EU: "Community method" RIP – or a stake through its heart!

Why on Earth did they start a debate about the “Community method” now? (Opening shots here and more discussion here; ‘they’ meaning leading EU politicians)

At 50, the European Coal and Steel Community (ECSC) met its preordained fate and passed away (23 July 2002).



"Nobody" ever talks about the European Atomic Energy Community (EAEC or Euratom), although there is now a consolidated (updated) version of the Euratom Treaty.

When the Lisbon Treaty entered into force on 1 December 2009, the European Community disappeared into the mist of history, succeeded by the European Union. (In everyday speech the EU had taken over from the EC long before that, with only official documents and meticulous lawyers fighting a rearguard battle.)

In short, there is no (European) Community, if we take a practical view.



Requiescat in pace

“Old habits die hard”, we know, but this blog post argues that we should escort the term “Community method” back to its mausoleum, with full historical honours, the Ode to Joy playing.

RIP = Requiescat in pace (Rest in peace), or I’ll drive a stake through your heart!

To be really smug, we could ask: Why don’t 'they' read this blog and live longer, happier lives in the present?



In a December 2009 blog post, when the Treaty of Lisbon was fresh, I published a few notes on how the European Union makes laws:

Ordinary legislative procedure

In principle, the Lisbon Treaty entered into force on 1 December 2009. Article 289(1) of the Treaty on the Functioning of the European Union (TFEU) (OJEU 9.5.2008 C 115/172) defines the ordinary legislative procedure, referring to more detailed provisions in Article 294 TFEU:


Article 289(1) TFEU

1. The ordinary legislative procedure shall consist in the joint adoption by the European Parliament and the Council of a regulation, directive or decision on a proposal from the Commission. This procedure is defined in Article 294.



Historically, the “Community method” has been the shorthand expression for a triangle, where the Commission proposes and the Council and the European Parliament adopt the laws.

Here is how the Europa Glossary describes the Community method with a bit more detail:

The Community method is the expression used for the institutional operating mode set up in the first pillar of the European Union. It proceeds from an integration logic with due respect for the subsidiarity principle, and has the following salient features:
 Commission monopoly of the right of initiative;
 widespread use of qualified majority voting in the Council;
 an active role for the European Parliament;
 uniform interpretation of Community law by the Court of Justice.


In my view, the term “Community method” should be heading for the scrap-heap of history, replaced by “the ordinary legislative procedure”, when we have to be exact. In daily use “EU legislation”, “EU lawmaking” and other shorter expressions can be used, because the ordinary legislative procedure is the default mode.

Clarifications are needed mainly when the “special legislative procedure” is used (with a smaller role for the European Parliament) for lawmaking, or when we discuss intergovernmental decision making, as in the areas of foreign, security and defence policy.

Partly this methodological detour was caused by reflections on the future use of EU terms, partly by the fact that we are still seeing the tail end of new legislation approved under the Treaty of Nice, with the European Community still in existence.

The somewhat antiquated Europa Glossary page on the Community and intergovernmental methods is still there, and there is continued need for an explanation of this historically important political term, just as we visit the graves of our loved ones to connect with our past.

After the Coroner’s verdict and solemn reburial, we need a Baptist for the newborn.




Ralf Grahn

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.



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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.


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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.



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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: Special legislative procedure (VIII & detour)

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

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

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

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Materials

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



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In a legislative capacity

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


Article 7
Cases where the Council acts in its legislative capacity

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

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


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Open deliberations

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

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

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

Special public debates may be arranged on important issues.

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

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

The public discussions are available on the web.


Article 8
Council deliberations open to the public and public debates

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

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

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

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

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

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

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

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

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

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

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

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

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


***

Public votes etc.

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

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

Various final votes are made public.


Article 9
Making public votes, explanations of votes and minutes

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

The same rule shall apply for:

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

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

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

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

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

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

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

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

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

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


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Public access to Council documents

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

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


Council’s Rules of Procedure:


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

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Specific provisions



ANNEX II
SPECIFIC PROVISIONS REGARDING PUBLIC ACCESS TO COUNCIL DOCUMENTS



Article 1
Scope

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



Article 2
Consultation as regards third-party documents

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

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

(b) the document originates from a Member State and

was submitted to the Council before 3 December 2001; or

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

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

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

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

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



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

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

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



Article 4
Documents originating from Member States

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



Article 5
Referral of requests by Member States

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



Article 6
Address for applications

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



Article 7
Processing of initial applications

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



Article 8
Processing of confirmatory applications

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



Article 9
Charges

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



Article 10
Public register of Council documents

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

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



Article 11
Documents directly accessible to the public

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

2. For the purpose of this Article:

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

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

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

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

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

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

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

(a) provisional agenda of committees and working parties;

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

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

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

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

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

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

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

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


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

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


Ralf Grahn

EU: Special legislative procedure (VII)

The European Union has the shapeliest clay feet among international treaty based organisations.

Our Odyssey of the Council of the European Union and the special legislative procedure continues, taking us through the consolidated version of the Lisbon Treaty, published in the Official Journal of the European Union (OJEU) 9.5.2008 C 115.


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Energy taxes

According to Article 194 of the Treaty on the Functioning of the European Union (TFEU), energy policy measures are generally taken in accordance with the ordinary legislative procedure. Fiscal measures form an exception, being subject to unanimity and a special legislative procedure, where the European Parliament is only consulted:

Article 194(3) TFEU

3. By way of derogation from paragraph 2, the Council, acting in accordance with a special legislative procedure, shall unanimously and after consulting the European Parliament, establish the measures referred to therein when they are primarily of a fiscal nature.


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Associated overseas countries and territories

The association of overseas countries and territories is in the hands of the Council.


Article 203 TFEU
(ex Article 187 TEC)

The Council, acting unanimously on a proposal from the Commission, shall, on the basis of the experience acquired under the association of the countries and territories with the Union and of the principles set out in the Treaties, lay down provisions as regards the detailed rules and the procedure for the association of the countries and territories with the Union. Where the provisions in question are adopted by the Council in accordance with a special legislative procedure, it shall act unanimously on a proposal from the Commission and after consulting the European Parliament.


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International agreements

Some agreements with third countries or international organisations outside the exclusive scope of the common foreign and security policy may need the consent of the European Parliament, despite the special legislative procedure, as indicated by Article 218(6)(a) TFEU:


Article 218(6)(a) TFEU

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

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

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

(i) association agreements;

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

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

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

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


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European “election law”


A special legislative procedure applies to the uniform procedure for the European elections. Unanimity and ratifications have prevented that. This has left the second options of some common principles. As a consequence, the elections are not even held on the same day, but the European Parliament is given the uncommon role of proposing legislation:



Article 223 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.


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Future electoral reform?

