Global and continental health threats have hardly diminished, although media attention has turned to the financial meltdown and the economic recession.
Originally, the European Economic Community (EEC) had no specific policy, but little by little common concerns have led to joint action within the European Union. The Treaty of Lisbon would confer some shared competence on the EU and clarify areas where the union supports, coordinates or supplements member states’ health policies.
***
Article 152 TEC
Global and continental health concerns are precariously balanced with traditional member states’ powers in the Title on public health.
The current Article 152 (ex Article 129) of the Treaty establishing the European Community (TEC), as published in the latest consolidated version of the treaties, OJ 29.12.2006 C 321 E/114–115:
TITLE XIII
PUBLIC HEALTH
Article 152 TEC
1. A high level of human health protection shall be ensured in the definition and implementation of all Community policies and activities.
Community action, which shall complement national policies, shall be directed towards improving public health, preventing human illness and diseases, and obviating sources of danger to human health. Such action shall cover the fight against the major health scourges, by promoting research into their causes, their transmission and their prevention, as well as health information and education.
The Community shall complement the Member States' action in reducing drugs-related health damage, including information and prevention.
2. The Community shall encourage cooperation between the Member States in the areas referred to in this Article and, if necessary, lend support to their action.
Member States shall, in liaison with the Commission, coordinate among themselves their policies and programmes in the areas referred to in paragraph 1. The Commission may, in close contact with the Member States, take any useful initiative to promote such coordination.
3. The Community and the Member States shall foster cooperation with third countries and the competent international organisations in the sphere of public health.
4. The Council, acting in accordance with the procedure referred to in Article 251 and after consulting the Economic and Social Committee and the Committee of the Regions, shall contribute to the achievement of the objectives referred to in this Article through adopting:
(a) measures setting high standards of quality and safety of organs and substances of human origin, blood and blood derivatives; these measures shall not prevent any Member State from maintaining or introducing more stringent protective measures;
(b) by way of derogation from Article 37, measures in the veterinary and phytosanitary fields which have as their direct objective the protection of public health;
(c) incentive measures designed to protect and improve human health, excluding any harmonisation of the laws and regulations of the Member States.
The Council, acting by a qualified majority on a proposal from the Commission, may also adopt recommendations for the purposes set out in this Article.
5. Community action in the field of public health shall fully respect the responsibilities of the Member States for the organisation and delivery of health services and medical care. In particular, measures referred to in paragraph 4(a) shall not affect national provisions on the donation or medical use of organs and blood.
***
Original Lisbon Treaty (ToL)
Although the Treaty of Lisbon is unreadable on its own, it spells out how the current treaties are amended.
Article 2, point 127 of the original Treaty of Lisbon (ToL) shows that Article 152 TEC underwent several specific amendments (OJ 17.12.2007 C 306/83–84):
PUBLIC HEALTH
127) Article 152 shall be amended as follows:
(a) in paragraph 1, second subparagraph, the word ‘human’ shall be replaced by ‘physical and
mental’ and, at the end of that subparagraph, the following shall be added: ‘, and monitoring, early warning of and combating serious cross-border threats to health’;
(b) in paragraph 2, at the end of the first subparagraph, the following sentence shall be added:
‘It shall in particular encourage cooperation between the Member States to improve the complementarity of their health services in cross-border areas.’;
(c) In paragraph 2, the following shall be added at the end of the second subparagraph: ‘, in particular initiatives aiming at the establishment of guidelines and indicators, the organisation of exchange of best practice, and the preparation of the necessary elements for periodic monitoring and evaluation. The European Parliament shall be kept fully informed.’;
(d) paragraph 4 shall be amended as follows:
(i) in the introductory wording to the first subparagraph, the following words shall be inserted at the beginning: ‘By way of derogation from Article 2 A(5) and Article 2 E(a) and in accordance with Article 2 C(2)(k)’ and the following shall be added at the end: ‘in order to meet common safety concerns:’;
(ii) in point (b), the words ‘by way of derogation from Article 37,’ shall be deleted;
(iii) the following new point (c) shall be inserted:
‘(c) measures setting high standards of quality and safety for medicinal products and devices for medical use.’;
(iv) the current point (c) shall be renumbered paragraph 5 and replaced by the following:
‘5. The European Parliament and the Council, acting in accordance with the ordinary legislative procedure and after consulting the Economic and Social Committee and the Committee of the Regions, may also adopt incentive measures designed to protect and improve human health and in particular to combat the major cross-border health scourges, measures concerning monitoring, early warning of and combating serious cross-border threats to health, and measures which have as their direct objective the protection of public health regarding tobacco and the abuse of alcohol, xcluding any harmonisation of the laws and regulations of the Member States.’;
(e) the second subparagraph of the current paragraph 4 shall become paragraph 6 and paragraph 5, renumbered 7, shall be replaced by the following:
‘7. Union action shall respect the responsibilities of the Member States for the definition of their health policy and for the organisation and delivery of health services and medical care. The responsibilities of the Member States shall include the management of health services and medical care and the allocation of the resources assigned to them. The measures referred to in paragraph 4(a) shall not affect national provisions on the donation or medical use of organs and blood.’.
***
Renumbering ToL
The Table of equivalences of the original Treaty of Lisbon tells us that Title XIII first became Title XIII in the TFEU (ToL), but renumbered Title XIV Public helath in the consolidated version.
