Single Market Act II reception

Yesterday we posted the entries Single Market Act blog posts, Single Market concerns and the Single Market Act II.

The year 2012 was the year of the 20th anniversary of the internal market (single market) and the birth of the SMA II:

Single Market Act II - Together for new growth; Brussels, 3.10.2012 COM(2012) 573 final (24 pages)

Today is the 60th anniversary of the signing of the Rome Treaties, but we continue to follow the efforts to improve the internal market during the 2010s. Here we look at the SMA II reception by the European Council (EUCO) and the Competitiveness Council late 2012.

European Council October 2012  

Under the Compact for Growth and Jobs, the European Council conclusions 18-19 October 2012 EUCO 156/12 encouraged the adoption of Single Market Act I and Single Market Act II proposals, as well as actions to improve transport, energy and telecommunications networks, plus a “fully functioning” Digital Single Market:

2. The European Council remains determined to stimulate growth and jobs, in the context of the Europe 2020 Strategy. The Compact for Growth and Jobs, decided last June, constitutes the overall framework for action at national, euro and EU levels, mobilising all levers, instruments and policies. All the commitments it outlines must be fully and rapidly delivered. Significant progress has been achieved so far, as shown in the letter from the President of the European Council of 8 October 2012 as well as in the reports from the Presidency and the Commission. However, greater efforts are required in certain areas, as set out below.

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(b) Deepening the Single Market: progress has been made on the Single Market Act I, but more efforts are required to complete work on the outstanding proposals including on accounting, professional qualifications, public procurement and venture capital funds. The Commission's new communication on the Single Market Act II sets out 12 further key actions which should contribute much to sustainable European growth, employment and social cohesion. The European Council welcomes the Commission's intention to present all key SMA II proposals by spring 2013 and calls for their rapid examination in order to allow their adoption by the end of the current parliamentary cycle at the latest. It is also important to take urgent action in line with the Commission's communications on implementation of the Services Directive and on Single Market governance.

(c) Connecting Europe: the future Connecting Europe Facility will constitute an important instrument to promote growth through investment in transport, energy and ICT links. In the field of transport, eliminating regulatory barriers and tackling bottlenecks and missing cross-border links is essential in order to guarantee the efficient operation of the Single Market and promote competitiveness and growth. Digital technologies and infrastructures are also an essential prerequisite. Recalling the need to complete the internal energy market fully by 2014 in accordance with the agreed deadlines and to ensure that no Member State remains isolated from the European gas and electricity networks after 2015, the European Council calls for rapid agreement on the proposal on energy TENs and looks forward to the forthcoming Commission communication and Action Plan to address the prevailing challenges.

(d) Achieving a fully functioning Digital Single Market by 2015: this could generate an additional growth of 4% over the period up to 2020. The European Council therefore calls for work to be accelerated on the proposals on e-signature and collective rights management and looks forward to the forthcoming proposals on reducing the cost of the deployment of high speed broadband and on e-invoicing. The forthcoming midterm review of the Digital Agenda should be used to identify areas where more work needs to be done. It is necessary to modernise Europe's copyright regime to facilitate access to content while upholding intellectual property rights and encouraging creativity and cultural diversity.

Competitiveness Council December 2012

The Competitiveness (Internal Market, Industry, Research and Space) 10-11 December 2012 conclusions 17410/12 recorded progress regarding SMA I proposals, such as the unitary patent, public procurement rules, resolution of consumer disputes, professional qualifications and accounting rules (pages 9-14), but also adopted conclusions on the SMA II (page 15):

Single Market Act II – Council conclusions

The Council adopted conclusions on the second set of new priority proposals presented by the Commission on 3 October 2012 under the "Single Market Act II".

These proposals will supplement the first set of measures of the Single Market Act I package for deepening and strengthening the single market in order to create economic growth and jobs.

Inter alia, the conclusions highlight the need for the single market to rest upon a strong economic and social basis and the importance for the SMA II actions to address the concerns of citizens and businesses.

The conclusions are set out in document 16617/12.

From the general conclusions to the specific conclusions in Council document 16617/12, prepared earlier by Coreper, but formally adopted by the ministers:

Draft Council conclusions on the Single Market Act II - Together for new Growth 16617/12 (about four pages of text between the cover note and the annex list)

The Competitiveness Council called on the Commission to table the SMA II proposals and encouraged the member states and the European Parliament to adopt them before the end of the parliamentary term etc., but here I want to highlight the viewpoints on the integration of single market progress into the economic governance cycle called the European Semester, plus the need to monitor SMA I and SMA II progress:

11. STRESSES the need for its stronger role on Single Market issues in the context of the European Semester process with regard to sustainable growth and competitiveness enhancing measures, including the governance of the Single Market and, where appropriate, the adoption and implementation of the key actions of the SMA I and SMA II. Moreover, WELCOMES the Commission's first Annual Report on the State of the Single Market Integration, including the identification of actions in priority areas; and LOOKS FORWARD to the timely discussion of every annual Report in the Competitiveness Council and its preparatory bodies in the framework of the European Semester process.

12. UNDERLINES the need to monitor closely the progress on the key proposals of the SMA I and SMA II and in this regard INVITES the Commission to present a semi-annual report for discussion in the High Level Group on Competitiveness and Growth and subsequently in the Council; where progress is insufficient, ENCOURAGES the Presidency to take all necessary steps to speed up the process.

European Council December 2012

The 13-14 December 2012 European Council conclusions EUCO 205/12 bundled together its comments on the SMA I and the SMA II. EUCO also commented on the efforts to streamline business regulation:

17. The completion of the Single Market can contribute much to growth and jobs and constitutes a key element of the EU's response to the financial, economic and social crisis. The European Council took stock of the state of play as regards the priority proposals of the Single Market Act I and welcomed the agreement reached among participating Member States on the Unitary Patent as well as the agreement on Alternative Dispute Resolution and Online Dispute Resolution for consumer disputes. It calls on the co-legislators to conclude the remaining SMA I files as a matter of urgency. In particular, work should be speeded up on professional qualifications, public procurement, posting of workers and e-signature and e-identification. As regards the Single Market Act II, the European Council calls on the Commission to present all key proposals by the spring of 2013. It invites the Council and the European Parliament to give these proposals the highest priority with a view to their adoption by the end of the current parliamentary cycle at the latest. It is also important to take urgent action in line with the Commission's communications on implementation of the Services Directive and on Single Market governance. The European Council will keep progress on all single market proposals under close review.

18. The European Council calls for the rapid examination of the Commission's communication on "Smart Regulation" and looks forward to the publication of the first SME scoreboard. The European Council welcomes the proposals by the Commission to reduce regulatory burdens and scrap regulations that are no longer of use as part of its overall approach to "Smart Regulation". It looks forward to concrete progress and a report back at its March 2013 meeting.

Ralf Grahn

General sources:

General Report on the Activities of the European Union - 2012 (free to download at the EU Bookshop in all the official EU languages)

General Report on the Activities of the European Union - 2013 (you can download the annual report freely in your chosen EU language at the EU Bookshop)

Regeringens skrivelse 2012/13:80 Berättelse om verksamheten i Europeiska unionen under 2012  

Regeringens skrivelse 2013/14:115 Verksamheten i Europeiska unionen under 2013

Electronic communications in EU: BEREC blog posts

The previous blog post What is the EU doing for growth and jobs? painted a background picture of main reform programmes in the European Union.

In this context the Digital Agenda and the Digital Single Market are among the catchwords for growth-enhancing and life-enriching reforms in the EU.

If we go beyond the EU institutions in the important area of electronic communications, we find BEREC as a link between political declarations and market realities.


BEREC blog posts

In a number of blog posts we have discussed the Body of European Regulators for Electronic Communications (BEREC), established by EU regulation 1211/2009 and with its office recently inaugurated in Riga (Latvia). These background posts are in English (EN), Finnish (FI) and Swedish (SV).

