The aim of new European Community (European Union) Defence Transfers Directive is to cut red tape, reducing waste and delays, when defence-related products are bought and sold within the European Union.
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The Defence Transfers Directive was adopted by the European Parliament on 16 December 2008. The new Directive is still waiting for first reading (formal adoption) by the Council, but since the amendments have been agreed between the European Parliament and the Council, the EP text should be the same as the one to be published in the Official Journal of the European Union.
The Defence Transfers Directive, officially Directive 2009/.../EC of the European Parliament and of the Council on simplifying terms and conditions of transfers of defence-related products within the Community, is available here:
http://www.europarl.europa.eu/sides/getDoc.do;jsessionid=FE68FF66A91E1C708351395837549126.node1?pubRef=-//EP//TEXT+TA+P6-TA-2008-0603+0+DOC+XML+V0//EN#BKMD-29
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Related blog posts
We have discussed matters relating to defence and security procurement, national security interests and treaty principles in earlier blog posts, which may be of interest to our readers:
· EU Procurement Directive: Secret contracts and security measures
· EU defence industry and market: Is there a future?
· EU Law: Defence equipment transfers
· EU Law: New Defence Procurement Directive
· EU Law: Defence Transfers Directive
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Subject matter
Aim
The aim of the new Defence Transfers Directive is to make intra-Community transfers of defence-related products more compatible with the internal market, by simplifying rules and procedures.
Recitals 1 to 4 of the Directive explain the background:
(1) The Treaty provides for the establishment of an internal market, including the abolition between Member States of obstacles to freedom of movement for goods and services, and the institution of a system ensuring that competition in the common market is not distorted.
(2) The Treaty provisions establishing the internal market apply to all goods and services provided against remuneration including defence-related products but do not preclude Member States under certain conditions from taking other measures in individual cases where they consider it necessary to protect essential interests of their security.
(3) The laws, regulations and administrative measures in Member States concerning the transfer of defence-related products within the Community contain disparities, which may impede the free movement of defence-related products and may distort competition within the internal market, hampering innovation, industrial cooperation and the competitiveness of the defence industry in the European Union.
(4) The objectives pursued generally by the laws and regulations of Member States include the preservation of human rights, peace, security and stability through systems of strict control and restriction of exportation and proliferation of defence-related products to third countries as well as to other Member States.
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Transfer and export policies
The member states of the European Union still decide on their transfer and export policies with regard to defence-related products.
Recitals 6 and 7 explain that the Defence Transfers Directive does not limit the transfer policies or export policies of member states:
(6) Those laws and regulations of Member States therefore need to be harmonised in such a way as to simplify the intra-community transfer of defence-related products in order to ensure the proper functioning of the internal market. This Directive only deals with rules and procedures as far as defence-related products are concerned, and does not consequently affect transfer policies of Member States.
(7) Harmonisation of those laws and regulations of Member States should not prejudice international obligations and commitments of Member States or their discretion as regards policy on the export of defence-related products.
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Treaty derogations on security grounds
The member states can still evoke their (essential) security interests according to Articles 30 and 296(1)(b) and 296(1)(a) of the Treaty establishing the European Community (TEC), although the provisions and ECJ case law limit the scope of such derogations. In other words, exceptions have to be justified.
The derogations in Article 30 TEC include prohibitions or restrictions on imports, exports or goods in transit on grounds of public policy and public security.
Article 296(1)(b) TEC concerns the protection of essential security interests of a member state in connection with the production or trade in arms, munitions and war material (as defined by the Council on 15 April 1958).
Article 296(1)(a) allows a member state to withhold information, if the disclosure would be contrary to its essential security interests.
Recital 5 of the Defence Transfers Directive acknowledges that there are legitimate exceptions to the free movement of goods and services, on a case by case basis. The treaty derogations still apply, if the conditions are met:
(5) Such restrictions on the movement of defence-related products within the Community cannot be abolished generally through direct application of the principles of free movement of goods and services provided by the Treaty as those restrictions may be justified on a case by case basis in accordance with Articles 30 or 296 of the Treaty, which continue to be applicable by Member States provided their conditions are met.
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First and second pillar
The Defence Transfers Directive is based on the first pillar (Community pillar), with its internal market rules. The sale of defence-related products within the European Community (European Union) is harmonised to some extent, but matters relating to the common foreign and security policy (CFSP), including the common security and defence policy (CSDP), belong to the intergovernmental second pillar of the European Union.
The fourth paragraph states that the minimum rules of the Directive are no obstacle to further intergovernmental cooperation in this field.
This is in line with the presentation given by Recital 28:
(28) Member States should remain entitled to pursue and further develop their intergovernmental cooperation, whilst respecting the provisions of this Directive.
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Adopted text
Here is the text of Article 1 of the Defence Transfers Directive, as adopted by the European Parliament:
Article 1
Subject matter
1. The aim of this Directive is to simplify rules and procedures applicable to the intra-Community transfer of defence-related products in order to ensure proper functioning of the internal market.
2. This Directive does not affect the discretion of Member States as regards policy on the export of defence-related products.
3. The application of this Directive shall be subject to Articles 30 and 296 of the Treaty.
4. This Directive does not affect the possibility for Member States to pursue and further develop intergovernmental co-operations, whilst respecting its provisions.
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Scope
The Defence Transfers Directive applies to intra-Community transfers of defence-related products. These have been listed in the Annex to the Directive.
Recitals 9 and 37 of the Directive express the desire to update the Annex list to be made identical in scope with the Common Military List of the European Union (CML):
(9) This Directive should cover all the defence-related products which correspond to those listed in the Common Military List of the European Union including components and technologies.
(37) The list in the Annex of defence-related products should be updated in strict conformity with the Common Military List of the European Union (CML).
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(Footnote 4 referred to the CML as published in 2007, but there is a later update, published OJEU 18.4.2008 C 98/1.)
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Adopted text
Here is the adopted text of Article 2:
Article 2
Scope
This Directive applies to defence-related products as listed in the Annex.
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Definitions
Some of the terms of the Defence Transfer Directive are defined in Article 3, but I let the adopted text speak for itself:
Article 3
Definitions
For the purposes of this Directive , the following definitions shall apply:
1) "defence-related product" means any product listed in the Annex;
2) "transfer" means any transmission or movement of a defence-related product from a supplier to a recipient in another Member State;
3) "supplier" means the legal or natural person established within the Community who is legally responsible for a transfer;
4) "recipient" means the legal or natural person established within the Community who is legally responsible for a receipt of a transfer in another Member State;
5) "transfer licence" means an authorisation by a national authority of a Member State for suppliers to transfer defence-related products to a recipient in another Member State;
6) "export licence" means an authorisation to supply defence-related products to a legal or natural person in any third country;
7) "passage through" means the transport of defence-related products through one or more Member States other than the Member State of dispatch and the Member State of destination.
Ralf Grahn
Showing posts with label scope. Show all posts
Showing posts with label scope. Show all posts
Monday, 19 January 2009
Thursday, 8 January 2009
EU Procurement Directive: Excluded transport services
The general European Community (European Union) Procurement Directive 2004/18/EC, also known as the Classic Directive, does not apply to public contracts in the special sectors covered by the Utilities Directive 2004/17/EC.
Here we look at excluded transport services.
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Article 12 Procurement Directive
Article 12 of the Procurement Directive 2004/18/EC excludes the sectors to which the so called Utilities Directive 2004/17/EC applies as ‘lex specialis’: water, energy, transport and postal services:
S e c t i o n 3
Excluded contracts
Article 12
Contracts in the water, energy, transport and postal services sectors
This Directive shall not apply to public contracts which, under Directive 2004/17/EC, are awarded by contracting authorities exercising one or more of the activities referred to in Articles 3 to 7 of that Directive and are awarded for the pursuit of those activities, or to public contracts excluded from the scope of that Directive under Article 5(2) and Articles 19, 26 and 30 thereof.
However, this Directive shall continue to apply to public contracts awarded by contracting authorities carrying out one or more of the activities referred to in Article 6 of Directive 2004/17/EC and awarded for those activities, insofar as the Member State concerned takes advantage of the option referred to in the second subparagraph of Article 71 thereof to defer its application.
***
Exclusion of utilities explained
Recital 20 of the Procurement Directive refers to Directive 2004/17/EC, the so called Utilities Directive, and explains the exclusion of specific sectors from the Procurement Directive:
(20) Public contracts which are awarded by the contracting authorities operating in the water, energy, transport and postal services sectors and which fall within the scope of those activities are covered by Directive 2004/17/EC of the European Parliament and of the Council of 31 March 2004 coordinating the procurement procedures of entities operating in the water, energy, transport and postal services sectors. However, contracts awarded by the contracting authorities in the context of their service activities for maritime, coastal or river transport must fall within the scope of this Directive.