Article 152 TEC initially became Article 152 TFEU (ToL) before the renumbering of the treaty made it into Article 168 TFEU in the consolidated version (OJ 17.12.2007 C 306/217).
***
Lisbon Treaty consolidated
After the explicit amendments, horizontal amendments and renumbering, Article 168 of the Treaty on the Functioning of the European Union (TFEU) appears as follows in the consolidated TFEU, published in the Official Journal of the European Union, OJ 9.5.2008 C 115/122–124:
TITLE XIV
PUBLIC HEALTH
Article 168 TFEU
(ex Article 152 TEC)
1. A high level of human health protection shall be ensured in the definition and implementation of all Union policies and activities.
Union action, which shall complement national policies, shall be directed towards improving public health, preventing physical and mental illness and diseases, and obviating sources of danger to physical and mental health. Such action shall cover the fight against the major health scourges, by promoting research into their causes, their transmission and their prevention, as well as health information and education, and monitoring, early warning of and combating serious cross-border threats to health.
The Union shall complement the Member States' action in reducing drugs-related health damage, including information and prevention.
2. The Union shall encourage cooperation between the Member States in the areas referred to in this Article and, if necessary, lend support to their action. It shall in particular encourage cooperation between the Member States to improve the complementarity of their health services in cross-border areas.
Member States shall, in liaison with the Commission, coordinate among themselves their policies and programmes in the areas referred to in paragraph 1. The Commission may, in close contact with the Member States, take any useful initiative to promote such coordination, in particular initiatives aiming at the establishment of guidelines and indicators, the organisation of exchange of best practice, and the preparation of the necessary elements for periodic monitoring and evaluation. The European Parliament shall be kept fully informed.
3. The Union and the Member States shall foster cooperation with third countries and the competent international organisations in the sphere of public health.
4. By way of derogation from Article 2(5) and Article 6(a) and in accordance with Article 4(2)(k) the European Parliament and the Council, acting in accordance with the ordinary legislative procedure and after consulting the Economic and Social Committee and the Committee of the Regions, shall contribute to the achievement of the objectives referred to in this Article through adopting in order to meet common safety concerns:
(a) measures setting high standards of quality and safety of organs and substances of human origin, blood and blood derivatives; these measures shall not prevent any Member State from maintaining or introducing more stringent protective measures;
(b) measures in the veterinary and phytosanitary fields which have as their direct objective the protection of public health;
(c) measures setting high standards of quality and safety for medicinal products and devices for medical use.
5. The European Parliament and the Council, acting in accordance with the ordinary legislative procedure and after consulting the Economic and Social Committee and the Committee of the Regions, may also adopt incentive measures designed to protect and improve human health and in particular to combat the major cross-border health scourges, measures concerning monitoring, early warning of and combating serious cross-border threats to health, and measures which have as their direct objective the protection of public health regarding tobacco and the abuse of alcohol, excluding any harmonisation of the laws and regulations of the Member States.
6. The Council, on a proposal from the Commission, may also adopt recommendations for the purposes set out in this Article.
7. Union action shall respect the responsibilities of the Member States for the definition of their health policy and for the organisation and delivery of health services and medical care. The responsibilities of the Member States shall include the management of health services and medical care and the allocation of the resources assigned to them. The measures referred to in paragraph 4(a) shall not affect national provisions on the donation or medical use of organs and blood.
***
Amendments
There has been a growing awareness of the cross-border nature and even global character of health threats, so in general the treaty reform stages point in the direction of more effective means to combat common threats. But this movement has not been straightforward, partly due to concerns about handing the European Union powers.
Interested readers are invited to track Article III-179 of the draft constitution, Article III-278 of the Constitutional Treaty, the IGC 2007 Mandate and the final TFEU.
Supplementing information is offered by:
Klemens H. Fischer: Der Vertrag von Lissabon (pages 302 to 305)
François-Xavier Priollaud & David Siritzky: Le traité de Lisbonne (pages 279 to 281)
If your main focus is the change between the current TEC and the TFEU, you may find the following comment by professor Steve Peers helpful:
The amendments: add a reference to ‘physical and mental’ health; refer to action on monitoring, etc. public health; encourage cooperation on cross-border health services; make the Commission’s role clearer; create a specific legal base for legislation on medical products and medical devices; set out in more detail the power to adopt incentive measures; and clarify further the boundary between EU and Member State competences in this area.
In accordance with the Reform Treaty mandate, the new express EU competence concerning serious cross-border health threats has been moved from a shared power (ie a power for the EU to harmonise national law) to a supporting power only. Also, a declaration clarifying the internal market aspects of the new express power to harmonise law concerning medical devices, etc. is attached to the draft Reform Treaty. In fact, Article 95 EC is used at present to adopt legislation on this issue, so the ‘new’ legal base on this issue is not new in practice.
The draft Reform Treaty has also added a reference to the financing of health services.
(Source: Steve Peers: Statewatch Analysis, EU Reform Treaty Analysis no. 3.4: Revised text of Part Three, Titles VII to XVII of the Treaty establishing the European Community (TEC): Other internal EC policies; Version 2, October 2007)
***
Declaration No 32
The member states agreed on a declaration concerning measures setting high standards of quality and safety for medicinal products and devices for medical use, mentioned in Article 168(4)(c) TFEU (OJ 9.5.2008 C 115/348):
32. Declaration on Article 168(4)(c) of the Treaty on the Functioning of the European Union
The Conference declares that the measures to be adopted pursuant to Article 168(4)(c) must meet common safety concerns and aim to set high standards of quality and safety where national standards affecting the internal market would otherwise prevent a high level of human health protection being achieved.