Grahnblawg (SV): Berec om nätneutralitet och öppenhet

Eurooppaoikeus (FI): Euroopan sähköisen viestinnän sääntelyviranomaisten yhteistyöelin (BEREC)

Grahnlaw (EN): Body of European Regulators for Electronic Communications (BEREC)

Grahnlaw (EN): EU electronic communications: BEREC medium term strategy consultation

Grahnlaw (EN): EU electronic communications: BEREC Work Programme 2012

Grahnlaw (EN): BEREC draft Work Programme 2012 consultation procedure

Grahnlaw (EN): Report on the consultation of the BEREC draft Work Programme 2012

Grahnblawg (SV): Elektronisk kommunikation i EU: Bakgrund till Berec 2012

Eurooppaoikeus (FI): Sähköisen viestinnän sääntely EU:ssa: taustalla BEREC

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Our next step takes us from the BEREC background to the substance of the Work Programme 2012.



Ralf Grahn

Body of European Regulators for Electronic Communications (BEREC)

One part of the new EU regulatory framework for electronic communications, the telecoms package approved in 2009, was the establishment of BEREC.

The BEREC Regulation 1211/2009, published two years ago, is available in 23 official EU languages; the English version:

REGULATION (EC) No 1211/2009 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 25 November 2009 establishing the Body of European Regulators for Electronic Communications (BEREC) and the Office (Text with EEA relevance); OJEU 18.12.2009 L 337/1

It did not take the governments of the EU member states more than about half a year to agree to establish the BEREC office in Riga (Latvia), or maybe they waited for the transposition date of the telecoms package to pass:

DECISION TAKEN BY COMMON ACCORD BETWEEN THE REPRESENTATIVES OF THE GOVERNMENTS OF THE MEMBER STATES of 31 May 2010 on the location of the seat of the Office of the Body of European Regulators for Electronic Communications (BEREC) (2010/349/EU); OJEU 23.6.2010 L 156/12

The BEREC office was inaugurated 14 October 2011, so it has been fully operational in Riga for less than three months.

The BEREC website can be described as spartan. Given the area – electronic communications – the absence of an RSS feed comes as a surprise. There is no social media presence (blog, Twitter, Facebook) I am aware of.


Board of Regulators

According to Regulation 1211/2009, BEREC is composed of a Board of Regulators (BoR), with one member from the National Regulatory Authority (NRA) in each member state. (BoR Rules of Procedure)

The NRAs from European Economic Area (EEA) states and from the candidates for EU accession have observer status.

The Regulation 1211/2009 established the office as a Community body with legal personality, with a Management Committee composed of one representative per member state NRA. (MC Rules of Procedure)


National Regulatory Authorities NRAs

In addition to the 27 EU member NRAs, there are observer NRAs from Croatia, Iceland, Liechtenstein, Macedonia, Montenegro, Norway, Switzerland and Turkey. The names and links are on offer here.


Digital Agenda & digital single market

At the inauguration ceremony in Riga, Commission vice-president Neelie Kroes outlined the contribution of BEREC and the National Regulatory Authorities (NRAs) in the success of the Digital Agenda for Europe goal of a vibrant digital single market. The crucial tasks she mentioned were roaming, net neutrality, superfast broadband and getting every European digital.


BEREC medium term strategy consultation

BEREC has announced a public consultation, which runs until 16 January 2012. The draft strategy document the stakeholders are invited to comment on is:

Draft BEREC medium term strategy outlook; 14 December 2011 BoR (11) 58 (7 pages)


BEREC Work Programme 2012

The recently published Work Programme for 2012 offers more detail about the coming activities in the short term:

Work Programme 2012 BEREC Board of Regulators; 9 December 2011 BoR (11) 62 (18 pages)



Ralf Grahn

EU Digital Agenda: regulatory developments

We have looked at some basic economic and market trends, as well as broadband developments as they appeared at the time of the Digital Agenda launch.

We return to the Commission staff working document SEC(2010) 630 final/2, which accompanied the 15th progress report about telecoms (eCommunications) markets in Europe:

CORRIGENDUM
Annule et remplace le document SEC(2010) 630 final du 25.5.2010

COMMISSION STAFF WORKING DOCUMENT accompanying the COMMUNICATION PROGRESS REPORT ON THE SINGLE EUROPEAN ELECTRONIC COMMUNICATIONS MARKET (15th REPORT); Brussels, 25.8.2010 SEC(2010) 630 final/2 PART 1 (422 pages)

Since fixed telephony declines in terms of both revenues and volumes, I am just going to note the rapid rise of Voice over Internet Protocol (VoIP) telephony (page 34-36).


Telecoms regulation

The section about regulatory developments discussed the institutional framework, the implementation of regulatory measures, the consumer interest, horizontal regulation, spectrum management, as well as monitoring and enforcement.

Here are a few regulatory observations I found interesting enough to share with you.


NRAs

The EU member states have an obligation to ensure that the national regulatory authorities (NRAs) are legally distinct from and functionally independent of electronic communications networks and services providers, including state-owned ones.

One of the tasks of the Commission is to monitor the independence of NRAs, and it took action when necessary. Some of the critical issues were the institutional arrangements, the attribution of regulatory functions, the rules regarding the appointment and the dismissal of the regulator and the availability of adequate resources (staff, expertise and funding) (page 44-47).


Consumer protection

As the Commission said (page 55):

The requirement to provide transparent and up-to-date information on tariff plans, prices, and service terms and conditions is one of the fundamental pillars of EU consumer protection rules in the area of telecommunications.

Some innovative approaches were noted. One was the deployment of IT tools which allow end-users to test their actual broadband speeds. Online evaluation mechanisms enabling cost comparisons of alternative usage patterns were another transparency tool (both on page 56).


Universal service obligations

The Commission mentioned four elements of universal telecommunications services, which had to be available to all end-users at an affordable price and specified quality (Universal Service Directive 2002/22, here link to consolidated version of 19 December 2009). These were currently under review in many countries: (i) access at a fixed location to telephony services, fax communications and functional internet, (ii) comprehensive directory and directory enquiry service, (iii) availability of public payphones, and (iv) special measures for disabled, those on low income and with special needs (page 57).

Finland was the first country to take concrete measures to initiate a designation procedure for universal service broadband of 1 Mbps (page 57).



Ralf Grahn


P.S. Dear Readers, I am interested in national Digital Agendas (existing language versions), as well as information society plans and ICT actions in the member states of the European Union. If you know something, you can use the comment section or email me.

EU radio spectrum impact assessment

In line with EU regulation policies and for the benefit of the national governments, parliaments and the public, as well as the European Parliament, the Commission proposal to establish the first radio spectrum programme (RSPP) for the European Union COM(2010) 471 was accompanied by two Commission Staff Working documents.

A summary of the impact assessment was published in 22 official EU languages.

The English version of the IA summary:

SUMMARY OF THE IMPACT ASSESSMENT Accompanying document to the Proposal for a DECISION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL establishing the first radio spectrum policy programme; Brussels, 20.9.2010 SEC(2010) 1035 final (9 pages)

According to the bibliographic notice on Eur-Lex, the full impact assessment has been published published only in English:

IMPACT ASSESSMENT Accompanying document to the Proposal for a DECISION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL establishing the first radio spectrum policy programme; Brussels, 20.9.2010 SEC(2010) 1034 final (78 pages)



Ralf Grahn

How much EU law is there? Smart regulation and impact assessments

Quantity and quality are different things, but the European Commission offers an approximate answer to the question how many legal acts there are with European Union origin.

This detail is found in the Report from the Commission:



27th annual report on monitoring the application of EU law (2009); Brussels, 1.10.2010 COM(2010) 538 final (12 pages)



Quantity of EU regulation

The numbers won’t end discussions about how “intrusive” or expensive EU regulation is, or on the other hand how far away the more than 50 year old ex common market, now officially the internal market, is from the ideal of a seamlessly functioning single market.

However, even the detail about the number of legal acts on the EU statute book has some relevance. This is what the report tells us on page 2:

At the end of 2009, EU law comprised, apart from the rules of the Treaty, some 6140 regulations and just under 1820 directives in force throughout the 27 Member States.

Quality of EU regulation


The basic argument in favour of EU level regulation is that businesses have to contend with one set of red tape instead of 27, or 30 when we take the European Economic Area (EEA) into account.

There are external aspects as well. Internal market standards for a fairly rich EEA with about 506 million consumers set ‘de facto’ norms for businesses elsewhere. In short, if third country enterprises want to export to the EU, they have to achieve European product standards. In international trade negotiations the common commercial policy potentially gives the European Union clout way beyond what a member state could hope to achieve on its own.