***
Transport services excluded (and included)
The headline ‘water, energy, transport and postal services sectors’ gives us a rough indication of the activities, which fall under the Utilities Directive 2004/17/EC, but the scope of the Utilities Directive needs to be defined in order to determine when this Directive takes precedence.
The Utilities Directive is the primary source concerning public contracts awarded by contracting authorities exercising one or more of the activities referred to in Articles 3 to 7 of that Directive and awarded for the pursuit of those activities.
Transport services are excluded from the general Procurement Directive insofar as they are covered by the Utilities Directive. Article 5 of the Utilities Directive determines the transport service contracts covered by that Directive (subject to further precisions):
Article 5 Utilities Directive
Transport services
1. This Directive shall apply to activities relating to the provision or operation of networks providing a service to the public in the field of transport by railway, automated systems, tramway, trolley bus, bus or cable.
As regards transport services, a network shall be considered to exist where the service is provided under operating conditions laid down by a competent authority of a Member State, such as conditions on the routes to be served, the capacity to be made available or the frequency of the service.
2. This Directive shall not apply to entities providing bus transport services to the public which were excluded from the scope of Directive 93/38/EEC pursuant to Article 2(4) thereof.
***
Bus transport services
Article 2(4) of the old Utilities Directive 93/38/EEC excluded bus transport services where free competition between bus services existed:
4. The provision of bus transport services to the public shall not be considered to be a relevant activity within the meaning of paragraph 2(c) where other entities are free to provide those services, either in general or in a particular geographical area, under the same condition as the contracting entities.
***
Article 5(2) of the current Utilities Directive 2004/17/EC states that the same exemption continues to exist.
Ralf Grahn
Here we look at excluded transport services.
***
Article 12 Procurement Directive
Article 12 of the Procurement Directive 2004/18/EC excludes the sectors to which the so called Utilities Directive 2004/17/EC applies as ‘lex specialis’: water, energy, transport and postal services:
S e c t i o n 3
Excluded contracts
Article 12
Contracts in the water, energy, transport and postal services sectors
This Directive shall not apply to public contracts which, under Directive 2004/17/EC, are awarded by contracting authorities exercising one or more of the activities referred to in Articles 3 to 7 of that Directive and are awarded for the pursuit of those activities, or to public contracts excluded from the scope of that Directive under Article 5(2) and Articles 19, 26 and 30 thereof.
However, this Directive shall continue to apply to public contracts awarded by contracting authorities carrying out one or more of the activities referred to in Article 6 of Directive 2004/17/EC and awarded for those activities, insofar as the Member State concerned takes advantage of the option referred to in the second subparagraph of Article 71 thereof to defer its application.
***
Exclusion of utilities explained
Recital 20 of the Procurement Directive refers to Directive 2004/17/EC, the so called Utilities Directive, and explains the exclusion of specific sectors from the Procurement Directive:
(20) Public contracts which are awarded by the contracting authorities operating in the water, energy, transport and postal services sectors and which fall within the scope of those activities are covered by Directive 2004/17/EC of the European Parliament and of the Council of 31 March 2004 coordinating the procurement procedures of entities operating in the water, energy, transport and postal services sectors. However, contracts awarded by the contracting authorities in the context of their service activities for maritime, coastal or river transport must fall within the scope of this Directive.
***
Transport services excluded (and included)
The headline ‘water, energy, transport and postal services sectors’ gives us a rough indication of the activities, which fall under the Utilities Directive 2004/17/EC, but the scope of the Utilities Directive needs to be defined in order to determine when this Directive takes precedence.
The Utilities Directive is the primary source concerning public contracts awarded by contracting authorities exercising one or more of the activities referred to in Articles 3 to 7 of that Directive and awarded for the pursuit of those activities.
Transport services are excluded from the general Procurement Directive insofar as they are covered by the Utilities Directive. Article 5 of the Utilities Directive determines the transport service contracts covered by that Directive (subject to further precisions):
Article 5 Utilities Directive
Transport services
1. This Directive shall apply to activities relating to the provision or operation of networks providing a service to the public in the field of transport by railway, automated systems, tramway, trolley bus, bus or cable.
As regards transport services, a network shall be considered to exist where the service is provided under operating conditions laid down by a competent authority of a Member State, such as conditions on the routes to be served, the capacity to be made available or the frequency of the service.
2. This Directive shall not apply to entities providing bus transport services to the public which were excluded from the scope of Directive 93/38/EEC pursuant to Article 2(4) thereof.
***
Bus transport services
Article 2(4) of the old Utilities Directive 93/38/EEC excluded bus transport services where free competition between bus services existed:
4. The provision of bus transport services to the public shall not be considered to be a relevant activity within the meaning of paragraph 2(c) where other entities are free to provide those services, either in general or in a particular geographical area, under the same condition as the contracting entities.
***
Article 5(2) of the current Utilities Directive 2004/17/EC states that the same exemption continues to exist.
Ralf Grahn
Wednesday, 7 January 2009
EU Procurement Directive: Excluded water contracts
The general European Community (European Union) Procurement Directive 2004/18/EC, also known as the Classic Directive, does not apply to public contracts in the special sectors covered by the Utilities Directive 2004/17/EC.
Here we look at the water sector.
***
Article 12 Procurement Directive
Article 12 of the Procurement Directive 2004/18/EC excludes the sectors to which the so called Utilities Directive 2004/17/EC applies as ‘lex specialis’: water, energy, transport and postal services:
S e c t i o n 3
Excluded contracts
Article 12
Contracts in the water, energy, transport and postal services sectors
This Directive shall not apply to public contracts which, under Directive 2004/17/EC, are awarded by contracting authorities exercising one or more of the activities referred to in Articles 3 to 7 of that Directive and are awarded for the pursuit of those activities, or to public contracts excluded from the scope of that Directive under Article 5(2) and Articles 19, 26 and 30 thereof.
However, this Directive shall continue to apply to public contracts awarded by contracting authorities carrying out one or more of the activities referred to in Article 6 of Directive 2004/17/EC and awarded for those activities, insofar as the Member State concerned takes advantage of the option referred to in the second subparagraph of Article 71 thereof to defer its application.
***
Exclusion of utilities explained
Recital 20 of the Procurement Directive refers to Directive 2004/17/EC, the so called Utilities Directive, and explains the exclusion of specific sectors from the Procurement Directive:
(20) Public contracts which are awarded by the contracting authorities operating in the water, energy, transport and postal services sectors and which fall within the scope of those activities are covered by Directive 2004/17/EC of the European Parliament and of the Council of 31 March 2004 coordinating the procurement procedures of entities operating in the water, energy, transport and postal services sectors. However, contracts awarded by the contracting authorities in the context of their service activities for maritime, coastal or river transport must fall within the scope of this Directive.
***
Water sector excluded (and included)
The headline ‘water, energy, transport and postal services sectors’ gives us a rough indication of the activities, which fall under the Utilities Directive 2004/17/EC, but the scope of the Utilities Directive needs to be defined in order to determine when this Directive takes precedence.
The Utilities Directive is the primary source concerning public contracts awarded by contracting authorities exercising one or more of the activities referred to in Articles 3 to 7 of that Directive and awarded for the pursuit of those activities.
The water sector is excluded from the general Procurement Directive insofar as it is covered by the Utilities Directive. Article 4 of the Utilities Directive determines the water contracts covered by that Directive (subject to further precisions):
Article 4 Utilities Directive
Water
1. This Directive shall apply to the following activities:
(a) the provision or operation of fixed networks intended to provide a service to the public in connection with the production, transport or distribution of drinking water; or
(b) the supply of drinking water to such networks.
2. This Directive shall also apply to contracts or design contests awarded or organised by entities which pursue an activity referred to in paragraph 1 and which:
(a) are connected with hydraulic engineering projects, irrigation or land drainage, provided that the volume of water to be used for the supply of drinking water represents more than 20 % of the total volume of water made available by such projects or irrigation or drainage installations, or
(b) are connected with the disposal or treatment of sewage.
3. The supply of drinking water to networks which provide a service to the public by a contracting entity other than a contracting authority shall not be considered a relevant activity within the meaning of paragraph 1 where:
(a) the production of drinking water by the entity concerned takes place because its consumption is necessary for carrying out an activity other than those referred to in Articles 3 to 7; and
(b) supply to the public network depends only on the entity's own consumption and has not exceeded 30 % of the entity's total production of drinking water, having regard to the average for the preceding three years, including the current year.
Ralf Grahn
Here we look at the water sector.
***
Article 12 Procurement Directive
Article 12 of the Procurement Directive 2004/18/EC excludes the sectors to which the so called Utilities Directive 2004/17/EC applies as ‘lex specialis’: water, energy, transport and postal services:
S e c t i o n 3
Excluded contracts
Article 12
Contracts in the water, energy, transport and postal services sectors
This Directive shall not apply to public contracts which, under Directive 2004/17/EC, are awarded by contracting authorities exercising one or more of the activities referred to in Articles 3 to 7 of that Directive and are awarded for the pursuit of those activities, or to public contracts excluded from the scope of that Directive under Article 5(2) and Articles 19, 26 and 30 thereof.