There is a draft report by Andrew Duff of the European Parliament’s Committee on Constitutional Affairs (AFCO) on a proposal for a modification of the Act concerning the election of the Members of the European Parliament by direct universal suffrage of 20 September 1976; 15.10.2008, 2007/2207(INI). It is awaiting EP decision.





Ralf Grahn

EU: Special legislative procedure (VI)

To vote or not to vote: that is the question: Whether ‘tis nobler in the mind to suffer the secret vagaries of Council dealings, Or to take arms against a sea of apathy.

In my mind, every vote for a constructive alternative in the European elections counts. The Treaty of Lisbon would widen the area where the directly elected European Parliament legislates on an equal basis with the Council of the European Union.

But the intergovernmental Council remains the principal decision-maker and legislator in many policy areas.

If an issue is important or sensitive enough for the member states, they keep the reins and leave the European Parliament on the sidelines.

Our Odyssey of the Council of the European Union and the special legislative procedure continues, taking us through the consolidated version of the Lisbon Treaty, published in the Official Journal of the European Union (OJEU) 9.5.2008 C 115.

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Social policy

In EU terms social policy is mainly concerned with employment and working conditions. Action by the European Union is generally a complement to member states’ action. According to Article 153(1) and (2) of the Treaty on the Functioning of the European Union (TFEU), in the following fields the Council shall act unanimously, in accordance with a special legislative procedure, after consulting the European Parliament and the Economic and Social Committee and the Committee of the Regions (paragraph 1):




(c) social security and social protection of workers;

(d) protection of workers where their employment contract is terminated;

(f) representation and collective defence of the interests of workers and employers, including codetermination, subject to paragraph 5;

(g) conditions of employment for third-country nationals legally residing in Union territory;


However, the Council, acting unanimously on a proposal from the Commission, after consulting the European Parliament, may decide to render the ordinary legislative procedure applicable to paragraph 1(d), (f) and (g).

An enabling clause (passerelle) like this may be more important in principle than in practice, because a move to qualified majority voting and the ordinary legislative procedure requires unanimity, which was not in existence when the treaty was agreed. But it would make the procedure more flexible, since laborious treaty amendment and ratifications would be unnecessary.

Anyway, the enabling clause (passerelle) is blocked with regard to social security and social protection of workers; paragraph 1(c).


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Research and technological development

According to Article 182 TFEU, the multiannual framework programme for research and technological development, is adopted by the European Parliament and the Council, acting in accordance with the ordinary legislative procedure after consulting the Economic and Social Committee.


But the implementing specific programmes are adopted by the Council, acting in accordance with a special legislative procedure and after consulting the European Parliament and the Economic and Social Committee; paragraphs 3 and 4.


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Environment

There has been much talk about the European Union’s role in protecting the environment (cf. Article 191 TFEU).

The ordinary legislative procedure applies as a rule, according Article 192(1) TFEU, but the second paragraph lists the exceptions subject to unanimity and a special legislative procedure:


Article 192(2) TFEU

2. By way of derogation from the decision-making procedure provided for in paragraph 1 and without prejudice to Article 114, the Council acting unanimously in accordance with a special legislative procedure and after consulting the European Parliament, the Economic and Social Committee and the Committee of the Regions, shall adopt:

(a) provisions primarily of a fiscal nature;

(b) measures affecting:

— town and country planning,

— quantitative management of water resources or affecting, directly or indirectly, the availability of those resources,

— land use, with the exception of waste management;

(c) measures significantly affecting a Member State's choice between different energy sources and the general structure of its energy supply.


**

Here, too, in a second subparagraph there is a passerelle, opening up at least a theoretical possibility to shift to qualified majority voting at some future date:


The Council, acting unanimously on a proposal from the Commission and after consulting the
European Parliament, the Economic and Social Committee and the Committee of the Regions,
may make the ordinary legislative procedure applicable to the matters referred to in the
first subparagraph.


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Comment


In general ‘special legislative procedure’ can be read as a prognosis for either:

a) no EU legislation, or
b) legislation of low quality (based on the lowest common denominator).

In addition, although the European Parliament is normally consulted, its opinion lacks power. Thus, the process is less transparent and the outcome is less legitimate than legislation based on the ordinary legislative procedure (co-decision).



Ralf Grahn

EU: Special legislative procedure (V)

Once in a blue moon a special legislative procedure facilitates change by replacing treaty level change including ratifications. We find an example concerning the excessive deficit procedure.

On the other hand, usually unanimous Council legislation according to a special legislative procedure is an indication that unanimity lacked in the first place and is hardly to be expected later. Despite catastrophic results, prudential supervision seems to be a case in point.

Our Odyssey of the Council of the European Union and the special legislative procedure, takes us through the consolidated version of the Lisbon Treaty, published in the Official Journal of the European Union (OJEU) 9.5.2008 C 115.


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Excessive deficit procedure

Article 126 of the Treaty on the Functioning of the European Union (TFEU) spells out principle (half forgotten due to the economic crisis) that EU member states shall avoid excessive government deficits. It then lays down the roles of the Commission, the Economic and Financial Committee and the Council leading to an assessment whether an excessive deficit exists, as well as recommendations and measures.

Additional provisions concerning the procedures are found in Protocol (No 12) on the excessive deficit procedure. The Protocol is legally binding and it contains treaty level provisions. Amending them would require both unanimous agreement and ratifications, but here the member states have agreed to facilitate change to a degree. The provisions of the Protocol may be replaced unanimously by a special legislative procedure, without time-consuming ratifications (Article 126(14) TFEU).


Article 126(4) TFEU

14. Further provisions relating to the implementation of the procedure described in this Article are set out in the Protocol on the excessive deficit procedure annexed to the Treaties.

The Council shall, acting unanimously in accordance with a special legislative procedure and after consulting the European Parliament and the European Central Bank, adopt the appropriate provisions which shall then replace the said Protocol.

Subject to the other provisions of this paragraph, the Council shall, on a proposal from the Commission and after consulting the European Parliament, lay down detailed rules and definitions for the application of the provisions of the said Protocol.


***

ECB and prudential supervision

Article 127 TFEU sets out the objectives and the tasks of the European System of Central Banks (ESCB) and the European Central Bank (ECB). The ESCB shall contribute to the smooth conduct of policies pursued by the competent (national) authorities relating to the prudential supervision of credit institutions and the stability of the financial system.

Before the current financial and economic crisis, the member states’ governments we checked (United Kingdom, Sweden, Finland) congratulated themselves for retaining supervision at the national level. Even after the catastrophic results, leading to mind-boggling rescue operations involving EU-wide capital injections and guarantees of 3,000 billion euros, it is unsure to what extent the EU governments are prepared to create effective supervisory structures.