Some of those who are wedded to ‘light touch regulation’ tend to forget that rules and standards are intended to protect people: life, health, safety at work, consumer protection. As an ideology, a race to the bottom is not exempt from dangers for the common good.

This still leaves open the question of the costs versus benefits of regulation. If we care for both businesses and wider societal effects, we have to search for answers in a more pragmatic and evidence-based manner than through pure ideology.

It is fairly easy to demonstrate the gross or even net contributions of member states to the budget of the European Union. It is more difficult to quantify the costs of EU regulation compared to the alternative, national norm-setting, or the savings for the national economies and businesses through joint regulation at continental level. - The alternative is not EU regulation or no regulation (and regulatory burden).

Anyone who proposes ‘freely cooperating, sovereign nation states’ as an alternative should study the common market as long as its progress was ruled by unanimity. Without supra-national decision-making there would be no real common market (even in the imperfect form of today).

The European Union is not totally deaf to criticism. “Better regulation” has long been one of those activities, which are little noticed by the wider public, but extremely important for both enterprises and EU citizens.



Smart regulation updates

“Smart regulation” is now the Commission’s preferred term for the “better regulation” agenda. The European Commission regularly reports on progress in this area.

For a quick overview, you can read the fresh press release from the Commission, available in 22 languages:



Smart regulation: ensuring that European laws benefit people and businesses; 8 October 2010 IP/10/1296



Impact assessments

The press release from the Commission followed on the heels of a report, where the Court of Auditors evaluated the impact assessment system. The Commission’s welcoming words can be found in another press release, also available in 22 languages:



Impact assessments improve the Commission's policy-making. Commission welcomes positive report by the European Court of Auditors; 28 September 2010 IP/10/1187

If you suspect the Commission of favourable spin, you may want to read the ECA’s own press release for comparison:



Press release 28 September 2010 ECA/10/19: Special report: Impact Assessments in the EU institutions: do they support decision-making?

Impact assessments are important challenges for national authorities, as well as for institutions and bodies at European level. If you find impact assessments worth deeper study, you can access the ECA Special report No 3/2010 (28 September 2010):



Impact assessments in the EU institutions: Do they support decision-making? (76 pages)

The ECA press release and the full report seem to be available in English, French and German.




Smart regulation communication



Those who want more on better or smart regulation can head towards the Commission’s well structured Better regulation web pages (although the latest documents have not always been added to the various pages).


Primary sources are better than secondary ones, so we set our course for the latest communication from the Commission.



Since the search among COM documents on Eur-Lex tells us that COM(2010) 543 is not available in English (=not posted), we have to be content with the English, French or German version available through the Key documents page under Better regulation. Here for the English language version of the Communication from the Commission:



Smart Regulation in the European Union; Brussels, 8.10.2010 COM(2010) 543 final (11 pages)


The Communication on smart regulation offers an updated view of efforts to improve the quality of regulation in and by the European Union. The document references make it a helpful source for those who want to get to grips with regulation policy at EU level in general, or delve into particular aspects.


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We have not reached a conclusive answer on the right amount of EU regulation, but we are offered the chance to become confused at a higher level.




Ralf Grahn


P.S. Grahnlaw welcomes comments relevant to the topic discussed in each blog post. However, the number of spam comments keeps skyrocketing. It is more difficult and time-consuming to eliminate them ‘ex post’ than to prevent them ‘ex ante’ (even this, a dreary chore). Here is the sad reason for comment moderation, so it may take a while before your valued facts and opinions appear.

It is easier to understand a language than to use it correctly. As Eurobloggers we could and should promote interaction among Europeans across linguistic and national borders. We can link to blogs and other sources in foreign languages. We can share different viewpoints with our readers, perhaps explaining the gist of the arguments.



If you are a reader, check out Bloggingportal.eu. The multilingual blog aggregator helps you become better informed about the European Union and the Council of Europe, and it offers you a fun way to improve your language skills.

Euroblogs can invite comments in different languages; those we are able to read, or the ones we understand the essentials of by using machine translation (bad, but fast and improving; often better into English than into other languages).

Grahnlaw has adopted a multilingual comment policy:

I do my best to read comments in Danish, Dutch, English, Finnish, French, German, Italian, Norwegian, Portuguese, Spanish or Swedish, even if the Grahnlaw blog and my possible replies are in English.

EU telecoms: Reaping the digital dividend vs costs of non-Europe

The 2987th Council meeting, in the Transport, Telecommunications and Energy (TTE) configuration from 17 to 18 December 2009 (document 17456/09), adopted conclusions on the digital dividend (page 22):

The digital dividend - Council conclusions

The Council adopted conclusions on transforming the digital dividend into social benefits and economic growth (17113/09).

The digital dividend is the result of the switchover from analogue to digital terrestrial television in Europe, which is expected to be finalised by the member states between now and the end of 2012. The purpose of the Council conclusions is to achieve a certain level of technical and political coordination among the member states with a view to harmonised use of the digital dividend.

The conclusions, in particular:

• highlight the fact that radio spectrum is a scarce resource that needs to be used efficiently,

• stress the importance of the digital dividend in helping to provide high-speed broadband services in rural areas,

• invite the member states to contribute to the development of a common EU approach towards spectrum coordination issues with third countries.

Council conclusions in detail




The summary conclusions referred to Council document 17113/09 Commission Communication - transforming the digital dividend into social benefits and economic growth - Adoption of Council conclusions (8 pages), where a background presentation is given with documentary references and the annexed Council conclusions agreed on are laid down in more detail.

The main issue is the more effective future use of the 800 MHz band for electronic communications services,


Commission proposal



The Council prefers to refer to its own document register, so he Commission communication “Transforming the digital dividend into social benefits and economic growth” transmitted to the Council on 30 October 2009 (document 15289/09) can be found through the register.



On the other hand, the same document can be found on the legal portal Eur-Lex, under Preparatory acts, choosing COM documents, then searching by year and number (if you know them exactly) or by year and month (if you know approximately).




Either way, the communication from the Commission: Transforming the digital dividend into social benefits and economic growth; Brussels, 28.10.2009 COM(2009) 586 final (12 pages), goes into much more detail to explain why the member states should act in a coordinated manner to reap the benefits of radio spectrum being freed for more valuable use than analogue terrestrial television broadcasting.


Coordinating action between sovereign member states is hard work even when highly beneficial, so the Commission distinguished clearly between those actions for which considerable support already existed, and which must be taken now to address the immediate policy objectives of economic growth and bridging the digital divide, and to provide clarity to Member States in the vanguard in the switch to digital, and those actions that required further discussion and agreement with the European Parliament and Council (cf. page 6).


One of the urgent measures was to achieve complete switch-off of analogue TV broadcasting by 2012 in the whole European Union. A second short term challenge was to design common principles (a template) regarding the use of the 800 MHz band of radio spectrum, an act of technical harmonisation (page 6 and 7).


Measures requiring long term strategic decisions included:

• Adoption of a common EU position with a view to more effective cross-border coordination with non-EU countries
• Achieving the EU-wide opening of the 790-862 MHz sub-band to electronic communications services
• Applying a minimum level of spectrum efficiency regarding future uses of the digital dividend


The Commission then turned to forward-looking initiatives that could lead to further increases in the potential size and usability of the digital dividend in the long term:

• Promoting collaboration between Member States to share future broadcasting network deployment plans (e.g. migration to MPEG-4 or DVB-T2).
• Requiring that all digital TV receivers sold in the EU after a certain date (to be defined) are ready to operate with a digital transmission compression standard of the new generation such as the H264/MPEG-4 AVC standard.
• Setting a minimum standard for the ability of digital TV receivers to resist interference (immunity to interference).
• Considering wider deployment of Single Frequency Networks (SFNs).
• Supporting research into ‘frequency-agile’ mobile communications systems.
• Ensuring the continuity of wireless microphone and similar applications by identifying future harmonised frequencies.
• Adopting a common position on the potential use of the ‘white spaces’ as a possible digital dividend.



Detailed studies


The fairly short official communication is available in the various official EU languages: here 22, i.e. all but Irish Gaelic.