***
EU powers
The powers of the European Union are attributed or conferred by the member states through the treaties. The Treaty of Lisbon makes an effort to present the different categories of competence in a systematic manner.
The categories of EU competence (the taxonomy) are set out in Article 2 TFEU. The three main or general categories are exclusive competence in 2(1), shared competence in 2(2) as well as supporting, coordinating or supplementing competences in 2(5), although the exact scope and arrangements are laid out in the various treaty provisions as stated in 2(6):
Article 2 TFEU
1. When the Treaties confer on the Union exclusive competence in a specific area, only the Union may legislate and adopt legally binding acts, the Member States being able to do so themselves only if so empowered by the Union or for the implementation of Union acts.
2. When the Treaties confer on the Union a competence shared with the Member States in a specific area, the Union and the Member States may legislate and adopt legally binding acts in that area. The Member States shall exercise their competence to the extent that the Union has not exercised its competence. The Member States shall again exercise their competence to the extent that the Union has decided to cease exercising its competence.
3. The Member States shall coordinate their economic and employment policies within arrangements as determined by this Treaty, which the Union shall have competence to provide.
4. The Union shall have competence, in accordance with the provisions of the Treaty on European Union, to define and implement a common foreign and security policy, including the progressive framing of a common defence policy.
5. In certain areas and under the conditions laid down in the Treaties, the Union shall have competence to carry out actions to support, coordinate or supplement the actions of the Member States, without thereby superseding their competence in these areas.
Legally binding acts of the Union adopted on the basis of the provisions of the Treaties relating to these areas shall not entail harmonisation of Member States' laws or regulations.
6. The scope of and arrangements for exercising the Union's competences shall be determined by the provisions of the Treaties relating to each area.
***
Article 4 TFEU
As an area of shared competence between the EU and the member states, Article 4(2)(k) mentions common safety concerns in public health matters for the aspects defined in this Treaty.
***
Article 6 TFEU
The European Union has competence to carry out actions to support, coordinate or supplement the actions of the Member States. Among the areas of such action, at European level, Article 6(1)(a) mentions the protection and improvement of human health.
In other words, different aspects of public health are subject to shared competence, supporting, coordinating or supplementing action or remain wholly with the member states.
***
Summary of legislation: Public health
On the Commission’s Scadplus web pages with summaries of legislation, there is several dedicated to public health issues.
A new strategic approach to health for the EU (2008–2013) (last update 19 February 2008):
http://europa.eu/scadplus/leg/en/cha/c11579.htm
New Community health strategy (last update 26 July 2006):
http://europa.eu/scadplus/leg/en/cha/c11563.htm
Scientific Committees for consumer safety, public health and the environment (last update 2 May 2007):
http://europa.eu/scadplus/leg/en/lvb/l28153.htm
The precautionary principle (last update 2 November 2005):
http://europa.eu/scadplus/leg/en/lvb/l32042.htm
Programme of Community action in the field of health and consumer protection (2008–2013) (last update 8 April 2008):
http://europa.eu/scadplus/leg/en/cha/c11503c.htm
e-Health: improving health and healthcare through the use of information and communication technologies (last update 20 May 2005):
http://europa.eu/scadplus/leg/en/lvb/l24226f.htm
***
News and links
General Commission news and links on Public Health can be found here:
http://ec.europa.eu/health/index_en.htm
Ralf Grahn
Showing posts with label public health. Show all posts
Showing posts with label public health. Show all posts
Thursday, 18 December 2008
Thursday, 17 April 2008
EU TFEU: Common rules for services and establishment
The free movement of services shares many rules concerning the right of establishment in the Treaty on the Functioning of the European Union, as it does in the current Treaty establishing the European Community.
The pattern of this post is modified to take into account the publication of the consolidated Treaty of Lisbon, published 16 April 2008 by the Council of the European Union in the 23 treaty languages.
***
This is Article 62 of the Treaty on the Functioning of the European Union (TFEU), as amended by the intergovernmental conference (IGC 2007) in the Treaty of Lisbon (ToL) and consolidated by the Council of the European Union (document 6655/08; page 93), with the location of the provision added from the table of equivalences:
Part Three ‘Policies and internal actions of the Union’
Title IV TFEU ‘Free movement of persons, services and capital’
Chapter 3 ‘Services’
Article 62 TFEU
(ex Article 55 TEC)
The provisions of Articles 51 to 54 shall apply to the matters covered by this Chapter.
***
The IGC 2007 made no specific amendments to Article 55 TEC, but the provision and its referrals are renumbered. Cf. OJ 17.12.2007 C 306/55.
***
For the convenience of those who want to use the current TEC, we present the provision with the ones it refers to (from the latest consolidated version of the existing treaties, OJ 29.12.2006 C 321 E/63):
Article 55 TEC
The provisions of Articles 45 to 48 shall apply to the matters covered by this Chapter.