Just in case, the Lisbon Treaty contains the possibility to empower the European Central Bank, but subject to improbable unanimity and a special legislative procedure. The insurance sector is excluded even from the remote possibility.


Article 127(6) TFEU

6. The Council, acting by means of regulations in accordance with a special legislative procedure, may unanimously, and after consulting the European Parliament and the European Central Bank, confer specific tasks upon the European Central Bank concerning policies relating to the prudential supervision of credit institutions and other financial institutions with the exception of insurance undertakings.


***

We have seen one facilitating and one obstructing example of the special legislative procedure, where a unanimous Council is the main actor and the European Parliament is only consulted.



Ralf Grahn

EU: Special legislative procedure (IV)

European politics on the never-never plan.

The dynamics – if you can call them that – of European integration are such that 26 member states may see the need for common legislation, but a treaty has to be concluded by every member.

Enter Political Fudge.

One stubborn member state holds out, while the rest manage to consecrate the principle of future legislation, subject to unanimity and a special legislative procedure.

The European Union can proudly proclaim the potential to act, but nothing comes of it as long as even one member state invokes its veto. The directly elected European Parliament is marginalised.

We continue our Odyssey of the Council of the European Union and the special legislative procedure, as laid down in the consolidated version of the Lisbon Treaty, published in the Official Journal of the European Union (OJEU) 9.5.2008 C 115.


***

Indirect taxes

Harmonisation of VAT and other indirect taxes requires unanimity and a special legislative procedure.


Article 113 TFEU
(ex Article 93 TEC)

The Council shall, acting unanimously in accordance with a special legislative procedure and after consulting the European Parliament and the Economic and Social Committee, adopt provisions for the harmonisation of legislation concerning turnover taxes, excise duties and other forms of indirect taxation to the extent that such harmonisation is necessary to ensure the establishment and the functioning of the internal market and to avoid distortion of competition.


***

Harmonisation of taxes, free movement and workers’ rights


Without qualified majority decisions there would be no working internal market, just a nice principle in the Treaty of Rome (EEC).

The ordinary legislative procedure applies to the approximation (harmonisation) of legislation aimed at the establishment and functioning of the internal market, with the exception of fiscal provisions, the free movement of persons and the rights and interests of employed persons (Article 114).

Unanimity and a special legislative procedure apply to the exceptions.


Article 115 TFEU
(ex Article 94 TEC)

Without prejudice to Article 114, the Council shall, acting unanimously in accordance with a special legislative procedure and after consulting the European Parliament and the Economic and Social Committee, issue directives for the approximation of such laws, regulations or administrative provisions of the Member States as directly affect the establishment or functioning of the internal market.


***

European intellectual property rights

The Treaty of Lisbon would allow the creation of European intellectual property rights according to the ordinary legislative procedure, but the language arrangements have proven to be as vexed as ever (Article 118).


Article 118 TFEU, second subparagraph

The Council, acting in accordance with a special legislative procedure, shall by means of regulations establish language arrangements for the European intellectual property rights. The Council shall act unanimously after consulting the European Parliament.


***

The European Union is as strong as its weakest link.



Ralf Grahn

EU: Special legislative procedure (III)

Libertas and other anti-intellectuals propagate a distorted picture of a mythical “Brussels”, where unelected officials swamp Europeans with harmful legislation. Instead of political programmes, they offer Jeremiads.

In the best case, these anti-EU crusaders are only deluded fools, although able to influence the ignorant. This should be enough for every informed voter to trust someone else, but I suspect that these anti-campaigners are not looking for supporters with critical faculties and basic knowledge.

In the worst case, these distortionists are perfectly aware of the reality, but consider it unfit for public consumption.

Let it be said: The Commission (where the unelected civil servants reside, just as their counterparts elsewhere are unelected) does not legislate in the main. It may be given limited powers to enact implementing legislation on the basis of existing legislation. The Commission proposes and administers. (In my view, the Commission should become a politically accountable government.)

The legislative powers belong to the Council, where the politically accountable ministers of the EU member states meet (not an ideal arrangement in my opinion, since their mandate is national, not an EU one). But unelected?

In some cases the Council of the European Union legislates on its own, or with marginal participation by the European Parliament, often unanimously, sometimes with high hurdles (qualified majority). This is the special legislative procedure of which we are going to see a few more examples.

(According to the Treaty of Lisbon, the directly elected European Parliament participates on an equal basis in many areas of legislation. This is usually called codecision, in the Lisbon Treaty officially the ordinary legislative procedure. Even in these cases large majorities are required in the Council.)


***

A few more examples of the special legislative procedure, as presented in the consolidated version of the Lisbon Treaty, published in the Official Journal of the European Union (OJEU) 9.5.2008 C 115.



***



External borders

Various measures concerning the external borders and short-stay residence permits are enacted by the ordinary legislative procedure (Article 77 TFEU). However, the right to move and reside freely within the territory of the member states is of interest to EU citizens. For facilitating measures, a special legislative procedure and unanimity are required:


Article 77(3) TFEU

3. If action by the Union should prove necessary to facilitate the exercise of the right referred to in Article 20(2)(a), and if the Treaties have not provided the necessary powers, the Council, acting in accordance with a special legislative procedure, may adopt provisions concerning passports, identity cards, residence permits or any other such document. The Council shall act unanimously after consulting the European Parliament.


***

Family law

Judicial cooperation in civil matters having cross-border implications can advance by the ordinary legislative procedure (Article 81 TFEU). Cross-border family situations are important for millions of EU residents. The member states have however exempted family law matters by special safeguards:


Article 81(3) TFEU

3. Notwithstanding paragraph 2, measures concerning family law with cross-border implications shall be established by the Council, acting in accordance with a special legislative procedure. The Council shall act unanimously after consulting the European Parliament.

The Council, on a proposal from the Commission, may adopt a decision determining those aspects of family law with cross-border implications which may be the subject of acts adopted by the ordinary legislative procedure. The Council shall act unanimously after consulting the European Parliament.

The proposal referred to in the second subparagraph shall be notified to the national Parliaments. If a national Parliament makes known its opposition within six months of the date of such notification, the decision shall not be adopted. In the absence of opposition, the Council may adopt the decision.


***

Cross-border crime

We like to move around freely, but we want effective police action to curb cross-border crime. The ordinary legislative procedure applies to certain serious cross-border crimes, according to Article 83 TFEU. But new areas require unanimity. Minimum rules follow the previous legislative procedure:


Article 83(2) TFEU

2. If the approximation of criminal laws and regulations of the Member States proves essential to ensure the effective implementation of a Union policy in an area which has been subject to harmonisation measures, directives may establish minimum rules with regard to the definition of criminal offences and sanctions in the area concerned. Such directives shall be adopted by the same ordinary or special legislative procedure as was followed for the adoption of the harmonisation measures in question, without prejudice to Article 76.