As often is the case, the Commission’s proposals are accompanied and underpinned by more detailed studies. This time we find two Staff Working Documents:



Impact assessment SEC(2009) 1436 (47 pages), available in English




Executive summary of the impact assessment SEC(2009) 1437, available in 22 EU languages


This a common pattern: Legislative and other important proposals are translated into all official languages, as are summaries of the main findings, directed at officials of national administrations, enterprises of all sizes and the general public.

Lengthier background studies and the like, thought to be of interest to specialists mainly, are often made available only in English, perhaps in the Commission’s other working languages – French and German – as well.



Cost of non-harmonisation



The costs of membership in the European Union and of EU regulation are often denounced in strident tones, especially in Britain. One of the latest examples is a “study” by the anti-integrationist lobby group Open Europe: Top 100 EU regulations to cost UK economy £ 184 billion by 2020 (21 December 2009).

It is hard to find a word about the reasons for and especially the benefits of regulation, or reasoning about the relative merits of national and European level rules to protect life, health, workers, consumers, the environment, and so on.



This may or may not have been the reason for fellow blogger Nosemonkey to write the post Why regulating and legislating at an EU level is almost always a good thing (23 December 2009). Although Nosemonkey missed the possibility to reach Council decisions by qualified majority voting (QMV), his main argument about the benefits of common regulation hold true, and can actually be widened to cover businesses in addition to governments.


Let us take just one detail concerning an area few normal mortals even think about. The Commission’s study contains the following conclusion about the monetary value of the digital dividend:

One of the main conclusions of the Commission study is that the ‘private value’ that could be created if all Member States were to adopt the 790-862 MHz sub-band for electronic communications services under consistent conditions of use would be between at least EUR 17 billion and up to EUR 44 billion in the most optimistic case, depending on the assumed level of demand for different services.

Why is there so little talk about the costs of lacking European level regulation? Why is Open Europe’s propaganda taken at face value by so many?




Ralf Grahn



P.S. Get to know the emerging EU blogosphere Margot Wallström wrote about, conveniently aggregated by multilingual Bloggingportal.eu, our common “village well” for fact, opinion and gossip on European affairs.

EU telecoms package: “Better regulation”

The adopted EU Telecoms package modernises the legal framework for electronic communications and services in the European Union.

The existing EU regulatory framework for electronic communications networks and services comprises five Directives, the Framework Directive and the Specific Directives:

• Framework Directive 2002/21/EC
• Access Directive 2002/19/EC
• Authorisation Directive 2002/20/EC
• Universal Service Directive 2002/22/EC
• Directive on privacy and electronic communications 2002/58/EC


“Better Regulation Directive”


One part of the EU telecoms reform package was the overhaul of the three first directives mentioned above, namely the Framework Directive 2002/21/EC, the Access Directive 2002/19/EC and the Authorisation Directive 2002/20/EC:



DIRECTIVE 2009/140/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 25 November 2009 amending Directives 2002/21/EC on a common regulatory framework for electronic communications networks and services, 2002/19/EC on access to, and interconnection of, electronic communications networks and associated facilities, and 2002/20/EC on the authorisation of electronic communications networks and services. This text with EEA relevance was published in the Official Journal of the European Union (OJEU) 18.12.2009 L 337/37.


Materials


All but the most hardened readers might find the 76 recitals presenting the reasons for the reform and the text of the adopted amendments in Directive 2009/140 hard going, so here are a few references to more digestible materials.



Publication in the Official Journal was accompanied by a press release from the Commission, with links to earlier statements: New Telecoms Rules enter into force (IP 09/1966; 18 December 2009).



Commissioner Viviane Reding’s speech 23 November 2009 outlines the Commission’s view on regulatory issues in the electronic communications markets.


The European Commission’s proposals during the two year process are available on the web page: Legislative proposals.




Ralf Grahn



P.S. Read why Julien Frisch recommends Bloggingportal.eu, the multilingual aggregator of euroblogs (18 December 2009).

Body of European Regulators for Electronic Communications (BEREC)

Pan-European telecoms markets take one step towards more consistent regulation at EU level, by the establishment of a Body of European Regulators for Electronic Communications (BEREC), replacing the European Regulators Group (ERG) during the spring of 2010.


BEREC



REGULATION (EC) No 1211/2009 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 25 November 2009 establishing the Body of European Regulators for Electronic Communications (BEREC) and the Office. This text with EEA relevance was published OJEU 18.12.2009 L 337/1.


The aim of the Regulation 1211/2009 is to strengthen European Regulators Group (ERG) and its recognition in the EU regulatory framework as the Body of European Regulators for Electronic Communications (BEREC). BEREC is not a Community agency, nor does it have legal personality. BEREC replaces the ERG and acts as an exclusive forum for cooperation among national regulatory authorities (NRAs), and between NRAs and the Commission, in the exercise of the full range of their responsibilities under the EU regulatory framework. BEREC provides expertise and establishes confidence by virtue of its independence, the quality of its advice and information, the transparency of its procedures and methods of operation, and its diligence in performing its tasks:

CHAPTER I

ESTABLISHMENT


Article 1
Establishment1.

1. The Body of European Regulators for Electronic Communications (BEREC) is hereby established with the responsibilities laid down in this Regulation.

2. BEREC shall act within the scope of Directive 2002/21/EC (Framework Directive) and Directives 2002/19/EC, 2002/20/EC, 2002/22/EC and 2002/58/EC (Specific Directives), and of Regulation (EC) No 717/2007.

3. BEREC shall carry out its tasks independently, impartially and transparently. In all its activities, BEREC shall pursue the same objectives as those of the national regulatory authorities (NRAs), as set out in Article 8 of Directive 2002/21/EC (Framework Directive). In particular, BEREC shall contribute to the development and better functioning of the internal market for electronic communications networks and services, by aiming to ensure a consistent application of the EU regulatory framework for electronic communications.

4. BEREC shall draw upon expertise available in the NRAs and shall carry out its tasks in cooperation with NRAs and the Commission. BEREC shall promote cooperation between NRAs, and between NRAs and the Commission. Furthermore, BEREC shall advise the Commission, and upon request, the European Parliament and the Council.



CHAPTER II

ORGANISATION OF BEREC


Article 2
Role of BEREC

BEREC shall:

(a) develop and disseminate among NRAs regulatory best practice, such as common approaches, methodologies or guidelines on the implementation of the EU regulatory framework;

(b) on request, provide assistance to NRAs on regulatory issues;

(c) deliver opinions on the draft decisions, recommendations and guidelines of the Commission, referred to in this Regulation, the Framework Directive and the Specific Directives;

(d) issue reports and provide advice, upon a reasoned request of the Commission or on its own initiative, and deliver opinions to the European Parliament and the Council, upon a reasoned request or on its own initiative, on any matter regarding electronic communications within its competence;

(e) on request, assist the European Parliament, the Council, the Commission and the NRAs in relations, discussions and exchanges with third parties; and assist the Commission and NRAs in the dissemination of regulatory best practices to third parties.



Article 3
Tasks of BEREC1.

The tasks of BEREC shall be:

(a) to deliver opinions on draft measures of NRAs concerning market definition, the designation of undertakings with significant market power and the imposition of remedies, in accordance with Articles 7 and 7a of Directive 2002/21/EC (Framework Directive); and to cooperate and work together with the NRAs in accordance with Articles 7 and 7a of Directive 2002/21/EC (Framework Directive);

(b) to deliver opinions on draft recommendations and/or guidelines on the form, content and level of details to be given in notifications, in accordance with Article 7b of Directive 2002/21/EC (Framework Directive);

(c) to be consulted on draft recommendations on relevant product and service markets, in accordance with Article 15 of Directive 2002/21/EC (Framework Directive);

(d) to deliver opinions on draft decisions on the identification of transnational markets, in accordance with Article 15 of Directive 2002/21/EC (Framework Directive);

(e) on request, to provide assistance to NRAs, in the context of the analysis of the relevant market in accordance with Article 16 of Directive 2002/21/EC (Framework Directive);

(f) to deliver opinions on draft decisions and recommendations on harmonisation, in accordance with Article 19 of Directive 2002/21/EC (Framework Directive);

(g) to be consulted and to deliver opinions on cross-border disputes in accordance with Article 21 of Directive 2002/21/EC (Framework Directive);

(h) to deliver opinions on draft decisions authorising or preventing an NRA from taking exceptional measures, in accordance with Article 8 of Directive 2002/19/EC (Access Directive);

(i) to be consulted on draft measures relating to effective access to the emergency call number 112, in accordance with Article 26 of Directive 2002/22/EC (Universal Service Directive);

(j) to be consulted on draft measures relating to the effective implementation of the 116 numbering range, in particular the missing children hotline number 116000, in accordance with Article 27a of Directive 2002/22/EC (Universal Service Directive);

(k) to assist the Commission with the updating of Annex II to Directive 2002/19/EC (Access Directive), in accordance with Article 9 of that Directive;

(l) on request, to provide assistance to NRAs on issues relating to fraud or the misuse of numbering resources within the Community, in particular for cross-border services;

(m) to deliver opinions aiming to ensure the development of common rules and requirements for providers of cross-border business services;

(n) to monitor and report on the electronic communications sector, and publish an annual report on developments in that sector.