However, this Directive shall continue to apply to public contracts awarded by contracting authorities carrying out one or more of the activities referred to in Article 6 of Directive 2004/17/EC and awarded for those activities, insofar as the Member State concerned takes advantage of the option referred to in the second subparagraph of Article 71 thereof to defer its application.
***
Exclusion of utilities explained
Recital 20 of the Procurement Directive refers to Directive 2004/17/EC, the so called Utilities Directive, and explains the exclusion of specific sectors from the Procurement Directive:
(20) Public contracts which are awarded by the contracting authorities operating in the water, energy, transport and postal services sectors and which fall within the scope of those activities are covered by Directive 2004/17/EC of the European Parliament and of the Council of 31 March 2004 coordinating the procurement procedures of entities operating in the water, energy, transport and postal services sectors. However, contracts awarded by the contracting authorities in the context of their service activities for maritime, coastal or river transport must fall within the scope of this Directive.
***
Water sector excluded (and included)
The headline ‘water, energy, transport and postal services sectors’ gives us a rough indication of the activities, which fall under the Utilities Directive 2004/17/EC, but the scope of the Utilities Directive needs to be defined in order to determine when this Directive takes precedence.
The Utilities Directive is the primary source concerning public contracts awarded by contracting authorities exercising one or more of the activities referred to in Articles 3 to 7 of that Directive and awarded for the pursuit of those activities.
The water sector is excluded from the general Procurement Directive insofar as it is covered by the Utilities Directive. Article 4 of the Utilities Directive determines the water contracts covered by that Directive (subject to further precisions):
Article 4 Utilities Directive
Water
1. This Directive shall apply to the following activities:
(a) the provision or operation of fixed networks intended to provide a service to the public in connection with the production, transport or distribution of drinking water; or
(b) the supply of drinking water to such networks.
2. This Directive shall also apply to contracts or design contests awarded or organised by entities which pursue an activity referred to in paragraph 1 and which:
(a) are connected with hydraulic engineering projects, irrigation or land drainage, provided that the volume of water to be used for the supply of drinking water represents more than 20 % of the total volume of water made available by such projects or irrigation or drainage installations, or
(b) are connected with the disposal or treatment of sewage.
3. The supply of drinking water to networks which provide a service to the public by a contracting entity other than a contracting authority shall not be considered a relevant activity within the meaning of paragraph 1 where:
(a) the production of drinking water by the entity concerned takes place because its consumption is necessary for carrying out an activity other than those referred to in Articles 3 to 7; and
(b) supply to the public network depends only on the entity's own consumption and has not exceeded 30 % of the entity's total production of drinking water, having regard to the average for the preceding three years, including the current year.
Ralf Grahn
EU Procurement Directive: Excluded energy contracts
The general European Community (European Union) Procurement Directive 2004/18/EC, also known as the Classic Directive, does not apply to public contracts in the special sectors covered by the Utilities Directive 2004/17/EC.
Here we look at the energy sector (gas, heat and electricity).
***
Article 12 Procurement Directive
Article 12 of the Procurement Directive 2004/18/EC excludes the sectors to which the so called Utilities Directive 2004/17/EC applies as ‘lex specialis’: water, energy, transport and postal services:
S e c t i o n 3
Excluded contracts
Article 12
Contracts in the water, energy, transport and postal services sectors
This Directive shall not apply to public contracts which, under Directive 2004/17/EC, are awarded by contracting authorities exercising one or more of the activities referred to in Articles 3 to 7 of that Directive and are awarded for the pursuit of those activities, or to public contracts excluded from the scope of that Directive under Article 5(2) and Articles 19, 26 and 30 thereof.
However, this Directive shall continue to apply to public contracts awarded by contracting authorities carrying out one or more of the activities referred to in Article 6 of Directive 2004/17/EC and awarded for those activities, insofar as the Member State concerned takes advantage of the option referred to in the second subparagraph of Article 71 thereof to defer its application.
***
Exclusion of utilities explained
Recital 20 of the Procurement Directive refers to Directive 2004/17/EC, the so called Utilities Directive, and explains the exclusion of specific sectors from the Procurement Directive:
(20) Public contracts which are awarded by the contracting authorities operating in the water, energy, transport and postal services sectors and which fall within the scope of those activities are covered by Directive 2004/17/EC of the European Parliament and of the Council of 31 March 2004 coordinating the procurement procedures of entities operating in the water, energy, transport and postal services sectors. However, contracts awarded by the contracting authorities in the context of their service activities for maritime, coastal or river transport must fall within the scope of this Directive.
***
Energy sector excluded (and included)
The headline ‘water, energy, transport and postal services sectors’ gives us a rough indication of the activities, which fall under the Utilities Directive 2004/17/EC, but the scope of the Utilities Directive needs to be defined in order to determine when this Directive takes precedence.
The Utilities Directive is the primary source concerning public contracts awarded by contracting authorities exercising one or more of the activities referred to in Articles 3 to 7 of that Directive and awarded for the pursuit of those activities.
The energy sector (gas, heat and electricity) is excluded from the general Procurement Directive insofar as it is covered by the Utilities Directive. Article 3 of the Utilities Directive determines the energy contracts covered by that Directive (subject to further precisions):
S e c t i o n 2
Activities
Article 3 Utilities Directive
Gas, heat and electricity
1. As far as gas and heat are concerned, this Directive shall apply to the following activities:
(a) the provision or operation of fixed networks intended to provide a service to the public in connection with the production, transport or distribution of gas or heat; or
(b) the supply of gas or heat to such networks.
2. The supply of gas or heat to networks which provide a service to the public by a contracting entity other than a contracting authority shall not be considered a relevant activity within the meaning of paragraph 1 where:
(a) the production of gas or heat by the entity concerned is the unavoidable consequence of carrying out an activity other than those referred to in paragraphs 1 or 3 of this Article or in Articles 4 to 7; and
(b) supply to the public network is aimed only at the economic exploitation of such production and amounts to not more than 20 % of the entity's turnover having regard to the average for the preceding three years, including the current year.
3. As far as electricity is concerned, this Directive shall apply to the following activities:
(a) the provision or operation of fixed networks intended to provide a service to the public in connection with the production, transport or distribution of electricity; or
(b) the supply of electricity to such networks.
4. The supply of electricity to networks which provide a service to the public by a contracting entity other than a contracting authority shall not be considered a relevant activity within the meaning of paragraph 3 where:
(a) the production of electricity by the entity concerned takes place because its consumption is necessary for carrying out an activity other than those referred to in paragraphs 1 or 3 of this Article or in Articles 4 to 7; and
(b) supply to the public network depends only on the entity's own consumption and has not exceeded 30% of the entity's total production of energy, having regard to the average for the preceding three years, including the current year.
Ralf Grahn
Here we look at the energy sector (gas, heat and electricity).
***
Article 12 Procurement Directive
Article 12 of the Procurement Directive 2004/18/EC excludes the sectors to which the so called Utilities Directive 2004/17/EC applies as ‘lex specialis’: water, energy, transport and postal services:
S e c t i o n 3
Excluded contracts
Article 12
Contracts in the water, energy, transport and postal services sectors
This Directive shall not apply to public contracts which, under Directive 2004/17/EC, are awarded by contracting authorities exercising one or more of the activities referred to in Articles 3 to 7 of that Directive and are awarded for the pursuit of those activities, or to public contracts excluded from the scope of that Directive under Article 5(2) and Articles 19, 26 and 30 thereof.
However, this Directive shall continue to apply to public contracts awarded by contracting authorities carrying out one or more of the activities referred to in Article 6 of Directive 2004/17/EC and awarded for those activities, insofar as the Member State concerned takes advantage of the option referred to in the second subparagraph of Article 71 thereof to defer its application.
***
Exclusion of utilities explained
Recital 20 of the Procurement Directive refers to Directive 2004/17/EC, the so called Utilities Directive, and explains the exclusion of specific sectors from the Procurement Directive:
(20) Public contracts which are awarded by the contracting authorities operating in the water, energy, transport and postal services sectors and which fall within the scope of those activities are covered by Directive 2004/17/EC of the European Parliament and of the Council of 31 March 2004 coordinating the procurement procedures of entities operating in the water, energy, transport and postal services sectors. However, contracts awarded by the contracting authorities in the context of their service activities for maritime, coastal or river transport must fall within the scope of this Directive.
***
Energy sector excluded (and included)
The headline ‘water, energy, transport and postal services sectors’ gives us a rough indication of the activities, which fall under the Utilities Directive 2004/17/EC, but the scope of the Utilities Directive needs to be defined in order to determine when this Directive takes precedence.