***

European Public Prosecutor


The first subparagraph of Article 86(1) TFEU contains the basic principle on the establishment of the European Public Prosecutor’s Office, by a special legislative procedure, although nobody believes in a unanimous decision. (Thus, the choreography leading to enhanced cooperation is in place.)

Article 86(1) TFEU, first subparagraph


1. In order to combat crimes affecting the financial interests of the Union, the Council, by means
of regulations adopted in accordance with a special legislative procedure, may establish a European
Public Prosecutor's Office from Eurojust. The Council shall act unanimously after obtaining the
consent of the European Parliament.


***

Operational police cooperation

Isn’t effective police cooperation in the interest of law-abiding citizens? Article 87(1) concerns the establishment of police cooperation involving all the member states' competent authorities, including police, customs and other specialised law enforcement services in relation to the prevention, detection and investigation of criminal offences; paragraph 2 lists measures falling under the ordinary legislative procedure.

Paragraph 3 reserves special treatment for operational police cooperation. If unanimity and a special legislative procedure fail, enhanced cooperation may follow between a group of member states.


Article 87(3) TFEU

3. The Council, acting in accordance with a special legislative procedure, may establish measures concerning operational cooperation between the authorities referred to in this Article. The Council shall act unanimously after consulting the European Parliament.

In case of the absence of unanimity in the Council, a group of at least nine Member States may request that the draft measures be referred to the European Council. In that case, the procedure in the Council shall be suspended. After discussion, and in case of a consensus, the European Council shall, within four months of this suspension, refer the draft back to the Council for adoption.

Within the same timeframe, in case of disagreement, and if at least nine Member States wish to establish enhanced cooperation on the basis of the draft measures concerned, they shall notify the European Parliament, the Council and the Commission accordingly. In such a case, the authorisation to proceed with enhanced cooperation referred to in Article 20(2) of the Treaty on European Union and Article 329(1) of this Treaty shall be deemed to be granted and the provisions on enhanced cooperation shall apply.

The specific procedure provided for in the second and third subparagraphs shall not apply to acts which constitute a development of the Schengen acquis.


***

Police operations in another member state

The rules for operations police and other authorities in the territory of another member state are enacted according to a special legislative procedure, unanimously.


Article 89 TFEU
(ex Article 32 TEU)

The Council, acting in accordance with a special legislative procedure, shall lay down the conditions and limitations under which the competent authorities of the Member States referred to in Articles 82 and 87 may operate in the territory of another Member State in liaison and in agreement with the authorities of that State. The Council shall act unanimously after consulting the European Parliament.


***


From the viewpoint of an EU citizen, I would hope for more problem solving action and less fretting about sovereignty.


Ralf Grahn

EU: Special legislative procedure (II)

The principle of conferred (attributed) powers. The principles of subsidiarity and proportionality. The super majorities required by qualified majority voting (QMV); in part deferred until 2017. Enough limitations?

Not enough, says an EU member state or two; this is sensitive business. So the Treaty of Lisbon, itself the denominator of the least willing, hedges in legislation behind the walls of unanimity and the special legislative procedure.

Just as a reminder: There would have been no working internal market, if the member states had not abandoned the unanimity rule in important areas.

We continue to look at provisions where the Treaty of Lisbon retains the special legislative procedure, which leaves the directly elected European Parliament on the margins and normally offers little prospect of progress (unanimity).

In these cases the intergovernmental Council of the European Union is the decisive institution.


***

Diplomatic and consular protection

The principle of diplomatic or consular protection for unrepresented EU citizens is stated in Article 23 TFEU. The member states negotiate internationally and adopt the necessary provisions, but coordination and cooperation measures may be adopted within the EU framework, according to a special legislative procedure:


Article 23 TFEU
(ex Article 20 TEC)

Every citizen of the Union shall, in the territory of a third country in which the Member State of which he is a national is not represented, be entitled to protection by the diplomatic or consular authorities of any Member State, on the same conditions as the nationals of that State. Member States shall adopt the necessary provisions and start the international negotiations required to secure this protection.

The Council, acting in accordance with a special legislative procedure and after consulting the European Parliament, may adopt directives establishing the coordination and cooperation measures necessary to facilitate such protection.


***

EU citizenship rights

The second paragraph of Article 25 TFEU offers a slim chance of strengthening EU citizenship rights, by unanimous decision and approval at national level:



Article 25 TFEU, second paragraph

On this basis, and without prejudice to the other provisions of the Treaties, the Council, acting unanimously in accordance with a special legislative procedure and after obtaining the consent of the European Parliament, may adopt provisions to strengthen or to add to the rights listed in Article 20(2). These provisions shall enter into force after their approval by the Member States in accordance with their respective constitutional requirements.


***

Restricting capital movements

Here is a rare example of a provision, where the special legislative procedure does not limit chances for progress, but is designed to make it difficult to back-track from existing measures which have liberalised the free movement of capital with regard to third countries:


Article 64(3) TFEU


3. Notwithstanding paragraph 2, only the Council, acting in accordance with a special legislative procedure, may unanimously, and after consulting the European Parliament, adopt measures which constitute a step backwards in Union law as regards the liberalisation of the movement of capital to or from third countries.


***


Why not see the European Union more as a means to reach pragmatic solutions for its citizens and firms?


Ralf Grahn

EU: Special legislative procedure (I)

We have seen numerous examples of the European Council and the Council subject to the unanimity rule, within the common foreign and security policy (CFSP), the common security and defence policy (CSDP), institutional reform and other issues.

In the area of legislation, far from all issues are decided by the ordinary legislative procedure (codecision) even if the Treaty of Lisbon enters into force. Unanimous decisions are required in many instances.

According to the Lisbon Treaty, the intergovernmental Council of the European Union acts according to a special legislative procedure in cases where the directly elected European is less than an equal co-legislator.


***

Consolidated Lisbon Treaty

Here are examples of a special legislative procedure according to the Treaty on the Functioning of the European Union (TFEU). Our source is the consolidated version of the Lisbon Treaty published in the Official Journal of the European Union (OJEU) 9.5.2008 C 115.


***

Combating discrimination

Unanimity and a special legislative procedure for Council legislation:


Article 19(1) TFEU
(ex Article 13 TEC)

1. Without prejudice to the other provisions of the Treaties and within the limits of the powers conferred by them upon the Union, the Council, acting unanimously in accordance with a special legislative procedure and after obtaining the consent of the European Parliament, may take appropriate action to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation.


***

Free movement of persons

Article 21 TFEU concerns the free movement of persons and necessary legislation. The third paragraph requires unanimity and lays down a special legislative procedure, when the Council adopts measures concerning social security or social protection:


Article 21(3) TFEU

3. For the same purposes as those referred to in paragraph 1 and if the Treaties have not provided the necessary powers, the Council, acting in accordance with a special legislative procedure, may adopt measures concerning social security or social protection. The Council shall act unanimously after consulting the European Parliament.