2. BEREC may, upon a reasoned request from the Commission, decide unanimously to take on other specific tasks necessary for the accomplishment of its role within the scope defined in Article 1(2).

3. NRAs and the Commission shall take the utmost account of any opinion, recommendation, guidelines, advice or regulatory best practice adopted by BEREC. BEREC may, where appropriate, consult the relevant national competition authorities before issuing its opinion to the Commission.

ERG



Information about the work of the European Regulators Group (ERG) is on offer on the ERG web site, including the IRG/ERG Work Programme 2010:

Under the changes to the regulatory framework, BEREC will replace ERG early in 2010. BEREC will have a statutory duty to consult on its work programme. As this cannot be done until BEREC is brought into being, the IRG/ERG Work Programme will provide the foundation for the eventual BEREC work programme.

Ralf Grahn



P.S. Read why Julien Frisch recommends Bloggingportal.eu, the multilingual aggregator of euroblogs (18 December 2009).

EU: Special legislative procedure (IX; EP powers)

When a special legislative procedure is mentioned in the Treaty of Lisbon, it is normally an indication that at least one member state of the European Union has been reticent about attributing powers to the EU and even more negative about conferring ‘equal’ powers to the European Parliament, if the EU ever legislates on the issues in question.

Therefore, we have looked at the areas in the context of our series on the Council’s competences, because the position of the European Parliament is usually marginal.

But there are a few notable exceptions, in questions closely related to the European Parliament. In these areas the EP initiates legislation according to a special legislative procedure. Our first example was mentioned in post VII of this series. Here a few more examples will follow.

Our Odyssey of the special legislative procedure continues through the consolidated version of the Lisbon Treaty, officially the Consolidated versions of the Treaty on European Union and the Treaty on the Functioning of the European Union, published in the Official Journal of the European Union (OJEU) 9.5.2008 C 115.



***

Initiated by European Parliament


MEPs’ Statute

The possible European election code or at least the common principles for the European elections, as well as the Duff report on possible future reforms, were mentioned in post number VII on the special legislative procedure. Here the Council is still the legislator, with the consent of the European Parliament (and possibly on its initiative).

But one of the rare instances of legislation officially initiated by the European Parliament is found in the second paragraph of Article 223 of the Treaty on the Functioning of the European Union (TFEU).

The regulations and general conditions governing the performance of the duties of Members of the European Parliament (Members Statute) are laid down by a special legislative procedure. The Commission gives an opinion and the Council’s approval is needed, by unanimity if the rules relate to taxation. The provision can be seen as an expression of the EP’s internal autonomy.



Article 223(2) TFEU
(ex Article 190(4) and (5) TEC)


1. The European Parliament shall draw up a proposal 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 or in accordance with principles common to all Member States.

The Council, acting unanimously in accordance with a special legislative procedure and after obtaining the consent of the European Parliament, which shall act by a majority of its component Members, shall lay down the necessary provisions. These provisions shall enter into force following their approval by the Member States in accordance with their respective constitutional requirements.


2. The European Parliament, acting by means of regulations on its own initiative in accordance with a special legislative procedure after seeking an opinion from the Commission and with the approval of the Council, shall lay down the regulations and general conditions governing the performance of the duties of its Members. All rules or conditions relating to the taxation of Members or former Members shall require unanimity within the Council.


***


Right of inquiry



Article 226 TFEU lays down the right for the European Parliament to set up a temporary Committee of Inquiry to investigate alleged contraventions or maladministration in the implementation of EU law.

The European Parliament creates the detailed rules concerning the right of inquiry by a special legislative procedure, but it needs the consent of the Council and the Commission, as laid down in the third subparagraph. The provision can be seen as an expression of the EP’s internal autonomy:


The detailed provisions governing the exercise of the right of inquiry shall be determined by the European Parliament, acting by means of regulations on its own initiative in accordance with a special legislative procedure, after obtaining the consent of the Council and the Commission.



***


European Ombudsman

The European Ombudsman, who examines complaints from citizens, works independently but resides in conjunction with the European Parliament. Therefore the EP has been given the leading role in devising the rules concerning the Ombudsman’s duties:


Article 228(4) TFEU

4. The European Parliament acting by means of regulations on its own initiative in accordance with a special legislative procedure shall, after seeking an opinion from the Commission and with the approval of the Council, lay down the regulations and general conditions governing the performance of the Ombudsman's duties.



Ralf Grahn

EU: New Regulation on cross-border payments

The Single Euro Payments Area (SEPA) takes a further step towards completion. The Payment Services Directive (PSD) 2007/64/EC, which will be implemented from 1 November 2009, is going to be complemented by a new Regulation on cross-border payments, which extends the principle of equal charges for national and cross-border payments to direct debits.

***

European Parliament

The European Parliament has approved the text of a new Regulation on cross-border payments. At this stage, the adopted text can be found in the compilation of resolutions adopted on Friday 24 April 2009 (from page 129).


Here are the exact references:

P6_TA-PROV(2009)0321

Cross-border payments in the Community ***I

European Parliament legislative resolution of 24 April 2009 on the proposal for a regulation of the European Parliament and of the Council on cross-border payments in the Community (COM(2008)0640 – C6-0352/2008 – 2008/0194(COD))
(Codecision procedure: first reading)

***

Scope

Article 1 of the new Regulation presents its scope:

Article 1

Subject matter and scope

1. This Regulation lays down rules on cross-border payments within the Community, ensuring that charges for those payments are the same as those for payments in the same currency within a Member State.

2. This Regulation applies to cross-border payments, in accordance with the provisions of Directive 2007/64/EC, which are denominated in euro or in the national currencies of the Member States which have notified their intention to extend the application of the Regulation to their national currency, in accordance with Article 14.

3. This Regulation does not apply to payments made by payment service providers for their own account or on behalf of other payment service providers.

4. Articles 6, 7 and 8 lay down rules regarding direct debit transactions denominated in euro between the payment service providers of the payee and of the payer.


***

Commission response

The Commission issued an explanatory press release, which welcomed the EP resolution:

European Commission welcomes the European Parliament’s adoption of two proposals in the area of payments (on e-money and cross-border payments) (24 April 2009; IP/09/637)



***

Final adoption

The new Regulation is now heading for final adoption by the Council and subsequent publication in the Official Journal of the European Union (OJEU).


Ralf Grahn

European Central Bank IIa: Article III-79 draft Constitution

The European System of Central Banks (ESCB) and the European Central Bank (ECB) were part of the all-encompassing draft Treaty establishing a Constitution for Europe.

But did the European Convention propose any material or stylistic change to the existing provisions?

We look at the contents of the institutional basics in draft Constitution Article III-79.

***

Article III-79 of the draft Constitution, proposed by the European Convention, corresponds with Article 107 of the Treaty establishing the European Community (TEC), and it is located in Part III ‘The policies and functioning of the Union’, Title III ‘Internal policies and action’, Chapter II ‘Economic and monetary policy’, Section 2 ‘Monetary policy’.

Article III-79 draft Treaty establishing a Constitution for Europe is found in OJ 18.7.2003 C 169/42─43:

Article III-79 Draft Constitution

1. The European System of Central Banks shall be composed of the European Central Bank and of the national central banks.