***
Article III-35 of the draft Treaty establishing a Constitution for Europe was essentially the same (OJ 18.7.2003 C 169/33):
Article III-35 Draft Constitution
Articles III-24 to III-27 shall apply to the matters covered by this Subsection.
***
Article III-150 of the Treaty establishing a Constitution for Europe followed the draft in style (OJ 16.12.2004 C 310/64):
Article III-150
Articles III-139 to III-142 shall apply to the matters covered by this Subsection.
***
No material change has been proposed during the reform cycle from the European Convention to the Treaty of Lisbon.
We have reached the last provision of Chapter 3 ‘Services’ in order to find out that we are told to go back to Articles 51 to 54 TFEU in Chapter 2 ‘Right of establishment’ to get things right.
With those readers in mind, who do not have the amended provisions at hand, we present the texts here (TFEU consolidation, pages 89 and 90):
Article 51 TFEU
(ex Article 45 TEC)
The provisions of this Chapter shall not apply, so far as any given Member State is concerned, to activities which in that State are connected, even occasionally, with the exercise of official authority.
The European Parliament and the Council, acting in accordance with the ordinary legislative procedure, may rule that the provisions of this Chapter shall not apply to certain activities.
Article 52 TFEU
(ex Article 46 TEC)
1. The provisions of this Chapter and measures taken in pursuance thereof shall not prejudice the applicability of provisions laid down by law, regulation or administrative action providing for special treatment for foreign nationals on grounds of public policy, public security or public health.
2. The European Parliament and the Council shall, acting in accordance with the ordinary legislative procedure, issue directives for the coordination of the abovementioned provisions.
Article 53 TFEU
(ex Article 47 TEC)
1. In order to make it easier for persons to take up and pursue activities as self-employed persons, the European Parliament and the Council shall, acting in accordance with the ordinary legislative procedure, issue directives for the mutual recognition of diplomas, certificates and other evidence of formal qualifications and for the coordination of the provisions laid down by law, regulation or administrative action in Member States concerning the taking-up and pursuit of activities as self-employed persons.
2. In the case of the medical and allied and pharmaceutical professions, the progressive abolition of restrictions shall be dependent upon coordination of the conditions for their exercise in the various Member States.
Article 54 TFEU
(ex Article 48 TEC)
Companies or firms formed in accordance with the law of a Member State and having their registered office, central administration or principal place of business within the Union shall, for the purposes of this Chapter, be treated in the same way as natural persons who are nationals of Member States.
"Companies or firms" means companies or firms constituted under civil or commercial law, including cooperative societies, and other legal persons governed by public or private law, save for those which are non-profit-making.
***
We see that some of the derogations (exceptions) from the right of establishment apply to the free movement of services: the exercise of public authority and the grounds of public policy, public security or public health.
There are legal bases for legislation and there is the principle of equal treatment of companies.
For a closer look, se for instance Chapter 22 ‘Freedom of establishment and to provide services’ in Paul Craig and Gráinne de Búrca: EU Law, Text, Cases, and Materials (Oxford University Press, 4th Edition, 2007).
Ralf Grahn
The pattern of this post is modified to take into account the publication of the consolidated Treaty of Lisbon, published 16 April 2008 by the Council of the European Union in the 23 treaty languages.
***
This is Article 62 of the Treaty on the Functioning of the European Union (TFEU), as amended by the intergovernmental conference (IGC 2007) in the Treaty of Lisbon (ToL) and consolidated by the Council of the European Union (document 6655/08; page 93), with the location of the provision added from the table of equivalences:
Part Three ‘Policies and internal actions of the Union’
Title IV TFEU ‘Free movement of persons, services and capital’
Chapter 3 ‘Services’
Article 62 TFEU
(ex Article 55 TEC)
The provisions of Articles 51 to 54 shall apply to the matters covered by this Chapter.
***
The IGC 2007 made no specific amendments to Article 55 TEC, but the provision and its referrals are renumbered. Cf. OJ 17.12.2007 C 306/55.
***
For the convenience of those who want to use the current TEC, we present the provision with the ones it refers to (from the latest consolidated version of the existing treaties, OJ 29.12.2006 C 321 E/63):
Article 55 TEC
The provisions of Articles 45 to 48 shall apply to the matters covered by this Chapter.
***
Article III-35 of the draft Treaty establishing a Constitution for Europe was essentially the same (OJ 18.7.2003 C 169/33):
Article III-35 Draft Constitution
Articles III-24 to III-27 shall apply to the matters covered by this Subsection.
***
Article III-150 of the Treaty establishing a Constitution for Europe followed the draft in style (OJ 16.12.2004 C 310/64):
Article III-150
Articles III-139 to III-142 shall apply to the matters covered by this Subsection.
***
No material change has been proposed during the reform cycle from the European Convention to the Treaty of Lisbon.
We have reached the last provision of Chapter 3 ‘Services’ in order to find out that we are told to go back to Articles 51 to 54 TFEU in Chapter 2 ‘Right of establishment’ to get things right.
With those readers in mind, who do not have the amended provisions at hand, we present the texts here (TFEU consolidation, pages 89 and 90):
Article 51 TFEU
(ex Article 45 TEC)
The provisions of this Chapter shall not apply, so far as any given Member State is concerned, to activities which in that State are connected, even occasionally, with the exercise of official authority.
The European Parliament and the Council, acting in accordance with the ordinary legislative procedure, may rule that the provisions of this Chapter shall not apply to certain activities.