***

Municipal elections

Unanimity and a special legislative procedure apply to the detailed arrangements for EU citizens voting or standing as candidates in municipal elections in their state of residence, where they are not nationals:


Article 22(1) TFEU
(ex Article 19 TEC)

1. Every citizen of the Union residing in a Member State of which he is not a national shall have the right to vote and to stand as a candidate at municipal elections in the Member State in which he resides, under the same conditions as nationals of that State. This right shall be exercised subject to detailed arrangements adopted by the Council, acting unanimously in accordance with a special legislative procedure and after consulting the European Parliament; these arrangements may provide for derogations where warranted by problems specific to a Member State.


***

European elections

Corresponding provisions apply to the European elections:


Article 22(2) TFEU

2. Without prejudice to Article 223(1) and to the provisions adopted for its implementation, every citizen of the Union residing in a Member State of which he is not a national shall have the right to vote and to stand as a candidate in elections to the European Parliament in the Member State in which he resides, under the same conditions as nationals of that State. This right shall be exercised subject to detailed arrangements adopted by the Council, acting unanimously in accordance with a special legislative procedure and after consulting the European Parliament; these arrangements may provide for derogations where warranted by problems specific to a Member State.


***


We have split the examples of the Council acting according to a special legislative procedure into a number of posts.



Ralf Grahn

EU TFEU: Reporting and improving citizens’ rights

We conclude our survey of existing and proposed rights for EU citizens by looking at the reporting requirements for the Commission. Under the Lisbon Treaty strengthening our citizenship rights still has to pass the proverbial eye of the needle.

***

In the Treaty of Lisbon (ToL), Part Two Non-discrimination and citzenship, of the amended Treaty establishing the European Community (TEC), renamed the Treaty on the Functioning of the European Union (TFEU), the intergovernmental conference (IGC 2007) made the following change to Article 22 TEC (OJ 17.12.2007 C 306/52):

38) In Article 22, second paragraph, the words ‘the rights laid down in this Part, which it shall recommend to the Member States for adoption in accordance with their respective constitutional requirements’ shall be replaced by ‘the rights listed in Article 17(2). These provisions shall enter into force after their approval by the Member States in accordance with their respective constitutional requirements.’.

***

Still waiting for the Council to confirm that it has relented and now intends to publish the consolidated versions of the Lisbon Treaty, we go to Article 22 TEC, the one to be amended, under Part Two Citizenship (available in the latest consolidation of the TEU and the TEC, OJ 29.12.2006 C 321 E/51):

Article 22 TEC

The Commission shall report to the European Parliament, to the Council and to the Economic and Social Committee every three years on the application of the provisions of this Part. This report shall take account of the development of the Union.

On this basis, and without prejudice to the other provisions of this Treaty, the Council, acting unanimously on a proposal from the Commission and after consulting the European Parliament, may adopt provisions to strengthen or to add to the rights laid down in this Part, which it shall recommend to the Member States for adoption in accordance with their respective constitutional requirements.

***

We now have to insert the express amendment and watch out for changes lurking out there among the horizontal amendments (points 2(b), 3 and 5) and check the annexed Tables of equivalences to arrive at what should be the amended Article as consolidated:

Article 22 TFEU (ToL), after renumbering Article 25 TFEU

The Commission shall report to the European Parliament, to the Council and to the Economic and Social Committee every three years on the application of the provisions of this Part. This report shall take account of the development of the Union.

On this basis, and without prejudice to the other provisions of the Treaties, the Council, acting unanimously in accordance with a special legislative procedure and after obtaining the consent of the European Parliament, may adopt provisions to strengthen or to add to the rights listed in Article 17(2) [TFEU (ToL), renumbered 20(2) TFEU]. These provisions shall enter into force after their approval by the Member States in accordance with their respective constitutional requirements.

***

Arguably, the most remarkable stage of the long reform process generally was the European Convention leading to the draft Treaty establishing a Constitution for Europe. But in Non-discrimination and citizenship under Title II of Part III the Convention was far from radical. The corresponding Article III-13 looked like this (OJ 18.7.2003 C 169/30):

Article III-13 Draft Constitution

The Commission shall report to the European Parliament, to the Council of Ministers and to the Economic and Social Committee every three years on the application of the provisions of Article I-8 and of this Title. This report shall take account of the development of the Union.

On this basis, and without prejudice to the other provisions of the Constitution, a European law or framework law of the Council of Ministers may add to the rights laid down in Article I-8. The Council of Ministers shall act unanimously after obtaining the consent of the European Parliament. The law or framework law concerned shall not enter into force until it is approved by the Member States in accordance with their respective constitutional requirements.

***

The reporting requirement in paragraph 1 may look the same, but the draft Constitution widened the scope, because the Title expanded to encompass non-discrimination. (Article I-8 was the main provision on citizenship.)

Paragraph 2 of the draft Constitution cautiously retained the legal base for improving citizens’ rights, subject to unanimity in the Council and ratification by the member states. The position of the European Parliament was improved, from mere consultation to consent.

***

The IGC 2004, under Title II Non-discrimination and citizenship, followed the wording of the draft with only adaptations of terminology and referral, with ‘On the basis of this report’ perhaps intended to be somewhat more restrictive than ‘On this basis’. See OJ 16.12.2004 C 310/57:

Article III-129 Constitution

The Commission shall report to the European Parliament, to the Council and to the Economic and Social Committee every three years on the application of Article I‑10 and of this Title. This report shall take account of the development of the Union.

On the basis of this report, and without prejudice to the other provisions of the Constitution, a European law or framework law of the Council may add to the rights laid down in Article I-10. The Council shall act unanimously after obtaining the consent of the European Parliament. The law or framework law concerned shall not enter into force until it is approved by the Member States in accordance with their respective constitutional requirements.

***

The Lisbon Treaty took over the substance of the Constitutional Treaty, although it reverted to the TEC's and the draft Constitution’s beginning of paragraph 2, ‘On this basis’, perhaps a subtle indication of the will to mark the Council’s independence in relation to the Commission’s report.

All in all, the citizens’ initiative excepted the developments of EU citizens’ rights are hardly perceptible from the TEC through the draft Constitution and the Constitution to the Lisbon Treaty.

***

Further reading is offered by the latest report by the Commission, the “Fifth Report on Citizenship of the Union (1 May 2004 – 30 June 2007)”, Brussels 15.2.2008, COM (2008) 85 final, and the accompanying Commission Staff Working Document, SEC (2008) 197.