2. The European Central Bank shall have legal personality.

3. The European System of Central Banks shall be governed by the decision-making bodies of the European Central Bank, which shall be the Governing Council and the Executive Board.

4. The Statute of the European System of Central Banks is laid down in the Protocol on the Statute of the European System of Central Banks and the European Central Bank.

5. Articles 5.1, 5.2, 5.3, 17, 18, 19.1, 22, 23, 24, 26, 32.2, 32.3, 32.4, 32.6, 33.1(a) and 36 of the Statute of the European System of Central Banks and the European Central Bank may be amended by European laws:

(a) either on a proposal from the Commission after consultation of the European Central Bank;

(b) or on a recommendation from the European Central Bank after consultation of the Commission.

6. The Council of Ministers shall adopt the European regulations and decisions laying down the measures referred to in Articles 4, 5.4, 19.2, 20, 28.1, 29.2, 30.4 and 34.3 of the Statute of the System of European Central Banks and the European Central Bank. It shall act after consulting the European Parliament:

(a) either on a proposal from the Commission after consulting the European Central Bank;

(b) or on a recommendation from the European Central Bank after consulting the Commission.

***

Texts compared

The following differences can be noted between the current Article 107 TEC and Article III-79 draft Constitution:

The draft Constitution spells out the acronyms ESCB and ECB in full, for ease of reading.
In paragraph 4, the draft Constitution defined more exactly in which Protocol the ESCB Statute lay hidden; namely ‘the Protocol on the Statute of the European System of Central Banks and the European Central Bank’.

In paragraph 5, the simplified revision of certain provisions of the ESCB Statute referred to the existing Articles. This left the detailed work to the coming intergovernmental conference, if changes to the Statute were to be made. The Convention, preoccupied by the main institutional building-blocks of the European Union, left only a rudimentary collection of eight draft protocols and declarations in all.

The legal instruments to be used were defined as European laws. The two-pronged approach, either a recommendation from the ECB or a proposal from the Commission, was maintained, although they were mentioned in reverse order. No mention was made of the European Parliament, whereas the assent of the EP is required currently. On the other hand, paragraph 5 did not say that the Statute amendments were to be adopted by the Council (alone).

Was it a slip to drop the words ‘by the Council’, or did the Convention really mean to introduce the ordinary legislative procedure (European laws, with no qualification) for these enumerated simplified changes to the ESCB Statute?

On the other hand, although the potential scope for changes looked insignificant, when we studied Article 107(5) TEC, the ESCB Statute is, in principle, a treaty level document, so any exemption to normal treaty amending procedures (IGC and ratifications) might be seen as a serious matter.

The more important complementary legislation in paragraph 6 was re-written in the same manner as the preceding paragraph, but here the European regulations and decisions were to be adopted by the Council of Ministers, after consulting the European Parliament (as currently).

***
The next post is going to look at some legal materials concerning the European Convention proposal. With luck, we might even find an answer to the baffling legislative ‘minutiae’ mentioned above.


Ralf Grahn

EU TFEU: State aid regulations

The EU Treaty of Lisbon allows the Council to adopt regulations on state aid, including notifications and block exemptions.


***

Article 109 of the Treaty on the Functioning of the European Union (TFEU) is found in the consolidated version of the Treaty on European Union and the Treaty on the Functioning of the European Union, published in the Official Journal of the European Union, OJ 9.5.2008 C 115/93:

Part Three ‘Policies and internal actions of the Union’

Title VII Common rules on competition, taxation and approximation of laws

Chapter 1 Rules on competition

Section 2 Aids granted by states

Article 109 TFEU
(ex Article 89 TEC)

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

***

In Article 2, point 78 of the Treaty of Lisbon (ToL) the IGC 2007 amended Article 88 of the Treaty establishing the European Community (TEC) and in point 79 it dealt with Article 93 TEC. This means that no specific amendments were made to Article 89 TEC. Cf. OJ 17.12.2007 C 306/69.

***

The TFEU table of equivalences tells us that Article 89 TEC first became Article 89 TFEU (ToL) in the original Treaty of Lisbon, but later renumbered Article 109 TFEU in the consolidated version (OJ 17.12.2007 C 306/211).

***

The current Article 89 of the Treaty establishing the European Community (TEC) is found under Title VI ‘Common rules on competition, taxation and approximation of laws’, Chapter 1 ‘Rules on competition’, Section 2 ‘Aids granted by states’, in the latest consolidated version of the treaties in force (OJ 29.12.2006 C 321 E/78).

Readers, who need the current Article 88 TEC or want to compare the TEC and TFEU texts, notice that the words ‘acting by a qualified majority’ have been deleted according to horizontal amendment 2(d) mentioned in Article 2 of the Treaty of Lisbon. Cf. OJ 17.12.2007 C 306/41.

Both the current TEC and the future TFEU Article refer to other provisions, but each treaty has its own numbering.


Article 89 TEC

The Council, acting by a qualified majority on a proposal from the Commission and after consulting the European Parliament, may make any appropriate regulations for the application of Articles 87 and 88 and may in particular determine the conditions in which Article 88(3) shall apply and the categories of aid exempted from this procedure.

***

We have now seen the starting line (the TEC in force) and finishing line (contents and numbering of the TFUE when it has entered into force), which are almost the same.

Still, for the sake of systematic comparison, we look at the arcana of the Article during the intervening treaty reform stages.

First, we turn to the European Convention, the closest thing to a constituent assembly EU citizens have had. The Article in question is located among the provisions on state aid in Part III ‘The policies and functioning of the Union’, Title III ‘Internal policies and action’, Chapter I ‘Internal market’, Section 5 ‘Rules on competition’, within Subsection 2 ‘Aids granted by Member States’.

Some differences, such as the ‘Council of Ministers’ and ‘European regulations’ reflect the terminology of the draft Treaty establishing a Constitution for Europe and some are different choices of words in Article III-58, but none of them have material impact (OJ 18.7.2003 C 169/37):

Article III-58 Draft Constitution

The Council of Ministers, on a proposal from the Commission, may adopt European regulations for the application of Articles III-56 and III-57 and for determining in particular the conditions in which Article III-57(3) shall apply and the categories of aid exempted from this procedure. It shall act after consulting the European Parliament.

***

In the Treaty establishing a Constitution for Europe the provisions on state aid were located in Part III ‘The policies and functioning of the Union’, Title III ‘Internal policies and action’, Chapter I ‘Internal market’, Section 5 ‘Rules on competition’, with Subsection 2 ‘Aid granted by Member States’.

In Article III-169 of the Constitutional Treaty the IGC 2004 introduced no material changes to the draft Constitution. The ‘Council of Ministers’ had contracted to ‘Council’ and ‘this procedure’ was expressed as ‘the procedure provided for in Article 168(3)’.

The referrals were, of course, renumbered.

Because the Constitutional Treaty is the preferred object of comparison for many readers, Article III-169 is presented in full, as agreed by the IGC 2004 (OJ 16.12.2004 C 310/73):

Article III-169 Constitution

The Council, on a proposal from the Commission, may adopt European regulations for the application of Articles III-167 and III-168 and for determining in particular the conditions in which Article III-168(3) shall apply and the categories of aid exempted from the procedure provided for in Article 168(3). It shall act after consulting the European Parliament.

***

What has been said about Article 109 TFEU?


United Kingdom

Professor Steve Peers covered the Treaty of Lisbon in a number of Statewatch Analyses. ‘EU Reform Treaty Analysis no. 3.3: Revised text of Part Three, Titles I to VI of the Treaty establishing the European Community (TEC): Internal Market and competition’ (Version 2, 23 October 2007) includes the current Title VI Common rules on competition, taxation and approximation of laws.

Peers highlighted the amendments to Article 89 TEC by Article 89 TFEU (ToL), to be renumbered Article 109 TFEU in the consolidated version, without comment (page 28).

The analysis 3.3 and other useful Statewatch analyses are available through:

http://www.statewatch.org/euconstitution.htm


***

The Foreign and Commonwealth Office (FCO) offers a convenient source of brief annotations on Lisbon Treaty amendments in ‘A comparative table of the current EC and EU treaties as amended by the Treaty of Lisbon’ (Command Paper 7311, published 21 January 2008). It offers the following comment on Article 109 TFEU, Article 89 TFEU (ToL) in the original Lisbon Treaty (page 11):

“Unchanged from Article 89 TEC.”