Article 52 TFEU
(ex Article 46 TEC)
1. The provisions of this Chapter and measures taken in pursuance thereof shall not prejudice the applicability of provisions laid down by law, regulation or administrative action providing for special treatment for foreign nationals on grounds of public policy, public security or public health.
2. The European Parliament and the Council shall, acting in accordance with the ordinary legislative procedure, issue directives for the coordination of the abovementioned provisions.
Article 53 TFEU
(ex Article 47 TEC)
1. In order to make it easier for persons to take up and pursue activities as self-employed persons, the European Parliament and the Council shall, acting in accordance with the ordinary legislative procedure, issue directives for the mutual recognition of diplomas, certificates and other evidence of formal qualifications and for the coordination of the provisions laid down by law, regulation or administrative action in Member States concerning the taking-up and pursuit of activities as self-employed persons.
2. In the case of the medical and allied and pharmaceutical professions, the progressive abolition of restrictions shall be dependent upon coordination of the conditions for their exercise in the various Member States.
Article 54 TFEU
(ex Article 48 TEC)
Companies or firms formed in accordance with the law of a Member State and having their registered office, central administration or principal place of business within the Union shall, for the purposes of this Chapter, be treated in the same way as natural persons who are nationals of Member States.
"Companies or firms" means companies or firms constituted under civil or commercial law, including cooperative societies, and other legal persons governed by public or private law, save for those which are non-profit-making.
***
We see that some of the derogations (exceptions) from the right of establishment apply to the free movement of services: the exercise of public authority and the grounds of public policy, public security or public health.
There are legal bases for legislation and there is the principle of equal treatment of companies.
For a closer look, se for instance Chapter 22 ‘Freedom of establishment and to provide services’ in Paul Craig and Gráinne de Búrca: EU Law, Text, Cases, and Materials (Oxford University Press, 4th Edition, 2007).
Ralf Grahn
Monday, 7 April 2008
EU TFEU: Public policy, public security and public health exceptions
‘Public policy, public security or public health’ form a potent formula for exceptions concerning the fundamental principles of free movement, citizenship rights, freedom to provide services and freedom of establishment within the European Community (European Union).
Here we look at the exemptions in the light of the present Treaty establishing the European Community and the coming Treaty on the Functioning of the European Union (Treaty of Lisbon), with a glance towards the draft Constitution and the Constitutional Treaty along the route.
The concrete provision we deal with concerns these exceptions in the context of the freedom of establishment, but often more than one of the rights and freedoms occur in the same case.
A few hints on further reading follow, meant to facilitate understanding of the system and strict interpretation of derogations.
***
In the Treaty of Lisbon (ToL) the intergovernmental conference (IGC 2007) made no specific amendments to Article 46 of the Treaty establishing the European Community (TEC). Cf. Official Journal, OJ, 17.12.2007 C 306/54-55.
***
The latest consolidated version of the existing treaties, TEU and TEC, presents Article 46 TEC as it now stands (OJ 29.12.2006 C 321 E/61):
Article 46 TEC
1. The provisions of this Chapter and measures taken in pursuance thereof shall not prejudice the applicability of provisions laid down by law, regulation or administrative action providing for special treatment for foreign nationals on grounds of public policy, public security or public health.
2. The Council shall, acting in accordance with the procedure referred to in Article 251, issue directives for the coordination of the abovementioned provisions.
***
To arrive at a consolidated Lisbon Treaty version of an Article requires that we check if one or more of the following apply: express amendments (here none), horizontal amendments (here one), renumbering of the provision (yes) and renumbering of possible referrals (here none).
The location of the Article is thrown in as a matter of reading convenience in a post read in isolation.
Thus, we should end up with the following Article, consolidated according to the Treaty of Lisbon:
Part Three ‘Policies and internal actions of the Union’
Title III (renumbered Title IV) ‘Free movement of persons, services and capital’
Chapter 2 ‘Right of establishment’
Article 46 TFEU (ToL), renumbered Article 52 TFEU
1. The provisions of this Chapter and measures taken in pursuance thereof shall not prejudice the applicability of provisions laid down by law, regulation or administrative action providing for special treatment for foreign nationals on grounds of public policy, public security or public health.
2. The European Parliament and the Council shall, acting in accordance with the ordinary legislative procedure, issue directives for the coordination of the abovementioned provisions.
***
The European Convention changed just enough of the wording in Article III-25 of the draft Treaty establishing a Constitution for Europe to merit repeating, but without changing anything of substance (OJ 18.7.2003 C 169/32):
Article III-25 Draft Constitution
1. This Subsection and measures adopted in pursuance thereof shall not prejudice the applicability of provisions laid down by law, regulation or administrative action in Member States providing for special treatment for foreign nationals on grounds of public policy, public security or public health.
2. European framework laws shall coordinate the national provisions referred to in paragraph 1.
***
The IGC 2004 adopted the draft text unchanged in Article III-140 of the Treaty establishing a Constitution for Europe (OJ 16.12.2004 C 310/62).
***
The IGC 2007 followed the adage ‘If it ain’t broke, don’t fix it’, thus preserving the current wording (with the one technical or horizontal amendment concerning the ordinary legislative procedure).