The Utilities Directive is the primary source concerning public contracts awarded by contracting authorities exercising one or more of the activities referred to in Articles 3 to 7 of that Directive and awarded for the pursuit of those activities.
The energy sector (gas, heat and electricity) is excluded from the general Procurement Directive insofar as it is covered by the Utilities Directive. Article 3 of the Utilities Directive determines the energy contracts covered by that Directive (subject to further precisions):
S e c t i o n 2
Activities
Article 3 Utilities Directive
Gas, heat and electricity
1. As far as gas and heat are concerned, this Directive shall apply to the following activities:
(a) the provision or operation of fixed networks intended to provide a service to the public in connection with the production, transport or distribution of gas or heat; or
(b) the supply of gas or heat to such networks.
2. The supply of gas or heat to networks which provide a service to the public by a contracting entity other than a contracting authority shall not be considered a relevant activity within the meaning of paragraph 1 where:
(a) the production of gas or heat by the entity concerned is the unavoidable consequence of carrying out an activity other than those referred to in paragraphs 1 or 3 of this Article or in Articles 4 to 7; and
(b) supply to the public network is aimed only at the economic exploitation of such production and amounts to not more than 20 % of the entity's turnover having regard to the average for the preceding three years, including the current year.
3. As far as electricity is concerned, this Directive shall apply to the following activities:
(a) the provision or operation of fixed networks intended to provide a service to the public in connection with the production, transport or distribution of electricity; or
(b) the supply of electricity to such networks.
4. The supply of electricity to networks which provide a service to the public by a contracting entity other than a contracting authority shall not be considered a relevant activity within the meaning of paragraph 3 where:
(a) the production of electricity by the entity concerned takes place because its consumption is necessary for carrying out an activity other than those referred to in paragraphs 1 or 3 of this Article or in Articles 4 to 7; and
(b) supply to the public network depends only on the entity's own consumption and has not exceeded 30% of the entity's total production of energy, having regard to the average for the preceding three years, including the current year.
Ralf Grahn
Thursday, 25 December 2008
EU procurement: Telecommunications networks and services
The EC (EU) Procurement Directive 2004/18/EC defines public telecommunications networks, network termination points, public telecommunications services and telecommunications services in Article 1.15:
15. For the purposes of Article 13, Article 57(a) and Article 68(b), the following phrases shall have the following meanings:
(a) ‘public telecommunications network’ means the public telecommunications infrastructure which enables signals to be conveyed between defined network termination points by wire, by microwave, by optical means or by other electromagnetic means;
(b) a ‘network termination point’ means all physical connections and their technical access specifications which form part of the public telecommunications network and are necessary for access to, and efficient communication through, that public network;
(c) ‘public telecommunications services’ means telecommunications services the provision of which the Member States have specifically assigned, in particular, to one or more telecommunications entities;
(d) ‘telecommunications services’ means services the provision of which consists wholly or partly in the transmission and routing of signals on the public telecommunications network by means of telecommunications processes, with the exception of broadcasting and television.
***
Recital 21
Recital 21 of the Procurement Directive or Classic Directive makes an effort to explain and to delimit the exclusion of public telecommunications contracts from the scope of the Directive:
(21) In view of the situation of effective market competition in the telecommunications sector following the implementation of the Community rules aimed at liberalising that sector, public contracts in that area should be excluded from the scope of this Directive insofar as they are intended primarily to allow the contracting authorities to exercise certain activities in the telecommunications sector. Those activities are defined in accordance with the definitions used in Articles 1, 2 and 8 of Council Directive 93/38/EEC of 14 June 1993 coordinating the procurement procedures of entities operating in the water, energy, transport and telecommunications sector, such that this Directive does not apply to contracts which have been excluded from the scope of Directive 93/38/EEC pursuant to Article 8 thereof.
***
Excluded contracts
Under Section 3 Excluded contracts, Article 13 of the Procurement Directive lays down the following rules:
Article 13
Specific exclusions in the field of telecommunications
This Directive shall not apply to public contracts for the principal purpose of permitting the contracting authorities to provide or exploit public telecommunications networks or to provide to the public one or more telecommunications services.
***
Article 57(a) and 68(b) contain further exclusions.
***
Utilities Directive 2004/17/EC
The Utilities Directive, officially the Directive 2004/17/EC of the European Parliament and of the Council of 31 March 2004 coordinating the procurement procedures of entities operating in the water, energy, transport and postal services sectors (OJ 30.4.2004 L 134/1; later amendments) excluded purchases by telecommunications entities from the new Utilities Directive, as described in Recital 5:
(5) The scope of Directive 98/38/EEC covers, at present, certain contracts awarded by contracting entities operating in the telecommunications sector. A legislative framework, as mentioned in the Fourth report on the implementation of the telecommunications regulations of 25 November 1998, has been adopted to open this sector. One of its consequences has been the introduction of effective competition, both de jure and de facto, in this sector. For information purposes, and in the light of this situation, the Commission has published a list of telecommunications services which may already be excluded from the scope of that Directive by virtue of Article 8 thereof. Further progress has been confirmed in the Seventh report on the implementation of telecommunications regulations of 26 November 2001. It is therefore no longer necessary to regulate purchases by entities operating in this sector.
***
The exclusion of public telecommunications contracts from the scope of the new Utilities Directive would have brought them under the new general Procurement Directive.
The contracts by contracting authorities would have fallen under the new Procurement Directive, but Article 13 specifically excludes this.
***
Background: Effective competition
A Communication from the Commission evaluated the development of effective competition within the telecommunications sector:
Communication from the Commission pursuant to Article 8 of Directive 93/38/EEC List of services regarded as excluded from the scope of Council Directive 93/38/EEC of 14 June 1993 coordinating the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors pursuant to Article 8 thereof (OJ 30.4.2004 C 115/7)
Directive 93/38/EEC is applicable in particular to contracts awarded by telecommunications operators; however its constraints are no longer justified where there is effective competition after the liberalisation of this sector. For this purpose Article 8 of the Directive lays down that where there is effective competition in the telecommunications services market, procurements for the provision of these services may be exempted from the scope of the Directive. In its Communication on public procurement in the European Union, the Commission indicated that it would examine whether this Article could be applied.
Ralf Grahn
15. For the purposes of Article 13, Article 57(a) and Article 68(b), the following phrases shall have the following meanings:
(a) ‘public telecommunications network’ means the public telecommunications infrastructure which enables signals to be conveyed between defined network termination points by wire, by microwave, by optical means or by other electromagnetic means;
(b) a ‘network termination point’ means all physical connections and their technical access specifications which form part of the public telecommunications network and are necessary for access to, and efficient communication through, that public network;
(c) ‘public telecommunications services’ means telecommunications services the provision of which the Member States have specifically assigned, in particular, to one or more telecommunications entities;
(d) ‘telecommunications services’ means services the provision of which consists wholly or partly in the transmission and routing of signals on the public telecommunications network by means of telecommunications processes, with the exception of broadcasting and television.
***
Recital 21
Recital 21 of the Procurement Directive or Classic Directive makes an effort to explain and to delimit the exclusion of public telecommunications contracts from the scope of the Directive:
(21) In view of the situation of effective market competition in the telecommunications sector following the implementation of the Community rules aimed at liberalising that sector, public contracts in that area should be excluded from the scope of this Directive insofar as they are intended primarily to allow the contracting authorities to exercise certain activities in the telecommunications sector. Those activities are defined in accordance with the definitions used in Articles 1, 2 and 8 of Council Directive 93/38/EEC of 14 June 1993 coordinating the procurement procedures of entities operating in the water, energy, transport and telecommunications sector, such that this Directive does not apply to contracts which have been excluded from the scope of Directive 93/38/EEC pursuant to Article 8 thereof.
***
Excluded contracts
Under Section 3 Excluded contracts, Article 13 of the Procurement Directive lays down the following rules:
Article 13
Specific exclusions in the field of telecommunications
This Directive shall not apply to public contracts for the principal purpose of permitting the contracting authorities to provide or exploit public telecommunications networks or to provide to the public one or more telecommunications services.
***
Article 57(a) and 68(b) contain further exclusions.
***
Utilities Directive 2004/17/EC
The Utilities Directive, officially the Directive 2004/17/EC of the European Parliament and of the Council of 31 March 2004 coordinating the procurement procedures of entities operating in the water, energy, transport and postal services sectors (OJ 30.4.2004 L 134/1; later amendments) excluded purchases by telecommunications entities from the new Utilities Directive, as described in Recital 5:
(5) The scope of Directive 98/38/EEC covers, at present, certain contracts awarded by contracting entities operating in the telecommunications sector. A legislative framework, as mentioned in the Fourth report on the implementation of the telecommunications regulations of 25 November 1998, has been adopted to open this sector. One of its consequences has been the introduction of effective competition, both de jure and de facto, in this sector. For information purposes, and in the light of this situation, the Commission has published a list of telecommunications services which may already be excluded from the scope of that Directive by virtue of Article 8 thereof. Further progress has been confirmed in the Seventh report on the implementation of telecommunications regulations of 26 November 2001. It is therefore no longer necessary to regulate purchases by entities operating in this sector.