The FCO comparative table is available at:

http://www.official-documents.gov.uk/document/cm73/7311/7311.asp

***

The UK House of Commons Library Research Paper 07/86 ‘The Treaty of Lisbon: amendments to the Treaty establishing the European Community’ (published 6 December 2007) discussed competition, including the state aid provisions, on pages 57 to 60, but it offered no comment on Article 89 TEC and TFEU (ToL).

The Library Research Paper 07/86 is available at:

http://www.parliament.uk/commons/lib/research/rp2007/rp07-086.pdf

***

The House of Lords European Union Committee report ‘The Treaty of Lisbon: an impact assessment, Volume I: Report’ (HL Paper 62-I, published 13 March 2008) discussed the internal market and competition on pages 218 and 219, but I found no reference to Article 109 TFEU (Article 89 TEC and ToL) in this context.

The report is accessible at:

http://www.publications.parliament.uk/pa/ld200708/ldselect/ldeucom/62/62.pdf

In case anyone wants to dig deeper, state aid is discussed ‘passim’ in Volume II of the report ‘Evidence’.


***

Sweden

The consultation paper ’Lissabonfördraget’ is still valuable as a description of the Lisbon Treaty amendments, and it is available at:

http://www.regeringen.se/content/1/c6/09/49/81/107aa077.pdf

The Swedish government’s draft ratification bill ‘Lagrådsremiss – Lissabonfördraget’, was published 29 May 2008 and sent to the Council on Legislation (Lagrådet) for an expert opinion. The draft deals with the EU’s internal policy areas in Chapter 23 ‘Unionens interna åtgärder’, and section 23.1 presents the internal market (Inre marknaden), on pages 175 to 181, but I found no mention of Article 89 TEC and ToL there.

In a section discussing services of general economic interest (21.2 Tjänster av allmänt ekonomiskt intresse) the government of Sweden remarked that the legal base for block exemptions, Article 89 TEC, can be used to clarify the financing conditions of such services (pages 165–166):

”I artikel 16 klargörs att den artikeln inte påverkar fördragets regler om statsstöd och konkurrens i artiklarna 73, 86 och 87 i EG-fördraget. Företag som anförtrotts att utföra tjänster av allmänt ekonomiskt intresse omfattas av bestämmelserna i EG-fördraget – särskilt konkurrensbestämmelserna – i den utsträckning som dessa bestämmelser inte hindrar företaget att fullgöra sina uppgifter. Handelns utveckling får dock inte påverkas i en omfattning som strider mot gemenskapens intresse (artikel 86 i EG-fördraget). I den mån finansieringen av tjänsterna kan tolkas som statligt stöd kan den rättsliga grunden för gruppundantag (artikel 89 i EG-fördraget) utnyttjas för att klargöra finansieringsvillkoren.”

The draft bill ‘Lagrådsremiss – Lissabonfördraget’ can be downloaded through:

http://www.regeringen.se/sb/d/5676/a/106277

***

Finland

Even the Finnish ratification bill, ‘Hallituksen esitys Eduskunnalle Euroopan unionista tehdyn sopimuksen ja Euroopan yhteisön perustamissopimuksen muuttamisesta tehdyn Lissabonin sopimuksen hyväksymisestä ja laiksi sen lainsäädännön alaan kuuluvien määräysten voimaansaattamisesta’ (HE 23/2008 vp), is quite laconic in its statement about the unchanged nature of Article 89 TFEU (ToL), renumbered Article 109 TFEU (page 208):

”89 artiklaa (uusi 109 artikla), jossa määrätään 87 ja 88 artiklan soveltamista koskevien neuvoston asetusten antamisesta, ei muuteta.”

The Finnish ratification bill is available at:

http://www.finlex.fi/fi/esitykset/he/2008/20080023.pdf


The Swedish language version of the ratification bill ‘Regeringens proposition till Riksdagen med förslag om godkännande av Lissabonfördraget om ändring av fördraget om Europeiska unionen och fördraget om upprättandet av Europeiska gemenskapen och till lag om sättande i kraft av de bestämmelser i fördraget som hör till området för lagstiftningen’ (RP 23/2008 rd), is equally terse in its description of Article 89 TFEU (ToL), the future Article 109 TFEU, on page 211:

”Artikel 89 (blivande artikel 109), där det föreskrivs om att rådet får anta de förordningar som behövs för tilämpningen av artiklarna 87 och 88, ändras inte.”

The ratification bill in Swedish can be accessed at:

http://www.finlex.fi/sv/esitykset/he/2008/20080023.pdf

***

Knowing that the Council’s powers are undiminished at the treaty level, the reader can now turn to the secondary legislation on state aid emanating from present and future competences.


Ralf Grahn

EU TFEU: Competition regulations and directives

The Council’s powers to lay down competition rules are unaffected by the EU Treaty of Lisbon.


***

Article 103 of the Treaty on the Functioning of the European Union (TFEU) is found in the consolidated version of the Treaty on European Union and the Treaty on the Functioning of the European Union, published in the Official Journal of the European Union, OJ 9.5.2008 C 115/89–90:

Part Three ‘Policies and internal actions of the Union’

Title VII Common rules on competition, taxation and approximation of laws

Chapter 1 Rules on competition

Section 1 Rules applying to undertakings

Article 103 TFEU
(ex Article 83 TEC)

1. The appropriate regulations or directives to give effect to the principles set out in Articles 101 and 102 shall be laid down by the Council, on a proposal from the Commission and after consulting the European Parliament.

2. The regulations or directives referred to in paragraph 1 shall be designed in particular:

(a) to ensure compliance with the prohibitions laid down in Article 101(1) and in Article 102 by making provision for fines and periodic penalty payments;

(b) to lay down detailed rules for the application of Article 101(3), taking into account the need to ensure effective supervision on the one hand, and to simplify administration to the greatest possible extent on the other;

(c) to define, if need be, in the various branches of the economy, the scope of the provisions of Articles 101 and 102;

(d) to define the respective functions of the Commission and of the Court of Justice of the European Union in applying the provisions laid down in this paragraph;

(e) to determine the relationship between national laws and the provisions contained in this Section or adopted pursuant to this Article.

***

In Article 2, point 75 of the Treaty of Lisbon (ToL) the intergovernmental conference (IGC 2007) laid out the specific amendments to Article 80 TEC and point 76 amended Article 85 TEC. Thus, no specific amendments were made to Article 83 TEC (OJ 17.12.2007 C 306/68).

***

The TFEU table of equivalences tells us that Article 83 TEC first became Article 83 TFEU (ToL) in the original Treaty of LIsbon, but later renumbered Article 103 TFEU in the consolidated version (OJ 17.12.2007 C 306/211).

***

The current Article 83 of the Treaty establishing the European Community (TEC) is found under Title VI ‘Common rules on competition, taxation and approximation of laws’, Chapter 1 ‘Rules on competition’, Section 1 ‘Rules applying to undertakings’, in the latest consolidated version of the treaties in force (OJ 29.12.2006 C 321 E/75).

In Article 103(1) TFEU the words ‘acting by a qualified majority’ were deleted in accordance with the Article 2 of the Treaty of Lisbon, horizontal amendment 2(d), and in Article 103(2)(d) the ‘Court of Justice’ became the ‘Court of Justice of the European Union’, as stated in horizontal amendment 7. Cf. OJ 17.12.2007 C 306/41 and 43.

In addition, the Articles referred to throughout have been renumbered in the amending treaty. For ease of use, Article 83 TEC is reproduced here in full:

Article 83 TEC

1. The appropriate regulations or directives to give effect to the principles set out in Articles 81 and 82 shall be laid down by the Council, acting by a qualified majority on a proposal from the Commission and after consulting the European Parliament.

2. The regulations or directives referred to in paragraph 1 shall be designed in particular:

(a) to ensure compliance with the prohibitions laid down in Article 81(1) and in Article 82 by making provision for fines and periodic penalty payments;

(b) to lay down detailed rules for the application of Article 81(3), taking into account the need to ensure effective supervision on the one hand, and to simplify administration to the greatest possible extent on the other;

(c) to define, if need be, in the various branches of the economy, the scope of the provisions of Articles 81 and 82;

(d) to define the respective functions of the Commission and of the Court of Justice in applying the provisions laid down in this paragraph;

(e) to determine the relationship between national laws and the provisions contained in this Section or adopted pursuant to this Article.

