— facilitation of unauthorised entry and residence,
— murder, grievous bodily injury,
— illicit trade in human organs and tissue,
— kidnapping, illegal restraint and hostage-taking,
— racism and xenophobia,
— organised or armed robbery,
— illicit trafficking in cultural goods, including antiques and works of art,
— swindling,
— racketeering and extortion,
— counterfeiting and piracy of products,
— forgery of administrative documents and trafficking therein,
— forgery of means of payment,
— illicit trafficking in hormonal substances and other growth promoters,
— illicit trafficking in nuclear or radioactive materials,
— trafficking in stolen vehicles,
— rape,
— arson,
— crimes within the jurisdiction of the International Criminal Court,
— unlawful seizure of aircraft/ships,
— sabotage.

3. The Council may decide at any time, acting unanimously after consultation of the European Parliament under the conditions laid down in Article 39(1) of the Treaty on European Union (TEU), to add other categories of offence to the list contained in paragraph 2. The Council shall examine, in the light of the report submitted by the Commission pursuant to Article 34(3), whether the list should be extended or amended.

4. For offences other than those covered by paragraph 2, surrender may be subject to the condition that the acts for which the European arrest warrant has been issued constitute an offence under the law of the executing Member State, whatever the constituent elements or however it is described.

House of Commons Justice Committee


One of the relatively rare assessments of Justice and Home Affairs (JHA) in the European Union published after the Stockholm Programme and before the adoption of the implementing Action Plan is:




UK House of Commons Justice Committee: Justice issues in Europe (HC 162-I; published 6 April 2010; 60 pages)



On page 19 the Committee noted that according to the Ministry of Justice, the European arrest warrant had:

• transformed extradition arrangements between EU member states
• played an important role in the UK’s fight against international and trans-national criminality
• prevented countries from refusing to surrender fugitives
• reduced the time taken to surrender fugitives from an average of 18 months under previous extradition arrangements to around 50 days, and
• enabled the UK to extradite over 1000 fugitives to other EU member states (since introduction) and, in 2008, nearly 100 wanted persons were surrendered back to the UK to face criminal proceedings.

Some problematic questions have surfaced as shown by the cases mentioned in Box 2 (pages 21 and 22).


After a discussion of difficulties with regard to individuals’ rights, the possible need for a proportionality test and potential means to remedy application problems, the Justice Committee concluded (on pages 24 to 25; point 50):

50. It is unfortunate that the successful use of the European arrest warrant, and the reduced time taken to process intra-EU extraditions, has been overshadowed by perceived injustices in individual cases. We welcome the conclusions of the evaluation of the warrant, adopted by the Council in June 2009, and the subsequent progress that has been made. However, we believe that the time it takes to review and reform such instruments undermines the mutual trust approach. Legislation should be used only as a last resort to resolving the issues over proportionality and we hope that the current approach bears fruit before the predicted growth in demand for European arrest warrants takes place.

The Committee then went on to discuss the threshold of inoperability regarding amending or accompanying EU measures, when the United Kingdom does not opt in. Regarding future developments under the Lisbon Treaty, matters were left suspended in thinnish air (page 26; point 54):

54. We are encouraged that neither the Minister, nor any of our witnesses, were able to provide a convincing example of a situation in which an existing measure would be rendered inoperable as a result of the UK’s decision not to participate. Nevertheless, we are concerned that the term “inoperable” is not defined in the protocol and that guidance is not available on its interpretation.

Ralf Grahn



P.S. If you have information about general or national publications assessing the EU’s justice and home affairs (JHA), the Stockholm Programme or the proposal for the implementing Action Plan, please feel free to share it with the readers of Grahnlaw, by posting a comment or by sending me an e-mail.

EU Lisbon Treaty: National parliaments (Sweden)

According to the Article 5 of the Treaty on European Union (TEU), as amended by the Treaty of Lisbon, the limits of EU competences are governed by the principle of conferral. The use of EU competences is governed by the principles of subsidiarity and proportionality.

Two protocols are relevant for the national parliaments:

• Protocol (No 1) on the role of national parliaments in the European Union; and
• Protocol (No 2) on the application of the principles of subsidiarity and proportionality.


According to Article 12 TEU, national parliaments contribute actively to the good functioning of the union (OJEU 9.5.2008 C 115):


Article 12 TEU

National Parliaments contribute actively to the good functioning of the Union:

(a) through being informed by the institutions of the Union and having draft legislative acts of the Union forwarded to them in accordance with the Protocol on the role of national Parliaments in the European Union;

(b) by seeing to it that the principle of subsidiarity is respected in accordance with the procedures provided for in the Protocol on the application of the principles of subsidiarity and proportionality;

(c) by taking part, within the framework of the area of freedom, security and justice, in the evaluation mechanisms for the implementation of the Union policies in that area, in accordance with Article 70 of the Treaty on the Functioning of the European Union, and through being involved in the political monitoring of Europol and the evaluation of Eurojust's activities in accordance with Articles 88 and 85 of that Treaty;

(d) by taking part in the revision procedures of the Treaties, in accordance with Article 48 of this Treaty;

(e) by being notified of applications for accession to the Union, in accordance with Article 49 of this Treaty;

(f) by taking part in the inter-parliamentary cooperation between national Parliaments and with the European Parliament, in accordance with the Protocol on the role of national Parliaments in the European Union.