Ralf Grahn

EU TFEU: Diplomatic or consular protection

Think of yourself in a faraway country, where your home country is unrepresented, if your companion dies, you are in a serious accident or fall seriously ill, or you are (wrongly) arrested or detained, or you are mugged or raped, or your money and passport are stolen and you lack the means to return home.

The Maastricht Treaty (1992) promised damsels and other EU citizens in distress in third countries diplomatic or consular protection by another member state’s diplomatic or consular authorities, if their own country is not represented where the calamities occurred.

But even after the Amsterdam and Nice revisions, the Treaty on European Union leaves the practicalities in the hands of the member state governments ‘among themselves’, without offering the EU any powers.

The Asian tsunami and the war in Lebanon have served as reminders that not only individual misfortunes, but large disasters can put considerable groups of EU citizens at risk.

***

The intergovernmental conference (IGC 2007) decided to amend Article 20 of the Treaty establishing the European Community (TEC), and the Treaty of Lisbon (ToL) changed the name of the treaty to become the Treaty on the Functioning of the European Union (TFEU). See OJ 17.12.2007 C 306/52:

36) In Article 20, the words ‘establish the necessary rules among themselves and’ shall be replaced by ‘adopt the necessary provisions and’. The following new paragraph shall be added:

‘The Council, acting in accordance with a special legislative procedure and after consulting the European Parliament, may adopt directives establishing the coordination and cooperation measures necessary to facilitate such protection.’.

***

The current Article 20 TEC is found in the latest consolidated version of TEU and the TEC, in OJ 29.12.2006 C 321/50:

Article 20 TEC

Every citizen of the Union shall, in the territory of a third country in which the Member State of
which he is a national is not represented, be entitled to protection by the diplomatic or consular
authorities of any Member State, on the same conditions as the nationals of that State. Member
States shall establish the necessary rules among themselves and start the international negotiations required to secure this protection.


***

The consolidated Lisbon Treaty version of Article 20 should look like this, in Part Two Non-discrimination and citizenship:

Article 20 TFEU (ToL), after renumbering Article 23 TFEU

Every citizen of the Union shall, in the territory of a third country in which the Member State of
which he is a national is not represented, be entitled to protection by the diplomatic or consular
authorities of any Member State, on the same conditions as the nationals of that State. Member
States shall adopt the necessary provisions and start the international negotiations required to secure this protection.

The Council, acting in accordance with a special legislative procedure and after consulting the European Parliament, may adopt directives establishing the coordination and cooperation measures necessary to facilitate such protection.

***

How does the Lisbon Treaty look compared to the preceding draft Treaty establishing a Constitution for Europe? The European Convention proposed (OJ 18.7.2003 C 169/30):

Article III-11 Draft Constitution

Member States shall adopt the necessary provisions to secure diplomatic and consular protection of citizens of the Union in third countries, as referred to in Article I-8.

A European law of the Council of Ministers may establish the measures necessary to facilitate such protection. The Council of Ministers shall act after consulting the European Parliament.

***

The following stage was the IGC 2004 leading to the Treaty establishing a Constitution for Europe (OJ 16.12.2004 C 310/57):

Article III-127 Constitution

Member States shall adopt the necessary provisions to secure diplomatic and consular protection of citizens of the Union in third countries, as referred to in Article I-10(2)(c).

Member States shall commence the international negotiations required to secure this protection.

A European law of the Council may establish the measures necessary to facilitate such protection. The Council shall act after consulting the European Parliament.

***

Article 20 TEC left the tasks of establishing rules and negotiating internationally to the member states (bilaterally). The draft Constitution offered the opportunity to establish EU measures to facilitate protection for Union citizens.

The Constitutional Treaty added paragraph 2, which reinserted the international negotiations to be conducted by the member states.

The Lisbon Treaty adds the words ‘coordination and cooperation’ measures to limit the scope compared to the Constitution of the legal base for directives to be adopted by the Council, in accordance with the IGC 2007 Mandate, which said (point 19e): In Article 20 (diplomatic and consular protection), as amended in the 2004 IGC, the legal basis will be amended so as to provide in this field for adoption of directives establishing coordination and cooperation measures.

***

From an EU citizen’s point of view, diplomatic (state to state action) and consular protection (individual assistance) illustrate the ‘achievements’ of pure intergovernmental cooperation between sovereign nation states. It took the member states three years from the signing of the Treaty of Maastricht to arrive at a common decision:

95/553/EC: Decision of the Representatives of the Governments of the Member States meeting within the Council of 19 December 1995 regarding protection for citizens of the European Union by diplomatic and consular representations

The one page decision seems as anxious to avoid financial assistance, and to guarantee full repayment in cases of extreme distress, as to alleviate suffering.

This international agreement then had to be ratified by the member states, entering into force in 2002, about ten years from the signing of the Maastricht Treaty.

***

The member states have managed to agree on another item, namely on a uniform format for an emergency travel document:

96/409/CSFP: Decision of the Representatives of the Governments of the Member States, meeting within the Council of 25 June 1996 on the establishment of an emergency travel document (See the consolidated version from 1.1.2007)

In addition, the member states have agreed on non-binding Guidelines on consular protection of EU citizens in third countries (Council document 10109/06).

***

The Charter of Fundamental Rights of the European Union, a compilation of existing rights, has a Title V Citizens’ rights, where the following are mentioned:

Article 39 Right to vote and to stand as a candidate at elections to the European Parliament

Article 40 Right to vote and to stand as a candidate at municipal elections

Article 41 Right to good administration

Article 42 Right of access to documents

Article 43 European Ombudsman

Article 44 Right to petition

Article 45 Freedom of movement and of residence

Article 46 Diplomatic and consular protection

***

Diplomatic and consular protection is today’s subject, so here is the Article in question (OJ 14.12.2007 C 303/12):

Article 46 Charter
Diplomatic and consular protection

Every citizen of the Union shall, in the territory of a third country in which the Member State of which he or she is a national is not represented, be entitled to protection by the diplomatic or consular authorities of any Member State, on the same conditions as the nationals of that Member State.

***

The Explanations relating to the Charter of Fundamental Rights deal briefly with Article 46 (OJ 14.12.2007 C 303/29):

Explanation on Article 46 — Diplomatic and consular protection

The right guaranteed in this Article is the right guaranteed by Article 20 of the Treaty on the Functioning of the European Union (cf. also the legal base in Article 23). In accordance with Article 52(2) of the Charter, it applies under the conditions defined in these two Articles.

***

The Commission has not been impressed by the progress of the member states this far. In 2006 it published a Green Paper, launching a public consultation with a view to strengthening protection of EU citizens:

Diplomatic and consular protection of Union citizens in third countries; Brussels, 28.11.2006; COM (2006) 712 final

At least the European Parliament offered wholehearted support for the Commission’s plans, whereas the member states’ responses were mixed.