***
The exclusion of public telecommunications contracts from the scope of the new Utilities Directive would have brought them under the new general Procurement Directive.
The contracts by contracting authorities would have fallen under the new Procurement Directive, but Article 13 specifically excludes this.
***
Background: Effective competition
A Communication from the Commission evaluated the development of effective competition within the telecommunications sector:
Communication from the Commission pursuant to Article 8 of Directive 93/38/EEC List of services regarded as excluded from the scope of Council Directive 93/38/EEC of 14 June 1993 coordinating the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors pursuant to Article 8 thereof (OJ 30.4.2004 C 115/7)
Directive 93/38/EEC is applicable in particular to contracts awarded by telecommunications operators; however its constraints are no longer justified where there is effective competition after the liberalisation of this sector. For this purpose Article 8 of the Directive lays down that where there is effective competition in the telecommunications services market, procurements for the provision of these services may be exempted from the scope of the Directive. In its Communication on public procurement in the European Union, the Commission indicated that it would examine whether this Article could be applied.
Ralf Grahn
Saturday, 9 February 2008
EU Treaty of Lisbon Geographical scope II
At least from a Nordic perspective, this kind of lawmaking is like a return decades back in time. It is as if they had invented an inverted open method of coordination with worst practice benchmarking.
The ‘conference of representatives of the Member States’ (IGC 2007) has been convened to impart that the territorial scope of the Treaties is to be deduced by combining parts of a current Article with a set of prescribed amendments.
The text is gibberish or Volapûk for the reader of the Treaty of Lisbon, a completely unnecessary obfuscation of the information to be imparted, when it would have been simpler to write down the complete Article as amended.
***
In part one we saw that the Treaties apply to the member states, and we recapitulated the enlargement process and the consequent widening territorial or geographical scope of the Treaties. In this second part of the article we can turn our attention to more arcane details of applicability in the light of the Lisbon Treaty, although naming concrete territories and the expounding the limits of applicability would require further study.
Our next stop is obvious, Article 311a of the Treaty on the Functioning of the European Union (TFEU) where we see that the IGC is back at its enlightening best (OJ 17.12.2007 C 306/132):
293) Article 311 shall be repealed. A new Article 311a shall be inserted, with the wording of Article 299(2), first subparagraph, and Article 299(3) to (6); the text shall be amended as follows:
(a) the first subparagraph of paragraph 2 and paragraphs 3 to 6 shall be renumbered 1 to 5 and the following new introductory wording shall be inserted at the beginning of the Article:
‘In addition to the provisions of Article 49 C of the Treaty on European Union relating to the territorial scope of the Treaties, the following provisions shall apply:’;
(b) at the beginning of the first subparagraph of paragraph 2, renumbered 1, the words ‘the French overseas departments,’ shall be replaced by ‘Guadeloupe, French Guiana, Martinique, Réunion, Saint-Barthélemy, Saint-Martin’ and the words ‘in accordance with Article 299’ shall be added at the end;
(c) in paragraph 3, renumbered 2, the words ‘of this Treaty’ shall be deleted;
(d) in paragraph 6, renumbered 5, the introductory words ‘Notwithstanding the preceding paragraphs:’ shall be replaced by ‘Notwithstanding Article 49 C of the Treaty on European Union and paragraphs 1 to 4 of this Article:’;
(e) the following new paragraph shall be added at the end of the Article:
‘6. The European Council may, on the initiative of the Member State concerned, adopt a decision amending the status, with regard to the Union, of a Danish, French or Netherlands country or territory referred to in paragraphs 1 and 2. The European Council shall act unanimously after consulting the Commission.’.
***
We already saw the current Article 299 TEC in part one. While the application of the Treaties to the member states was elevated to the Treaty on European Union (TEU), the rest was left in the more mundane TFEU, but given a new number. Following the instructions given by our games organizers, we should end up with an Article 311a TFEU looking like this:
Article 311a TFEU
In addition to the provisions of Article 49c of the Treaty on European Union relating to the territorial scope of the Treaties, the following provisions shall apply:
1. The provisions of this Treaty shall apply to Guadeloupe, French Guiana, Martinique, Réunion, Saint-Barthélemy, Saint-Martin, the Azores, Madeira and the Canary Islands in accordance with Article 299.
2. The special arrangements for association set out in Part Four shall apply to the overseas countries and territories listed in Annex II.
The Treaties shall not apply to those overseas countries and territories having special relations with the United Kingdom of Great Britain and Northern Ireland which are not included in the aforementioned list.
3. The provisions of the Treaties shall apply to the European territories for whose external relations a Member State is responsible.
4. The provisions of the Treaties shall apply to the Åland Islands in accordance with the provisions set out in Protocol 2 to the Act concerning the conditions of accession of the Republic of Austria, the Republic of Finland and the Kingdom of Sweden.
5. Notwithstanding Article 49c of the Treaty on European Union and paragraphs 1 to 4 of this Article:
(a) the Treaties shall not apply to the Faeroe Islands;
(b) this Treaty shall not apply to the United Kingdom Sovereign Base Areas of Akrotiri and Dhekelia in Cyprus except to the extent necessary to ensure the implementation of the arrangements set out in the Protocol on the Sovereign Base Areas of the United Kingdom of Great Britain and Northern Ireland in Cyprus annexed to the Act concerning the conditions of accession of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic to the European Union and in accordance with the terms of that Protocol;
(c) the Treaties shall apply to the Channel Islands and the Isle of Man only to the extent necessary to ensure the implementation of the arrangements for those islands set out in the Treaty concerning the accession of new Member States to the European Economic Community and to the European Atomic Energy Community signed on 22 January 1972.
6. The European Council may, on the initiative of the Member State concerned, adopt a decision amending the status, with regard to the Union, of a Danish, French or Netherlands country or territory referred to in paragraphs 1 and 2. The European Council shall act unanimously after consulting the Commission.
***
We start with the rule that the Treaties apply to the territories of the member states (Article 49c TEU).
Territories outside Europe
Article 311a(1) TFEU includes the French, Portuguese and Spanish extra-European territories: Guadeloupe, French Guiana, Martinique, Réunion, Saint-Barthélemy, Saint-Martin, the Azores, Madeira and the Canary Islands.
As territories the Treaties are applicable pursuant to the main rule, but in accordance with the amended Article 299 TFEU the structural and economic situation of these territories is taken into account.
The situation is said to be compounded by their remoteness, insularity, small size, difficult topography and climate, economic dependence on a few products, the permanence and combination of which severely restrain their development. Therefore specific measures are allowed, aimed at laying down the conditions of application of the Treaties, including common policies.
The measures may concern particularly customs and trade policies, fiscal policy, free zones, agriculture and fisheries policies, conditions for supply of raw materials and essential consumer goods, state aids and conditions of access to structural funds and to horizontal Union programmes.
Associated overseas territories
According to Article 311a(2) special arrangements for association apply to the following overseas countries and territories listed in Annex II (taken from OJ 29.12.2006 C 321 E/186):
ANNEX II
OVERSEAS COUNTRIES AND TERRITORIES
to which the provisions of Part Four of the Treaty apply
— Greenland
— New Caledonia and Dependencies
— French Polynesia
— French Southern and Antarctic Territories
— Wallis and Futuna Islands
— Mayotte
— Saint Pierre and Miquelon
— Aruba
— Netherlands Antilles:
— Bonaire
— Curaçao
— Saba
— Sint Eustatius
— Sint Maarten
— Anguilla
— Cayman Islands
— Falkland Islands
— South Georgia and the South Sandwich Islands
— Montserrat
— Pitcairn
— Saint Helena and Dependencies
— British Antarctic Territory
— British Indian Ocean Territory
— Turks and Caicos Islands
— British Virgin Islands
— Bermuda
The association system is described in the current Articles 182 to 186 TEC, which live on with minimal change in the TFEU.
The Treaties do not apply to overseas countries and territories having special relations with the United Kingdom of Great Britain and Northern Ireland not included in the list.
Responsibility for external relations
The Treaties apply to the European territories for whose external relations a Member State is responsible.
Åland Islands
A European territory, the Åland Islands form an autonomous region of Finland with extended legislative powers and self-rule.
The relationship with the European Union was agreed in a protocol attached to the Accession Treaty of 1994, and one could speak of modified applicability.
European territories outside the Treaties
Although European, the territories mentioned in 311a(5) are not applicable to the Faeroe Islands and only marginally to the UK bases in Cyprus and to the Channel Islands and the Isle of Man.