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Preparation for the Lisbon Treaty

The national parliaments in 26 EU member states have approved the Treaty of Lisbon. Politically Ireland has secured that every member state keeps a member of the Commission, if the Lisbon Treaty enters into force, as well as assurances on sensitive issues.

On the basis of this “better deal”, the Irish government will propose a new referendum on the Lisbon Treaty, when the details of the guarantees have been finalised at the European Council 18 to 19 June 2009.

This blog has called for the EU institutions to prepare the needed acts and decisions for the entry into force of the Lisbon Treaty in an open, transparent and interactive manner. Only the European Parliament has acted openly, while the Council and the Commission have either failed to carry on preparatory work or they have kept EU citizens in the dark.

But the possible entry into force of the Lisbon Treaty has implications for national parliaments, as well.

If the Irish vote Yes in the second referendum and the other loose ends are tied up (formal ratification by the Czech Republic, Poland and Germany), the reform treaty enters into force quickly, at the beginning of the month following the deposition of the last ratification instrument. (In addition, approval or rejection in the Åland Islands affects the geographical scope of the reform treaty.)

At the national level, too, the needed preparatory measures have to be prepared in advance.


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Sweden

The Riksdag Board of the Swedish Parliament (riksdagsstyrelsen) has produced a legislative proposal on the application of the Treaty of Lisbon in the Swedish Parliament (Riksdag): Tillämpningen av Lissabonfördraget i riksdagen 2008/09:URF2.



All the consequences of the Lisbon Treaty are studied, including the anticipated increase in the work-load of the Parliament, and the 124 page study contains proposed amendments to the Riksdag Act (riksdagsordningen).

Without going into details here, the proposals are interesting for national parliaments in other EU member states and for researchers.



Ralf Grahn

European Council’s Progress Report (subsidiarity & proportionality)

According to Article 4 of the Treaty on European Union the European Council shall submit to the European Parliament a yearly written report on the progress achieved by the Union.

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Commission’s obligation

Protocol (No 30) on the application of the principles of subsidiarity and proportionality (1997) places on the Commission an obligation to report annually on the application of Article 5 TEC:

…submit an annual report to the European Council, the European Parliament and the Council on the application of Article 5 of the Treaty. This annual report shall also be sent to the Committee of the Regions and to the Economic and Social Committee.



Better Lawmaking 2007

The Commission has indeed reported, in the Report from the Commission on subsidiarity and proportionality (15th report on Better Lawmaking, 2007); Brussels, 26.9.2008 COM(2008) 586 final.


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European Council’s obligation

According to point 10 the same Protocol No 30:

10. The European Council shall take account of the Commission report referred to in the fourth indent of point 9 within the report on the progress achieved by the Union which it is required to submit to the European Parliament in accordance with Article 4 of the Treaty on European Union.


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General Affairs Council

Yesterday the Council (General Affairs and External Relations) took note of the European Council’s Draft report on the progress achieved by the European Union in 2008 (Council document 6788/1/09 REV1).

(The provisional General Affairs conclusions are found in Council document 7564/09.)

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Taking into account?

The Draft report is, as usual, meagre: 11 pages in all.

But how is the world going to know if or how the European Council takes into account the Commission’s report with regard to subsidiarity and proportionality?

The draft does not mention subsidiarity or proportionality or Article 5. The Commission’s report is not mentioned either.

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Treaty level obligations


Earlier we came to the (provisional) conclusion that the European Parliament shows no interest in the treaty obligation to discuss the Commission’s Annual General Report.

Today we wonder if the European Council acknowledges the report on subsidiarity and proportionality by osmosis.

Nit-picking or not, but why agree on legally binding obligations without even formally bowing to their existence?


Ralf Grahn

EU employment: European Community powers

Powers not conferred upon (attributed to) the European Community (EC) belong to the member states, and Community action shall anyway clear the tests of subsidiarity and proportionality, but in the case of the aim of a high level of employment the high contracting parties have decided to further underline their leading role by limiting the scope for EC action.

In this post we look at the basic structure of member state and European Community (European Union) competences concerning employment. Later posts can then turn to the concrete EC (EU) actions intended under the Title Employment in the existing Treaty establishing the European Community and the Treaty of Lisbon (Treaty on the Functioning of the European Union).



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Current TEC



The current Article 127 (ex Article 109p) of the Treaty establishing the European Community (TEC), under the Title VIII Employment, essentially reiterates both the general employment aim – a high level of employment – and the restricted role of the European Community (European Union) in achieving this objective following from other treaty provisions.