***
The Commission’s internal market web pages on services offer an introductory page ‘General principles: Freedom to provide services / Freedom of establishment’ (last update 28 January 2008):
http://ec.europa.eu/internal_market/services/principles_en.htm
There is a link to a 112 page ‘Guide to the Case Law of the European Court of Justice on Articles 43 et seq. EC Treaty: Freedom of Establishment’, from 1 January 2001, but with an update promised shortly:
http://ec.europa.eu/internal_market/services/docs/infringements/art43_en.pdf
Available on the web you can find the following:
J.H.H. Weiler and Martina Kocjan: The Law of the European Union, Teaching Material, The Internal Market: Freedom to Provide Services, Freedom of Establishment (NYU School of Law 2004/2005; 72 pages):
http://ec.europa.eu/internal_market/services/docs/infringements/art43_en.pdf
A detailed study is:
Markku Kiikeri: The Freedom of Establishment in the European Union, Report to the Finnish Ministry of Trade and Industry, 2002 (133 pages + Annexes XIX pages):
http://www.helsinki.fi/publaw/opiskelu/Eurooppaoikeus/Sijoittautumistutkimus.englanti.Kiikeri.pdf
These materials offer a fair grounding in the fundamental questions regarding the freedom of establishment, leaving only the latest developments of secondary legislation and case law to be unearthed by the reader.
Ralf Grahn
P.S. Both the draft Constitution and the Constitutional Treaty were published quickly, and they were already 'consolidated versions'. We have to go back to the ill-fated Treaty of Nice to find a treaty published in a consolidated version only after entering into force.
Some would argue that a few things have happened in net publishing since 2001.
Anyway, a long wait seems to draw to a close, when the consolidated Lisbon Treaty is published 15 April 2008, and in book form 9 May 2008 (Europe day).
Here we look at the exemptions in the light of the present Treaty establishing the European Community and the coming Treaty on the Functioning of the European Union (Treaty of Lisbon), with a glance towards the draft Constitution and the Constitutional Treaty along the route.
The concrete provision we deal with concerns these exceptions in the context of the freedom of establishment, but often more than one of the rights and freedoms occur in the same case.
A few hints on further reading follow, meant to facilitate understanding of the system and strict interpretation of derogations.
***
In the Treaty of Lisbon (ToL) the intergovernmental conference (IGC 2007) made no specific amendments to Article 46 of the Treaty establishing the European Community (TEC). Cf. Official Journal, OJ, 17.12.2007 C 306/54-55.
***
The latest consolidated version of the existing treaties, TEU and TEC, presents Article 46 TEC as it now stands (OJ 29.12.2006 C 321 E/61):
Article 46 TEC
1. The provisions of this Chapter and measures taken in pursuance thereof shall not prejudice the applicability of provisions laid down by law, regulation or administrative action providing for special treatment for foreign nationals on grounds of public policy, public security or public health.
2. The Council shall, acting in accordance with the procedure referred to in Article 251, issue directives for the coordination of the abovementioned provisions.
***
To arrive at a consolidated Lisbon Treaty version of an Article requires that we check if one or more of the following apply: express amendments (here none), horizontal amendments (here one), renumbering of the provision (yes) and renumbering of possible referrals (here none).
The location of the Article is thrown in as a matter of reading convenience in a post read in isolation.
Thus, we should end up with the following Article, consolidated according to the Treaty of Lisbon:
Part Three ‘Policies and internal actions of the Union’
Title III (renumbered Title IV) ‘Free movement of persons, services and capital’
Chapter 2 ‘Right of establishment’
Article 46 TFEU (ToL), renumbered Article 52 TFEU
1. The provisions of this Chapter and measures taken in pursuance thereof shall not prejudice the applicability of provisions laid down by law, regulation or administrative action providing for special treatment for foreign nationals on grounds of public policy, public security or public health.
2. The European Parliament and the Council shall, acting in accordance with the ordinary legislative procedure, issue directives for the coordination of the abovementioned provisions.
***
The European Convention changed just enough of the wording in Article III-25 of the draft Treaty establishing a Constitution for Europe to merit repeating, but without changing anything of substance (OJ 18.7.2003 C 169/32):
Article III-25 Draft Constitution
1. This Subsection and measures adopted in pursuance thereof shall not prejudice the applicability of provisions laid down by law, regulation or administrative action in Member States providing for special treatment for foreign nationals on grounds of public policy, public security or public health.
2. European framework laws shall coordinate the national provisions referred to in paragraph 1.
***
The IGC 2004 adopted the draft text unchanged in Article III-140 of the Treaty establishing a Constitution for Europe (OJ 16.12.2004 C 310/62).
***
The IGC 2007 followed the adage ‘If it ain’t broke, don’t fix it’, thus preserving the current wording (with the one technical or horizontal amendment concerning the ordinary legislative procedure).