***
While waiting for the (hopefully complete) consolidated versions of the Treaty of Lisbon, the student who wants to find general guidance on additional questions of applicability could find some useful information in Protocol (number 8) on the Treaties and Acts of Accession of the Kingdom of Denmark, Ireland and the United Kingdom of Great Britain and Northern Ireland, of the Hellenic Republic, of the Kingdom of Spain and the Portuguese Republic, and of Austria, the Republic of Finland and the Kingdom of Sweden, in the form they were attached to the Treaty establishing a Constitution for Europe (OJ 16.12.2004 C 310/274).
There are, for instance, provisions on Gibraltar, the Faroe Islands, the Channel Islands and the Isle of Man, Ceuta and Melilla and the Åland Islands.
Protocol (number 9) to the Constitutional Treaty contains, i.a. provisions on the sovereign base areas of the UK in Cyprus (page 328) as well as the suspension of the EU and EC ‘acquis’ in the areas of Cyprus outside the effective control of the government (page 341).
Ralf Grahn
The ‘conference of representatives of the Member States’ (IGC 2007) has been convened to impart that the territorial scope of the Treaties is to be deduced by combining parts of a current Article with a set of prescribed amendments.
The text is gibberish or Volapûk for the reader of the Treaty of Lisbon, a completely unnecessary obfuscation of the information to be imparted, when it would have been simpler to write down the complete Article as amended.
***
In part one we saw that the Treaties apply to the member states, and we recapitulated the enlargement process and the consequent widening territorial or geographical scope of the Treaties. In this second part of the article we can turn our attention to more arcane details of applicability in the light of the Lisbon Treaty, although naming concrete territories and the expounding the limits of applicability would require further study.
Our next stop is obvious, Article 311a of the Treaty on the Functioning of the European Union (TFEU) where we see that the IGC is back at its enlightening best (OJ 17.12.2007 C 306/132):
293) Article 311 shall be repealed. A new Article 311a shall be inserted, with the wording of Article 299(2), first subparagraph, and Article 299(3) to (6); the text shall be amended as follows:
(a) the first subparagraph of paragraph 2 and paragraphs 3 to 6 shall be renumbered 1 to 5 and the following new introductory wording shall be inserted at the beginning of the Article:
‘In addition to the provisions of Article 49 C of the Treaty on European Union relating to the territorial scope of the Treaties, the following provisions shall apply:’;
(b) at the beginning of the first subparagraph of paragraph 2, renumbered 1, the words ‘the French overseas departments,’ shall be replaced by ‘Guadeloupe, French Guiana, Martinique, Réunion, Saint-Barthélemy, Saint-Martin’ and the words ‘in accordance with Article 299’ shall be added at the end;
(c) in paragraph 3, renumbered 2, the words ‘of this Treaty’ shall be deleted;
(d) in paragraph 6, renumbered 5, the introductory words ‘Notwithstanding the preceding paragraphs:’ shall be replaced by ‘Notwithstanding Article 49 C of the Treaty on European Union and paragraphs 1 to 4 of this Article:’;
(e) the following new paragraph shall be added at the end of the Article:
‘6. The European Council may, on the initiative of the Member State concerned, adopt a decision amending the status, with regard to the Union, of a Danish, French or Netherlands country or territory referred to in paragraphs 1 and 2. The European Council shall act unanimously after consulting the Commission.’.
***
We already saw the current Article 299 TEC in part one. While the application of the Treaties to the member states was elevated to the Treaty on European Union (TEU), the rest was left in the more mundane TFEU, but given a new number. Following the instructions given by our games organizers, we should end up with an Article 311a TFEU looking like this:
Article 311a TFEU
In addition to the provisions of Article 49c of the Treaty on European Union relating to the territorial scope of the Treaties, the following provisions shall apply:
1. The provisions of this Treaty shall apply to Guadeloupe, French Guiana, Martinique, Réunion, Saint-Barthélemy, Saint-Martin, the Azores, Madeira and the Canary Islands in accordance with Article 299.
2. The special arrangements for association set out in Part Four shall apply to the overseas countries and territories listed in Annex II.
The Treaties shall not apply to those overseas countries and territories having special relations with the United Kingdom of Great Britain and Northern Ireland which are not included in the aforementioned list.
3. The provisions of the Treaties shall apply to the European territories for whose external relations a Member State is responsible.
4. The provisions of the Treaties shall apply to the Åland Islands in accordance with the provisions set out in Protocol 2 to the Act concerning the conditions of accession of the Republic of Austria, the Republic of Finland and the Kingdom of Sweden.
5. Notwithstanding Article 49c of the Treaty on European Union and paragraphs 1 to 4 of this Article:
(a) the Treaties shall not apply to the Faeroe Islands;
(b) this Treaty shall not apply to the United Kingdom Sovereign Base Areas of Akrotiri and Dhekelia in Cyprus except to the extent necessary to ensure the implementation of the arrangements set out in the Protocol on the Sovereign Base Areas of the United Kingdom of Great Britain and Northern Ireland in Cyprus annexed to the Act concerning the conditions of accession of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic to the European Union and in accordance with the terms of that Protocol;
(c) the Treaties shall apply to the Channel Islands and the Isle of Man only to the extent necessary to ensure the implementation of the arrangements for those islands set out in the Treaty concerning the accession of new Member States to the European Economic Community and to the European Atomic Energy Community signed on 22 January 1972.
6. The European Council may, on the initiative of the Member State concerned, adopt a decision amending the status, with regard to the Union, of a Danish, French or Netherlands country or territory referred to in paragraphs 1 and 2. The European Council shall act unanimously after consulting the Commission.
***
We start with the rule that the Treaties apply to the territories of the member states (Article 49c TEU).
Territories outside Europe
Article 311a(1) TFEU includes the French, Portuguese and Spanish extra-European territories: Guadeloupe, French Guiana, Martinique, Réunion, Saint-Barthélemy, Saint-Martin, the Azores, Madeira and the Canary Islands.
As territories the Treaties are applicable pursuant to the main rule, but in accordance with the amended Article 299 TFEU the structural and economic situation of these territories is taken into account.
The situation is said to be compounded by their remoteness, insularity, small size, difficult topography and climate, economic dependence on a few products, the permanence and combination of which severely restrain their development. Therefore specific measures are allowed, aimed at laying down the conditions of application of the Treaties, including common policies.
The measures may concern particularly customs and trade policies, fiscal policy, free zones, agriculture and fisheries policies, conditions for supply of raw materials and essential consumer goods, state aids and conditions of access to structural funds and to horizontal Union programmes.
Associated overseas territories
According to Article 311a(2) special arrangements for association apply to the following overseas countries and territories listed in Annex II (taken from OJ 29.12.2006 C 321 E/186):
ANNEX II
OVERSEAS COUNTRIES AND TERRITORIES
to which the provisions of Part Four of the Treaty apply
— Greenland
— New Caledonia and Dependencies
— French Polynesia
— French Southern and Antarctic Territories
— Wallis and Futuna Islands
— Mayotte
— Saint Pierre and Miquelon
— Aruba
— Netherlands Antilles:
— Bonaire
— Curaçao
— Saba
— Sint Eustatius
— Sint Maarten
— Anguilla
— Cayman Islands
— Falkland Islands
— South Georgia and the South Sandwich Islands
— Montserrat
— Pitcairn
— Saint Helena and Dependencies
— British Antarctic Territory
— British Indian Ocean Territory
— Turks and Caicos Islands
— British Virgin Islands
— Bermuda
The association system is described in the current Articles 182 to 186 TEC, which live on with minimal change in the TFEU.
The Treaties do not apply to overseas countries and territories having special relations with the United Kingdom of Great Britain and Northern Ireland not included in the list.
Responsibility for external relations
The Treaties apply to the European territories for whose external relations a Member State is responsible.
Åland Islands
A European territory, the Åland Islands form an autonomous region of Finland with extended legislative powers and self-rule.
The relationship with the European Union was agreed in a protocol attached to the Accession Treaty of 1994, and one could speak of modified applicability.
European territories outside the Treaties
Although European, the territories mentioned in 311a(5) are not applicable to the Faeroe Islands and only marginally to the UK bases in Cyprus and to the Channel Islands and the Isle of Man.
***
While waiting for the (hopefully complete) consolidated versions of the Treaty of Lisbon, the student who wants to find general guidance on additional questions of applicability could find some useful information in Protocol (number 8) on the Treaties and Acts of Accession of the Kingdom of Denmark, Ireland and the United Kingdom of Great Britain and Northern Ireland, of the Hellenic Republic, of the Kingdom of Spain and the Portuguese Republic, and of Austria, the Republic of Finland and the Kingdom of Sweden, in the form they were attached to the Treaty establishing a Constitution for Europe (OJ 16.12.2004 C 310/274).
There are, for instance, provisions on Gibraltar, the Faroe Islands, the Channel Islands and the Isle of Man, Ceuta and Melilla and the Åland Islands.