***

For the sake of a systematic comparison, we look at the Article during the previous treaty reform stages.

First, we turn to the European Convention, which located the provisions on competition in Part III ‘The policies and functioning of the Union’, Title III ‘Internal policies and action’, Chapter I ‘Internal market’, Section 5 ‘Rules on competition’, with Subsection 1 ‘Rules applying to undertakings’.

The draft Treaty establishing a Constitution for Europe the first paragraph was slightly reworded and the draft used the term ‘Council of Ministers’ and the legal instruments to be used pursuant to Article III-52 were defined as ‘European regulations’. Naturally, the Articles referred to were numbered differently. In case someone wants to study the draft provisions more closely, the text looked like this (OJ 18.7.2003 C 169/36):

Article III-52 Draft Constitution

1. The Council of Ministers, on a proposal from the Commission, shall adopt the European regulations to give effect to the principles set out in Articles III-50 and III-51. It shall act after consulting the European Parliament.

2. The European regulations referred to in paragraph 1 shall be designed in particular:

(a) to ensure compliance with the prohibitions laid down in Article III-50(1) and in Article III-51 by making provision for fines and periodic penalty payments;

(b) to lay down detailed rules for the application of Article III-50(3), taking into account the need to ensure effective supervision on the one hand, and to simplify administration to the greatest possible extent on the other;

(c) to define, if need be, in the various branches of the economy, the scope of the provisions of Articles III-50 and III-51;

(d) to define the respective functions of the Commission and of the Court of Justice in applying the provisions laid down in this paragraph;

(e) to determine the relationship between national laws and this Section or the European regulations adopted pursuant to this Article.

***

The location of Article III-162 of the Treaty establishing a Constitution for Europe was the same as for the corresponding provision of the draft (OJ 16.12.2004 C 310/69–70).

The ‘Council of Ministers’ became the ‘Council’, ‘Such regulations’ replaced ‘The European regulations referred to in paragraph 1’, the ‘Court of Justice of the European Union’ replaced the ‘Court of Justice’ and ‘national laws and this Section’ became ‘Member States’ laws and this Subsection’.

We take note of the fact that (European) regulations were the intended legal instruments. The numbering of the Articles referred to was different from the draft:

Article III-163 Constitution

The Council, on a proposal from the Commission, shall adopt the European regulations to give effect to the principles set out in Articles III‑161 and III‑162. It shall act after consulting the European Parliament.

Such regulations shall be designed in particular:

(a) to ensure compliance with the prohibitions laid down in Article III-161(1) and in Article III-162 by making provision for fines and periodic penalty payments;

(b) to lay down detailed rules for the application of Article III-161(3), taking into account the need to ensure effective supervision on the one hand, and to simplify administration to the greatest possible extent on the other;

(c) to define, if need be, in the various branches of the economy, the scope of Articles III-161 and III-162;

(d) to define the respective functions of the Commission and of the Court of Justice of the European Union in applying the provisions laid down in this paragraph;

(e) to determine the relationship between Member States' laws and this Subsection as well as the European regulations adopted pursuant to this Article.

***

We have seen that Article 103 TFEU, content to make only horizontal and technical adjustments, is almost exactly the same as the current Article 83 TEC. Thus, the legal instruments are still described as ‘regulations or directives’.

***


What has been said about Article 103 TFEU?


United Kingdom

Professor Steve Peers covered the Treaty of Lisbon in a number of Statewatch Analyses. ‘EU Reform Treaty Analysis no. 3.3: Revised text of Part Three, Titles I to VI of the Treaty establishing the European Community (TEC): Internal Market and competition’ (Version 2, 23 October 2007) includes the current Title VI Common rules on competition, taxation and approximation of laws.

Peers highlighted the amendments to Article 83 TEC and TFEU (ToL), to be renumbered Article 103 TFEU in the consolidated version, without comment (page 25).

The analysis 3.3 and other useful Statewatch analyses are available through:

http://www.statewatch.org/euconstitution.htm

***

The Foreign and Commonwealth Office (FCO) offers a convenient source of brief annotations on Lisbon Treaty amendments in ‘A comparative table of the current EC and EU treaties as amended by the Treaty of Lisbon’ (Command Paper 7311, published 21 January 2008). It offers the following comment on Article 103 TFEU, Article 83 TFEU (ToL) in the original Lisbon Treaty (page 11):

“Unchanged from Article 83 TEC.”

The FCO comparative table is available at:

http://www.official-documents.gov.uk/document/cm73/7311/7311.asp

***

The UK House of Commons Library Research Paper 07/86 ‘The Treaty of Lisbon: amendments to the Treaty establishing the European Community’ (published 6 December 2007) discussed competition on page 57 to 60. It commented on Articles 81 and 82 as well as Article 85 TEC and ToL on page 58, but Article 83 TEC and ToL drew no comment.

The Library Research Paper 07/86 is available at:

http://www.parliament.uk/commons/lib/research/rp2007/rp07-086.pdf

***

The House of Lords European Union Committee report ‘The Treaty of Lisbon: an impact assessment, Volume I: Report’ (HL Paper 62-I, published 13 March 2008) discussed the internal market and competition on pages 218 and 219.

The main discussion centred around concerns about the removal of ‘free and undistorted competition’ (according to Article I-3(2) of the Constitutional Treaty objectives), but the Committee offered the following statement on the contents of the competition provisions (page 218):

“9.14. The rules on competition contained in previous treaties would be unchanged by the Lisbon Treaty. Articles 101–103 of the TFEU are the same as Articles 81–83 of the TEC. They give the EU power to legislate to combat practices “which have as their object or effect the prevention, restriction or distortion of competition”.

The report is accessible at:

http://www.publications.parliament.uk/pa/ld200708/ldselect/ldeucom/62/62.pdf

***

Sweden

The consultation paper of the government of Sweden, ‘Lissabonfördraget; Statsrådsberedningen, Departementsserien (Ds), Ds 2007:48’ published 20 December 2007, deals with the internal market on pages 261 to 269, ’22.1 Inre marknaden’. There is a brief description of the existing competition rules, Articles 81 to 89 TEC, on page 262.

On pages 265 to 266 the consultation paper explains the amendments to the competition rules (Konkurrensregler), but there are no specific comments on Article 83 TFEU (ToL).

The consultation paper ’Lissabonfördraget’ is available at:

http://www.regeringen.se/content/1/c6/09/49/81/107aa077.pdf

***

Finland

The Finnish ratification bill, ‘Hallituksen esitys Eduskunnalle Euroopan unionista tehdyn sopimuksen ja Euroopan yhteisön perustamissopimuksen muuttamisesta tehdyn Lissabonin sopimuksen hyväksymisestä ja laiksi sen lainsäädännön alaan kuuluvien määräysten voimaansaattamisesta’ (HE 23/2008 vp), includes only a short comment on the unchanged nature of Article 83 TFEU (ToL), renumbered Article 103 TFEU (on page 207):

”83 artiklaa (uusi 103 artikla), jossa määrätään 81 ja 82 artiklassa tarkoitettujen periaatteiden soveltamista koskevien neuvoston asetusten ja direktiivien antamisesta, ei muuteta.”


The Finnish ratification bill is available at:

http://www.finlex.fi/fi/esitykset/he/2008/20080023.pdf

The Swedish language version of the ratification bill ‘Regeringens proposition till Riksdagen med förslag om godkännande av Lissabonfördraget om ändring av fördraget om Europeiska unionen och fördraget om upprättandet av Europeiska gemenskapen och till lag om sättande i kraft av de bestämmelser i fördraget som hör till området för lagstiftningen’ (RP 23/2008 rd), offers the same brief observation about Article 83 TFEU (ToL), the future Article 103 TFEU, on page 210:

”Artikel 83 (blivande artikel 103), där det föreskrivs om fastställandet av de förordningar och direktiv som gäller de principer som anges i artiklarna 81 och 82, ändras inte.”

The ratification bill in Swedish can be accessed at:

http://www.finlex.fi/sv/esitykset/he/2008/20080023.pdf




Ralf Grahn