***
The Commission’s internal market web pages on services offer an introductory page ‘General principles: Freedom to provide services / Freedom of establishment’ (last update 28 January 2008):
http://ec.europa.eu/internal_market/services/principles_en.htm
There is a link to a 112 page ‘Guide to the Case Law of the European Court of Justice on Articles 43 et seq. EC Treaty: Freedom of Establishment’, from 1 January 2001, but with an update promised shortly:
http://ec.europa.eu/internal_market/services/docs/infringements/art43_en.pdf
Available on the web you can find the following:
J.H.H. Weiler and Martina Kocjan: The Law of the European Union, Teaching Material, The Internal Market: Freedom to Provide Services, Freedom of Establishment (NYU School of Law 2004/2005; 72 pages):
http://ec.europa.eu/internal_market/services/docs/infringements/art43_en.pdf
A detailed study is:
Markku Kiikeri: The Freedom of Establishment in the European Union, Report to the Finnish Ministry of Trade and Industry, 2002 (133 pages + Annexes XIX pages):
http://www.helsinki.fi/publaw/opiskelu/Eurooppaoikeus/Sijoittautumistutkimus.englanti.Kiikeri.pdf
These materials offer a fair grounding in the fundamental questions regarding the freedom of establishment, leaving only the latest developments of secondary legislation and case law to be unearthed by the reader.
Ralf Grahn
P.S. Both the draft Constitution and the Constitutional Treaty were published quickly, and they were already 'consolidated versions'. We have to go back to the ill-fated Treaty of Nice to find a treaty published in a consolidated version only after entering into force.
Some would argue that a few things have happened in net publishing since 2001.
Anyway, a long wait seems to draw to a close, when the consolidated Lisbon Treaty is published 15 April 2008, and in book form 9 May 2008 (Europe day).
Monday, 31 March 2008
EU TFEU: Freedom of movement for workers
Not only goods, services and capital, but humans looking for work are meant to be able to move freely within the European Community (European Union).
We take a brief look at what the freedom of movement of workers looks like at treaty level, when the Treaty of Lisbon has entered into force.
***
We continue our study of Part Three ‘Policies and internal actions of the Union’ in the light of the Lisbon Treaty.
Title III ‘Free movement of persons, services and capital’ of the Treaty establishing the European Community (TEC), first becomes Title III with the same name of the Treaty of Lisbon (ToL) version of the Treaty on the Functioning of the European Union (TFEU), later to be renumbered Title IV.
Chapter 1 ‘Workers’ retains its name and number throughout. (See OJ 17.12.2007 C 306/207-208.)
***
Arriving at Article 39 TEC the intergovernmental conference (IGC 2007) was far from loquacious (OJ 17.12.2007 C 306/54):
FREE MOVEMENT OF WORKERS
50) In Article 39(3)(d), the word ‘implementing’ shall be deleted.
***
With one word to delete, we have a certain need to find the precious rest of the provision. The latest consolidated version of the current TEU and TEC is found in OJ 29.12.2006 C 321 E/57-58:
TITLE III
FREE MOVEMENT OF PERSONS, SERVICES AND CAPITAL
CHAPTER 1
WORKERS
Article 39 TEC
1. Freedom of movement for workers shall be secured within the Community.
2. Such freedom of movement shall entail the abolition of any discrimination based on nationality between workers of the Member States as regards employment, remuneration and other conditions of work and employment.
3. It shall entail the right, subject to limitations justified on grounds of public policy, public security or public health:
(a) to accept offers of employment actually made;
(b) to move freely within the territory of Member States for this purpose;
(c) to stay in a Member State for the purpose of employment in accordance with the provisions governing the employment of nationals of that State laid down by law, regulation or administrative action;
(d) to remain in the territory of a Member State after having been employed in that State, subject to conditions which shall be embodied in implementing regulations to be drawn up by the Commission.
4. The provisions of this Article shall not apply to employment in the public service.
***
A consolidated Lisbon Treaty version of an Article builds upon the express amendments (here only one), possible horizontal amendments and the future renumbering. Indicating the setting of the provision, we should end up with the following result:
Part Three ‘Policies and internal actions of the Union’
Title III (renumbered Title IV) ‘Free movement of persons, services and capital’
Chapter 1 ‘Workers’
Article 39 TFEU (ToL), renumbered Article 45 TFEU
1. Freedom of movement for workers shall be secured within the Union.
2. Such freedom of movement shall entail the abolition of any discrimination based on nationality between workers of the Member States as regards employment, remuneration and other conditions of work and employment.
3. It shall entail the right, subject to limitations justified on grounds of public policy, public security or public health:
(a) to accept offers of employment actually made;
(b) to move freely within the territory of Member States for this purpose;
(c) to stay in a Member State for the purpose of employment in accordance with the provisions governing the employment of nationals of that State laid down by law, regulation or administrative action;
(d) to remain in the territory of a Member State after having been employed in that State, subject to conditions which shall be embodied in regulations to be drawn up by the Commission.
4. The provisions of this Article shall not apply to employment in the public service.
***
In Article III-18 of the draft Treaty establishing a Constitution for Europe nothing changed the substance of the provision, but some readers may prefer the plain language of the European Convention in a few details while others may miss the formula ‘freedom of movement for workers’ (OJ 18.7.2003 C 169/31):
SECTION 2
Free movement of persons and services
Subsection 1
Workers
Article III-18 Draft Constitution
1. Workers shall have the right to move freely within the Union.
2. Any discrimination based on nationality between workers of the Member States as regards employment, remuneration and other conditions of work and employment shall be prohibited.
3. Workers shall have the right, subject to limitations justified on grounds of public policy, public security or public health:
(a) to accept offers of employment actually made;
(b) to move freely within the territory of Member States for this purpose;
(c) to stay in a Member State for the purpose of employment in accordance with the provisions governing the employment of nationals of that State laid down by law, regulation or administrative action;
(d) to remain in the territory of a Member State after having been employed in that State, subject to conditions which shall be embodied in European regulations adopted by the Commission.