In December 2007 the Commission issued an action plan accompanied by a recommendation and two working papers:

Effective consular protection in third countries: the contribution of the European Union – Action Plan 2007 – 2009; Brussels, 5.12.2007, COM (2007) 767 final

The Commission estimated that the number of "unrepresented" EU citizens travelling abroad annually is at least 7 million, and that around 2 million EU expatriates live in a third country where their Member State is not represented, and that these numbers are likely to grow.

The Commission aims to improve information on citizens’ rights, and to take practical steps to improve consular protection. Member states are encouraged to increase protection of family members who are third country nationals, to strive towards common protection standards and to obtain the express consent to EU protection arrangements through bilateral agreements with host states.


Ralf Grahn

EU TFEU: Citizen’s right to vote

The electoral rights of EU citizens do not evolve as a result of the Treaty of Lisbon, which retains the right to vote in local elections and in elections to the European Parliament in one’s member state of residence, as well as the right to stand as a candidate in these elections.

Regional and national elections are still uncovered by common provisions for EU expats.

***

We notice that the intergovernmental conference (IGC 2007) leaves a gap in the Treaty of Lisbon between point 35 (Article 18 TEC) and point 36 (Article 20 TEC). See OJ 17.12.2007 C 306/51-52.

We discover the missing Article 19 TEC in the Annex Tables of equivalences referred to in Article 5 of the Treaty of Lisbon (OJ 17.12.2007 C 306/206), where we find out that Article 19 TEC remains Article 19 TFEU (ToL), until it is renumbered Article 22 TFEU.

In addition, the IGC humours us by, under horizontal amendments, in point 3 listing specific Articles to be amended in the following way (OJ 17.12.2007 C 306/42):

3) In the following Articles, the words ‘acting unanimously on a proposal from the Commission’
shall be replaced by ‘acting unanimously in accordance with a special legislative procedure’:
— Article 13, renumbered 16 E, first paragraph
— Article 19(1)
— Article 19(2)
— Article 22, second paragraph
— Article 93
— Article 94, renumbered 95
— Article 104(14), second subparagraph
— Article 175(2), first subparagraph

***

After playing IGC style hide and seek, and after coining today’s oxymoron, ‘specific horizontal amendment’, we are ready to take on the current Article 19 TEC (found in the latest consolidated version of the TEU and the TEC, in OJ 29.12.2006 C 321 E/50):

Article 19 TEC

1. Every citizen of the Union residing in a Member State of which he is not a national shall have the right to vote and to stand as a candidate at municipal elections in the Member State in which he resides, under the same conditions as nationals of that State. This right shall be exercised subject to detailed arrangements adopted by the Council, acting unanimously on a proposal from the Commission and after consulting the European Parliament; these arrangements may provide for derogations where warranted by problems specific to a Member State.

2. Without prejudice to Article 190(4) and to the provisions adopted for its implementation, every citizen of the Union residing in a Member State of which he is not a national shall have the right to vote and to stand as a candidate in elections to the European Parliament in the Member State in which he resides, under the same conditions as nationals of that State. This right shall be exercised subject to detailed arrangements adopted by the Council, acting unanimously on a proposal from the Commission and after consulting the European Parliament; these arrangements may provide for derogations where warranted by problems specific to a Member State.

***

The Lisbon Treaty version of Article 19 should look like this:

Article 19 TFEU (ToL), after renumbering Article 22 TFEU

1. Every citizen of the Union residing in a Member State of which he is not a national shall have the right to vote and to stand as a candidate at municipal elections in the Member State in which he resides, under the same conditions as nationals of that State. This right shall be exercised subject to detailed arrangements adopted by the Council, acting unanimously in accordance with a special legislative procedure and after consulting the European Parliament; these arrangements may provide for derogations where warranted by problems specific to a Member State.

2. Without prejudice to Article 190(1) [renumbered Article 223(1)] and to the provisions adopted for its implementation, every citizen of the Union residing in a Member State of which he is not a national shall have the right to vote and to stand as a candidate in elections to the European Parliament in the Member State in which he resides, under the same conditions as nationals of that State. This right shall be exercised subject to detailed arrangements adopted by the Council, acting unanimously in accordance with a special legislative procedure and after consulting the European Parliament; these arrangements may provide for derogations where warranted by problems specific to a Member State.

***

For a look at the intermediary stages leading up to the Treaty of Lisbon, we turn to the draft Treaty establishing a Constitution for Europe, proposed by the European Convention (OJ 18.7.2003 C 169/30):

Article III-10 Draft Constitution

A European law or framework law of the Council of Ministers shall determine the detailed arrangements for exercising the right, referred to in Article I-8, for every Union citizen to vote and to stand as a candidate in municipal elections and elections to the European Parliament in their Member State of residence without being a national of that State. The Council of Ministers shall act unanimously after consulting the European Parliament. These arrangements may provide for derogations where warranted by problems specific to a Member State.

The right to vote and to stand as a candidate in elections to the European Parliament shall be exercised without prejudice to Article III-232(2) and the measures adopted for its implementation.

***

The IGC 2004 took over the proposal in the Treaty establishing a Constitution for Europe almost word for word, with natural changes of the Articles referred to (OJ 16.12.2004 C 310/57):

Article III-126 Constitution

A European law or framework law of the Council shall determine the detailed arrangements for exercising the right, referred to in Article I-10(2)(b), for every citizen of the Union to vote and to stand as a candidate in municipal elections and elections to the European Parliament in his or her Member State of residence without being a national of that State. The Council shall act unanimously after consulting the European Parliament. These arrangements may provide for derogations where warranted by problems specific to a Member State.

The right to vote and to stand as a candidate in elections to the European Parliament shall be exercised without prejudice to Article III-330(1) and the measures adopted for its implementation.

***

We see that the draft Constitution and the Constitutional Treaty used one paragraph to cover both municipal elections and elections to the European Parliament, where the current TEC and the ToL award the different elections their own paragraphs, but nothing changes in substance.

Citizens of the European Union have achieved essential equality with the nationals of their member state of residence at two levels, their municipality and the EU.

***

Equal rights are not all-encompassing, since derogations are possible for certain states. In practice, the only member state to request (a continued) derogation in 2009 is Luxembourg with its high proportion of expats. See:

Report from the Commission to the European Parliament and to the Council on granting a derogation pursuant to Article 19(2) of the EC Treaty, presented under Article 14(3) of Directive 93/109/EC on the right to vote and to stand as a candidate in elections to the European Parliament COM/2007/0846 final

***

National and (where applicable) regional elections are still outside the common arrangements, as are referendums irrespective of level.

For most people electoral rights are the ones that matter, but the active right to stand as a candidate is on offer in municipal and EP level elections.