Protocol (number 9) to the Constitutional Treaty contains, i.a. provisions on the sovereign base areas of the UK in Cyprus (page 328) as well as the suspension of the EU and EC ‘acquis’ in the areas of Cyprus outside the effective control of the government (page 341).
Ralf Grahn
Thursday, 7 February 2008
EU Treaty of Lisbon: Geographical scope I
Where are the Treaties of the European Union (EU) applicable? If a citizen of the EU manages to answer “In the member states”, it is a good answer. If he is able to name the member states, his response would be excellent for everyday purposes.
But we, as students of European integration, want to dig a little deeper. Therefore, we turn to the fresh accord between European governments, the Treaty of Lisbon. For comparison, we present the main provision in the current Treaty establishing the European Community (TEC) and mention the intermediary stages for those who want to follow the modifications step by step.
Since the territorial or geographical applicability of the EU Treaties is tied up with the membership of the Union, we recapitulate the different enlargement stages of the European Communities and the European Union.
Then, we add a few comments about the scope of the Reform Treaty. This is how far we go in part I.
After the proposed main provision in the Lisbon Treaty, we advance to the detailed provisions in a second part of this article, to be published later.
***
The intergovernmental conference (IGC 2007) agreed to insert the following Article 49c into the Lisbon Treaty version of the Treaty on European Union (TEU) (OJ 17.12.2007 C 306/40):
An Article 49 C shall be inserted:
Article 49c
1. The Treaties shall apply to the Kingdom of Belgium, Republic of Bulgaria, the Czech Republic, the Kingdom of Denmark, the Federal Republic of Germany, the Republic of Estonia, Ireland, the Hellenic Republic, the Kingdom of Spain, the French Republic, the Italian Republic, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Grand Duchy of Luxembourg, the Republic of Hungary, the Republic of Malta, the Kingdom of the Netherlands, the Republic of Austria, the Republic of Poland, the Portuguese Republic, Romania, the Republic of Slovenia, the Slovak Republic, the Republic of Finland, the Kingdom of Sweden and the United Kingdom of Great Britain and Northern Ireland.
2. The territorial scope of the Treaties is specified in Article 311a of the Treaty on the Functioning of the European Union.
***
The current corresponding Article is found in Article 299 of the Treaty establishing the European Community (TEC) (latest consolidated version of the TEU and TEC in OJ C 321 E/174 and 175, but amended by the 2003 Act of Accession regarding the latest entrants Bulgaria and Romania):
Article 299 TEC
1. This Treaty shall apply to the Kingdom of Belgium, the Czech Republic, the Kingdom of Denmark, the Federal Republic of Germany, the Republic of Estonia, the Hellenic Republic, the Kingdom of Spain, the French Republic, Ireland, the Italian Republic, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Grand Duchy of Luxembourg, the Republic of Hungary, the Republic of Malta, the Kingdom of the Netherlands, the Republic of Austria, the Republic of Poland, the Portuguese Republic, the Republic of Slovenia, the Slovak Republic, the Republic of Finland, the Kingdom of Sweden and the United Kingdom of Great Britain and Northern Ireland.
2. The provisions of this Treaty shall apply to the French overseas departments, the Azores, Madeira and the Canary Islands.
However, taking account of the structural social and economic situation of the French overseas departments, the Azores, Madeira and the Canary Islands, which is compounded by their remoteness, insularity, small size, difficult topography and climate, economic dependence on a few products, the permanence and combination of which severely restrain their development, the Council, acting by a qualified majority on a proposal from the Commission and after consulting the European Parliament, shall adopt specific measures aimed, in particular, at laying down the conditions of application of the present Treaty to those regions, including common policies.
The Council shall, when adopting the relevant measures referred to in the second subparagraph, take into account areas such as customs and trade policies, fiscal policy, free zones, agriculture and fisheries policies, conditions for supply of raw materials and essential consumer goods, State aids and conditions of access to structural funds and to horizontal Community programmes.
The Council shall adopt the measures referred to in the second subparagraph taking into account the special characteristics and constraints of the outermost regions without undermining the integrity and the coherence of the Community legal order, including the internal market and common policies.
3. The special arrangements for association set out in Part Four of this Treaty shall apply to the overseas countries and territories listed in Annex II to this Treaty.
This Treaty shall not apply to those overseas countries and territories having special relations with the United Kingdom of Great Britain and Northern Ireland which are not included in the aforementioned list.
4. The provisions of this Treaty shall apply to the European territories for whose external relations a Member State is responsible.
5. The provisions of this Treaty shall apply to the Åland Islands in accordance with the provisions set out in Protocol 2 to the Act concerning the conditions of accession of the Republic of Austria, the Republic of Finland and the Kingdom of Sweden.
6. Notwithstanding the preceding paragraphs:
(a) this Treaty shall not apply to the Faeroe Islands;
(b) this Treaty shall not apply to the United Kingdom Sovereign Base Areas of Akrotiri and Dhekelia in Cyprus except to the extent necessary to ensure the implementation of the arrangements set out in the Protocol on the Sovereign Base Areas of the United Kingdom of Great Britain and Northern Ireland in Cyprus annexed to the Act concerning the conditions of accession of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic to the European Union and in accordance with the terms of that Protocol;
(c) this Treaty shall apply to the Channel Islands and the Isle of Man only to the extent necessary to ensure the implementation of the arrangements for those islands set out in the Treaty concerning the accession of new Member States to the European Economic Community and to the European Atomic Energy Community signed on 22 January 1972.
***
I refer the reader who wants to compare the evolvement of the scope of the Treaties to the main provisions of the following intermediary stages:
The European Convention proposed an Article IV-4 Scope, under Part IV General and final provisions, with three dots at the end of paragraph 1 in anticipation of the ten entrants of May 2004. See draft Treaty establishing a Constitution for Europe, OJ 18.7.2003 C 169/91 and 92.
The IGC 2004 signed up to Article IV-440 Scope, under Part IV General and final provisions, with modifications in the Treaty establishing a Constitution for Europe. See OJ 16.12.2004 C 310/188 and 189.
***
The IGC 2007 was a tidying-up exercise in at least two respects, as far as Article 49c(1) TEU of the Treaty of Lisbon is concerned. The Article introduces a complete list of the member states of the European Union, all 27 of them, by including the latest accession countries Bulgaria and Romania.
The second clarification is the choice to mention only the member states in the more basic of the basic treaties, the TEU. The TEU and the Treaty on the Functioning of the European Union (TFEU) are equally binding, but the TEU could be described as being more equal than the other.
The general reader finds the needed information, the names of the member states, in the future TEU. The gritty detail is shifted to the TFEU for those want to delve deeper. This is done by the referral in Article 49c(2) to Article 311a TFEU.
***
Let us start with the main point, the spectacular enlargement of the European Communities. First there was the European Coal and Steel Community (ECSC), established by the Treaty of Paris 1951, which expired in 2002 after 50 years in force.
When only five of the six original members showed maturity enough to launch the European Defence Community and the European (Political) Community and the effort failed, the relaunch of European construction was achieved by the six founding members on a more modest scale by the Treaties of Rome 1957, establishing the European Economic Community (EEC) and the European Atomic Energy Community (EAEC or Euratom).
The six founding members of the ECSC, the EEC and Euratom were Belgium, France, (West) Germany, Italy, Luxembourg and the Netherlands.
Denmark, Ireland and the United Kingdom joined in 1973, bringing the membership to nine.
The Mediterranean enlargement followed in two phases, first Greece in 1981 and then Portugal and Spain in 1986. A Europe of twelve was born.
The first Eastern enlargement was not technically an accession, since the Federal Republic of Germany absorbed the German Democratic Republic in 1990.
A flavour of neutrality and non-alignment was added in 1995 with the accession of Austria, Finland and Sweden to what had become the European Union (EU) and the European Community (EC).
The abbreviation EU-15 started to make its appearance with increasing frequency as the EU headed towards the big bang of Eastern (and Mediterranean) enlargement. In May 2004 ten new states became EU members:
Cyprus, the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Malta, Poland, Slovakia and Slovenia (EU-25).
Bulgaria and Romania completed this enlargement round by joining the EU in 2007, raising the number of members to 27 and the population of the EU to around 490 million, some would say ‘an internal market of’, others ‘citizens’. (Of course, the internal market comprising the European Economic Area, EEA, is slightly larger than the EC, if we want to make the distinction.)
***
A few comments by your glossator:
As a treaty based organisation, the European Union has no territory primarily its own. The geographical extent of the EU is derived from its member states, being in principle the sum of its member states’ (European) territories.
Three things seem worth mentioning:
First, according to the wording, the Treaties do not apply “in” but primarily “to” the member states mentioned. Applicability “in” their territories could be said to be incidental.
Second, from the applicability of primary law (the Treaties) follows that the secondary legislation – regulations, directives and decisions – is applicable, too.