4. This Article shall not apply to employment in the public service.
***
The corresponding Article III-133 of the Treaty establishing a Constitution for Europe repeated the text of the draft word for word, so the Lisbon Treaty can be said to have reverted to the TEC text, as far as there are any differences, and none of them material.
***
The reader who wants to begin exploring the right to move freely can start from the Commission’s pages on Employment and Social Affairs, Free Movement of Workers ‘Free Movement of Workers and the Principle of Equal Treatment’ and the links offered:
http://ec.europa.eu/employment_social/free_movement/index_en.htm
Ralf Grahn
We take a brief look at what the freedom of movement of workers looks like at treaty level, when the Treaty of Lisbon has entered into force.
***
We continue our study of Part Three ‘Policies and internal actions of the Union’ in the light of the Lisbon Treaty.
Title III ‘Free movement of persons, services and capital’ of the Treaty establishing the European Community (TEC), first becomes Title III with the same name of the Treaty of Lisbon (ToL) version of the Treaty on the Functioning of the European Union (TFEU), later to be renumbered Title IV.
Chapter 1 ‘Workers’ retains its name and number throughout. (See OJ 17.12.2007 C 306/207-208.)
***
Arriving at Article 39 TEC the intergovernmental conference (IGC 2007) was far from loquacious (OJ 17.12.2007 C 306/54):
FREE MOVEMENT OF WORKERS
50) In Article 39(3)(d), the word ‘implementing’ shall be deleted.
***
With one word to delete, we have a certain need to find the precious rest of the provision. The latest consolidated version of the current TEU and TEC is found in OJ 29.12.2006 C 321 E/57-58:
TITLE III
FREE MOVEMENT OF PERSONS, SERVICES AND CAPITAL
CHAPTER 1
WORKERS
Article 39 TEC
1. Freedom of movement for workers shall be secured within the Community.
2. Such freedom of movement shall entail the abolition of any discrimination based on nationality between workers of the Member States as regards employment, remuneration and other conditions of work and employment.
3. It shall entail the right, subject to limitations justified on grounds of public policy, public security or public health:
(a) to accept offers of employment actually made;
(b) to move freely within the territory of Member States for this purpose;
(c) to stay in a Member State for the purpose of employment in accordance with the provisions governing the employment of nationals of that State laid down by law, regulation or administrative action;
(d) to remain in the territory of a Member State after having been employed in that State, subject to conditions which shall be embodied in implementing regulations to be drawn up by the Commission.
4. The provisions of this Article shall not apply to employment in the public service.
***
A consolidated Lisbon Treaty version of an Article builds upon the express amendments (here only one), possible horizontal amendments and the future renumbering. Indicating the setting of the provision, we should end up with the following result:
Part Three ‘Policies and internal actions of the Union’
Title III (renumbered Title IV) ‘Free movement of persons, services and capital’
Chapter 1 ‘Workers’
Article 39 TFEU (ToL), renumbered Article 45 TFEU
1. Freedom of movement for workers shall be secured within the Union.
2. Such freedom of movement shall entail the abolition of any discrimination based on nationality between workers of the Member States as regards employment, remuneration and other conditions of work and employment.
3. It shall entail the right, subject to limitations justified on grounds of public policy, public security or public health:
(a) to accept offers of employment actually made;
(b) to move freely within the territory of Member States for this purpose;
(c) to stay in a Member State for the purpose of employment in accordance with the provisions governing the employment of nationals of that State laid down by law, regulation or administrative action;
(d) to remain in the territory of a Member State after having been employed in that State, subject to conditions which shall be embodied in regulations to be drawn up by the Commission.
4. The provisions of this Article shall not apply to employment in the public service.
***
In Article III-18 of the draft Treaty establishing a Constitution for Europe nothing changed the substance of the provision, but some readers may prefer the plain language of the European Convention in a few details while others may miss the formula ‘freedom of movement for workers’ (OJ 18.7.2003 C 169/31):
SECTION 2
Free movement of persons and services
Subsection 1
Workers
Article III-18 Draft Constitution
1. Workers shall have the right to move freely within the Union.
2. Any discrimination based on nationality between workers of the Member States as regards employment, remuneration and other conditions of work and employment shall be prohibited.
3. Workers shall have the right, subject to limitations justified on grounds of public policy, public security or public health:
(a) to accept offers of employment actually made;
(b) to move freely within the territory of Member States for this purpose;
(c) to stay in a Member State for the purpose of employment in accordance with the provisions governing the employment of nationals of that State laid down by law, regulation or administrative action;
(d) to remain in the territory of a Member State after having been employed in that State, subject to conditions which shall be embodied in European regulations adopted by the Commission.
4. This Article shall not apply to employment in the public service.
***
The corresponding Article III-133 of the Treaty establishing a Constitution for Europe repeated the text of the draft word for word, so the Lisbon Treaty can be said to have reverted to the TEC text, as far as there are any differences, and none of them material.
***
The reader who wants to begin exploring the right to move freely can start from the Commission’s pages on Employment and Social Affairs, Free Movement of Workers ‘Free Movement of Workers and the Principle of Equal Treatment’ and the links offered:
http://ec.europa.eu/employment_social/free_movement/index_en.htm
Ralf Grahn
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