The European Community (EC) shall contribute to a high level of employment, but the employment policies are ‘owned’ by the member states.

The EC encourages cooperation between member states.

The EC – if necessary – complements member states’ action.

Not content with the expression of conferred or attributed powers and the principles of subsidiarity and necessity (proportionality) in Article 5 TEC, the high contracting parties remind us in Article 127(1) TEC that the competences of the member states shall be respected.

Article 127(2) TEC sets out the horizontal character of employment-related policies, although the objective of a high level of employment with a fairly weak expression shall be ‘taken into consideration’ when EC policies and activities are formulated and implemented.


The existing Article 126 TEC (in the latest consolidated version of the treaties, OJ 29.12.2006 C 321 E/102):

Article 127 TEC

1. The Community shall contribute to a high level of employment by encouraging cooperation between Member States and by supporting and, if necessary, complementing their action. In doing so, the competences of the Member States shall be respected.

2. The objective of a high level of employment shall be taken into consideration in the formulation and implementation of Community policies and activities.

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Original Lisbon Treaty


The Treaty of Lisbon (ToL) is still on its rocky road to possible entry into force, but in many instances it is the most up-to-date manifestation of what the member state governments want the treaties to say.

But the treaty reform process, at least since the Treaty of Nice, has been focused on so called institutional innovations. With a few notable exceptions, most areas of Community policy have only been updated and adjusted technically to the different reform treaty versions: the draft Constitution, the Constitutional Treaty and the Lisbon Treaty.

Thus, the changes to the Title on employment in the Lisbon Treaty are minimal. Article 2, point 111 deleted a few words from Article 125 TEC and the following point (112) concerned the common commercial policy.

Consequently, Article 126 TEC and the following ones underwent only horizontal or technical amendments (OJ 17.12.2007 C 306/79). In both paragraphs of Article 127 the ‘Community’ was replaced by the ‘Union’.



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Renumbering

The Table of equivalences of the original Treaty of Lisbon tells us that Title VIII Employment was to be renumbered Title IX and that Article 127 TEC and TFEU (ToL) was to be renumbered Article 147 TFEU in the consolidated version of the amending treaties (OJ 17.12.2007 C 306/214).


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Consolidated Lisbon Treaty



Article 147 of the Treaty on the Functioning of the European Union (TFEU) takes over the contents of the existing Article 127 TEC with the minimal change in terminology and the renumbering noted above.

As a consequence, the consolidated TFEU, published in the Official Journal of the European Union, OJ 9.5.2008 C 115/112, looks like this:

TITLE IX
EMPLOYMENT

Article 147 TFEU
(ex Article 127 TEC)

1. The Union shall contribute to a high level of employment by encouraging cooperation between Member States and by supporting and, if necessary, complementing their action. In doing so, the competences of the Member States shall be respected.

2. The objective of a high level of employment shall be taken into consideration in the formulation and implementation of Union policies and activities.

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Employment policy coordination

Readers interested in the practical side of the European employment strategy can start with the Introduction and the links offered by the European Commission’s DG Employment and Social Affairs:

http://ec.europa.eu/employment_social/employment_strategy/index_en.htm

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Integrated guidelines – Lisbon strategy for growth and jobs

The economic and employment guidelines (BEPGs and Employment Guidelines), the main focus of the spring European Council, have been integrated and subsumed under the relaunched Lisbon strategy for growth and jobs, but essentially adopted without change for a second three year period (2008–2010) last spring.

The first ten pages of the revised Presidency Conclusions of the European Council 13–14 March 2008, including the references to the National Reform Programmes and the Integrated Guidelines for Growth and Jobs, are available as a gateway to understanding the system and the state of play (Council document 7652/1/08 REV 1):

http://www.consilium.europa.eu/ueDocs/cms_Data/docs/pressData/en/ec/99410.pdf

(The following stage, for someone digging deeper, would be to look for formal adoption by the Council in its ECOFIN and EPSCO formations.)

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Employment in Europe 2008 Report

A wealth of information is contained in the Commission’s annual employment reports.

On 18 November 2008 the Commission published its twentieth annual employment report, Employment in Europe 2008 (292 pages), accessible through:

http://ec.europa.eu/social/main.jsp?langId=sv&catId=89&newsId=415

According to the Commission, the Employment in Europe 2008 Report addresses topics that are high on the European Union's employment policy agenda. It gives a comprehensive overview of the employment situation in the EU, as well as an analysis of key labour market issues, including immigration, post-enlargement intra-EU labour mobility, quality of work and the link between education and employment.

For a quick overview, read the Commission’s MEMO/08/719 Employment in Europe:

http://europa.eu/rapid/pressReleasesAction.do?reference=MEMO/08/719&format=HTML&aged=0&language=EN&guiLanguage=en

At the publication of the 2008 Employment in Europe Report the Commission highlighted labour immigration into the European Union and mobility of the workforce within the EU, so these questions were reflected in the media reports.



Ralf Grahn