Third, international treaties concluded by the European Community (in the future the European Union) within its powers, are applied in the same territory.
Thus far, the scope of EU law looks pretty clear. We are ready to answer most of the questions most of the time, but we have yet to face the small print, which will be the subject of instalment II.
Ralf Grahn
But we, as students of European integration, want to dig a little deeper. Therefore, we turn to the fresh accord between European governments, the Treaty of Lisbon. For comparison, we present the main provision in the current Treaty establishing the European Community (TEC) and mention the intermediary stages for those who want to follow the modifications step by step.
Since the territorial or geographical applicability of the EU Treaties is tied up with the membership of the Union, we recapitulate the different enlargement stages of the European Communities and the European Union.
Then, we add a few comments about the scope of the Reform Treaty. This is how far we go in part I.
After the proposed main provision in the Lisbon Treaty, we advance to the detailed provisions in a second part of this article, to be published later.
***
The intergovernmental conference (IGC 2007) agreed to insert the following Article 49c into the Lisbon Treaty version of the Treaty on European Union (TEU) (OJ 17.12.2007 C 306/40):
An Article 49 C shall be inserted:
Article 49c
1. The Treaties shall apply to the Kingdom of Belgium, Republic of Bulgaria, the Czech Republic, the Kingdom of Denmark, the Federal Republic of Germany, the Republic of Estonia, Ireland, the Hellenic Republic, the Kingdom of Spain, the French Republic, the Italian Republic, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Grand Duchy of Luxembourg, the Republic of Hungary, the Republic of Malta, the Kingdom of the Netherlands, the Republic of Austria, the Republic of Poland, the Portuguese Republic, Romania, the Republic of Slovenia, the Slovak Republic, the Republic of Finland, the Kingdom of Sweden and the United Kingdom of Great Britain and Northern Ireland.
2. The territorial scope of the Treaties is specified in Article 311a of the Treaty on the Functioning of the European Union.
***
The current corresponding Article is found in Article 299 of the Treaty establishing the European Community (TEC) (latest consolidated version of the TEU and TEC in OJ C 321 E/174 and 175, but amended by the 2003 Act of Accession regarding the latest entrants Bulgaria and Romania):
Article 299 TEC
1. This Treaty shall apply to the Kingdom of Belgium, the Czech Republic, the Kingdom of Denmark, the Federal Republic of Germany, the Republic of Estonia, the Hellenic Republic, the Kingdom of Spain, the French Republic, Ireland, the Italian Republic, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Grand Duchy of Luxembourg, the Republic of Hungary, the Republic of Malta, the Kingdom of the Netherlands, the Republic of Austria, the Republic of Poland, the Portuguese Republic, the Republic of Slovenia, the Slovak Republic, the Republic of Finland, the Kingdom of Sweden and the United Kingdom of Great Britain and Northern Ireland.
2. The provisions of this Treaty shall apply to the French overseas departments, the Azores, Madeira and the Canary Islands.
However, taking account of the structural social and economic situation of the French overseas departments, the Azores, Madeira and the Canary Islands, which is compounded by their remoteness, insularity, small size, difficult topography and climate, economic dependence on a few products, the permanence and combination of which severely restrain their development, the Council, acting by a qualified majority on a proposal from the Commission and after consulting the European Parliament, shall adopt specific measures aimed, in particular, at laying down the conditions of application of the present Treaty to those regions, including common policies.
The Council shall, when adopting the relevant measures referred to in the second subparagraph, take into account areas such as customs and trade policies, fiscal policy, free zones, agriculture and fisheries policies, conditions for supply of raw materials and essential consumer goods, State aids and conditions of access to structural funds and to horizontal Community programmes.
The Council shall adopt the measures referred to in the second subparagraph taking into account the special characteristics and constraints of the outermost regions without undermining the integrity and the coherence of the Community legal order, including the internal market and common policies.
3. The special arrangements for association set out in Part Four of this Treaty shall apply to the overseas countries and territories listed in Annex II to this Treaty.
This Treaty shall not apply to those overseas countries and territories having special relations with the United Kingdom of Great Britain and Northern Ireland which are not included in the aforementioned list.
4. The provisions of this Treaty shall apply to the European territories for whose external relations a Member State is responsible.
5. The provisions of this Treaty shall apply to the Åland Islands in accordance with the provisions set out in Protocol 2 to the Act concerning the conditions of accession of the Republic of Austria, the Republic of Finland and the Kingdom of Sweden.
6. Notwithstanding the preceding paragraphs:
(a) this Treaty shall not apply to the Faeroe Islands;
(b) this Treaty shall not apply to the United Kingdom Sovereign Base Areas of Akrotiri and Dhekelia in Cyprus except to the extent necessary to ensure the implementation of the arrangements set out in the Protocol on the Sovereign Base Areas of the United Kingdom of Great Britain and Northern Ireland in Cyprus annexed to the Act concerning the conditions of accession of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic to the European Union and in accordance with the terms of that Protocol;
(c) this Treaty shall apply to the Channel Islands and the Isle of Man only to the extent necessary to ensure the implementation of the arrangements for those islands set out in the Treaty concerning the accession of new Member States to the European Economic Community and to the European Atomic Energy Community signed on 22 January 1972.
***
I refer the reader who wants to compare the evolvement of the scope of the Treaties to the main provisions of the following intermediary stages:
The European Convention proposed an Article IV-4 Scope, under Part IV General and final provisions, with three dots at the end of paragraph 1 in anticipation of the ten entrants of May 2004. See draft Treaty establishing a Constitution for Europe, OJ 18.7.2003 C 169/91 and 92.
The IGC 2004 signed up to Article IV-440 Scope, under Part IV General and final provisions, with modifications in the Treaty establishing a Constitution for Europe. See OJ 16.12.2004 C 310/188 and 189.
***
The IGC 2007 was a tidying-up exercise in at least two respects, as far as Article 49c(1) TEU of the Treaty of Lisbon is concerned. The Article introduces a complete list of the member states of the European Union, all 27 of them, by including the latest accession countries Bulgaria and Romania.
The second clarification is the choice to mention only the member states in the more basic of the basic treaties, the TEU. The TEU and the Treaty on the Functioning of the European Union (TFEU) are equally binding, but the TEU could be described as being more equal than the other.
The general reader finds the needed information, the names of the member states, in the future TEU. The gritty detail is shifted to the TFEU for those want to delve deeper. This is done by the referral in Article 49c(2) to Article 311a TFEU.
***
Let us start with the main point, the spectacular enlargement of the European Communities. First there was the European Coal and Steel Community (ECSC), established by the Treaty of Paris 1951, which expired in 2002 after 50 years in force.
When only five of the six original members showed maturity enough to launch the European Defence Community and the European (Political) Community and the effort failed, the relaunch of European construction was achieved by the six founding members on a more modest scale by the Treaties of Rome 1957, establishing the European Economic Community (EEC) and the European Atomic Energy Community (EAEC or Euratom).
The six founding members of the ECSC, the EEC and Euratom were Belgium, France, (West) Germany, Italy, Luxembourg and the Netherlands.
Denmark, Ireland and the United Kingdom joined in 1973, bringing the membership to nine.
The Mediterranean enlargement followed in two phases, first Greece in 1981 and then Portugal and Spain in 1986. A Europe of twelve was born.
The first Eastern enlargement was not technically an accession, since the Federal Republic of Germany absorbed the German Democratic Republic in 1990.
A flavour of neutrality and non-alignment was added in 1995 with the accession of Austria, Finland and Sweden to what had become the European Union (EU) and the European Community (EC).
The abbreviation EU-15 started to make its appearance with increasing frequency as the EU headed towards the big bang of Eastern (and Mediterranean) enlargement. In May 2004 ten new states became EU members:
Cyprus, the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Malta, Poland, Slovakia and Slovenia (EU-25).
Bulgaria and Romania completed this enlargement round by joining the EU in 2007, raising the number of members to 27 and the population of the EU to around 490 million, some would say ‘an internal market of’, others ‘citizens’. (Of course, the internal market comprising the European Economic Area, EEA, is slightly larger than the EC, if we want to make the distinction.)
***
A few comments by your glossator:
As a treaty based organisation, the European Union has no territory primarily its own. The geographical extent of the EU is derived from its member states, being in principle the sum of its member states’ (European) territories.
Three things seem worth mentioning:
First, according to the wording, the Treaties do not apply “in” but primarily “to” the member states mentioned. Applicability “in” their territories could be said to be incidental.
Second, from the applicability of primary law (the Treaties) follows that the secondary legislation – regulations, directives and decisions – is applicable, too.
Third, international treaties concluded by the European Community (in the future the European Union) within its powers, are applied in the same territory.
Thus far, the scope of EU law looks pretty clear. We are ready to answer most of the questions most of the time, but we have yet to face the small print, which will be the subject of instalment II.
Ralf Grahn
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