***

The legal base for the election procedure to the European Parliament is currently in Article 190(4) TEC, proposed to become modified Article 190(1) TFEU (ToL), after renumbering Article 223(1) TFEU.

The European Parliament draws up a proposal, and the Council unanimously lays down the necessary provisions after obtaining the consent of the European Parliament. The provisions have to be ratified by the member states. (See Article 190 TEC and OJ 17.12.2007 C 306/100, point 179.)

***

For the current rules on EP elections, you could start by looking up Council Decision 2002/772/EC, Euratom of 25 June 2002 and 23 September 2002 amending the Act concerning the election of the representatives of the European Parliament by direct universal suffrage, annexed to Decision 76/787/ECSC, EEC, Euratom (OJ 21.10.2002 L 283).

***

With a view to the EP elections of June 2009, the following documents could be mentioned, starting with the report on the latest elections:

Communication from the Commission European elections 2004 – Commission report on the participation of European Union citizens in the Member State of residence (Directive 93/109/EC) and on the electoral arrangements (Decision 76/787/EC as amended by Decision 2002/772/EC, Euratom)

Commission Staff Working document Accompanying document to the Communication from the Commission European elections 2004 - Commission report on the participation of European Union citizens in the Member States of residence (Directive 93/109/EC) and on the electoral arrangements (Decision 76/787/EC as amended by Decision 2002/772/EC) Impact assessment report for a possible amendment of Council Directive 93/109/EC laying down detailed arrangements for exercising the right to vote and stand as a candidate in elections to the European Parliament for citizens of the Union residing in a Member State of which they are not nationals

Proposal for a Council Directive amending Directive 93/109/EC of 6 December 1993 as regards certain detailed arrangements for the exercise of the right to vote and stand as a candidate in elections to the European Parliament for citizens of the Union residing in a Member State of which they are not nationals

***

For the sake of readers with an interest in UK affairs, two unilateral Lisbon Treaty declarations can be mentioned (OJ 17.12.2007 C 306/268):

63. Declaration by the United Kingdom of Great Britain and Northern Ireland on the definition of the term ‘nationals’

In respect of the Treaties and the Treaty establishing the European Atomic Energy Community, and in any of the acts deriving from those Treaties or continued in force by those Treaties, the United Kingdom reiterates the Declaration it made on 31 December 1982 on the definition of the term ‘nationals’ with the exception that the reference to ‘British Dependent Territories Citizens’ shall be read as meaning ‘British overseas territories citizens’.

64. Declaration by the United Kingdom of Great Britain and Northern Ireland on the franchise for elections to the European Parliament

The United Kingdom notes that Article 9 A of the Treaty on European Union and other provisions of the Treaties are not intended to change the basis for the franchise for elections to the European Parliament.

***

The first rules on direct elections to the European Parliament were issued in 1976, and the first directly elected EP commenced work in 1979. The next EP elections are due in June 2009.

If the Treaty of Lisbon is in force at the time, the elections to the European Parliament are to be taken into account in the process of electing the next President of the Commission. This offers the citizens of the European Union the opportunity to influence the choice to one of the top jobs within the EU, since the political parties at the European level are expected to field their candidates for the post.

The ‘Who do I call?’ campaign has seized on the possibility left open by the Lisbon Treaty to merge the offices of Commission and European Council presidents, to enhance the democratic legitimacy of the EU, although Declaration number 6 to indicates that the European leaders would have to change tack, since they still seem have three different office holders in mind (OJ 17.12.2007 C 306/248):

6. Declaration on Article 9 B(5) and (6), Article 9 D(6) and (7) and Article 9 E of the Treaty on European Union

In choosing the persons called upon to hold the offices of President of the European Council, President of the Commission and High Representative of the Union for Foreign Affairs and Security Policy, due account is to be taken of the need to respect the geographical and demographic diversity of the Union and its Member States.

***

Lisbon Treaty Declaration 11 envisions consultations between the European Parliament and the European Council only regarding the President of the European Commission (OJ 17.12.2007 C 306/252):

11. Declaration on Article 9 D(6) and (7) of the Treaty on European Union

The Conference considers that, in accordance with the provisions of the Treaties, the European Parliament and the European Council are jointly responsible for the smooth running of the process leading to the election of the President of the European Commission. Prior to the decision of the European Council, representatives of the European Parliament and of the European Council will thus conduct the necessary consultations in the framework deemed the most appropriate. These consultations will focus on the backgrounds of the candidates for President of the Commission, taking account of the elections to the European Parliament, in accordance with the first subparagraph of Article 9 D(7). The arrangements for such consultations may be determined, in due course, by common accord between the European Parliament and the European Council.

***

EU citizens’ rights in municipal elections are governed by a Directive last amended by Directive 2006/106/EC in 2006, so look for the consolidated version of:

Council Directive 94/80/EC of 19 December 1994 laying down detailed arrangements for the exercise of the right to vote and to stand as a candidate in municipal elections by citizens of the Union residing in a Member State of which they are not nationals

Ralf Grahn

TFEU: Citizen’s right to move and reside freely

The EU Law Blog published a post ‘Fifth Commission Report on Citizenship’ on 5 March 2008, with essential links to case law of the Court of Justice and to Commission documents on citizenship of the Union:

http://eulaw.typepad.com/eulawblog/2008/03/fifth-commissio.html

Here, we look at the basic treaty provisions on EU citizenship in the light of the Treaty of Lisbon, offering the reader possibilities to compare the current Treaty establishing the European Community with the intermediary Convention and Constitution stages leading up to the amending Lisbon Treaty.


***

In the Treaty of Lisbon (ToL) the intergovernmental conference (IGC 2007) agreed to change the Treaty establishing the European Community (TEC), which becomes the Treaty on the Functioning of the European Union (TFEU). In the renamed Part Two Non-discrimination and citizenship of the Union, Article 18 is amended as follows (Official Journal, OJ, 17.12.2007 C 306/51):

35) Article 18 shall be amended as follows:

(a) in paragraph 2, the words ‘the Council may adopt’ shall be replaced by ‘the European Parliament and the Council, acting in accordance with the ordinary legislative procedure, may adopt’ and the last sentence shall be deleted;

(b) paragraph 3 shall be replaced by the following:

‘3. For the same purposes as those referred to in paragraph 1 and if the Treaties have not provided the necessary powers, the Council, acting in accordance with a special legislative procedure, may adopt measures concerning social security or social protection. The Council shall act unanimously after consulting the European Parliament.’

***

Since inserting innovations agreed in the 2004 IGC into the Treaty ‘by way of specific modifications in the usual manner’ does not begin to make sense for the normal reader, the following step is to fetch the patient to be operated on, namely retrieve the text of the current provision (in the latest consolidated version of the existing treaties OJ 29.12.2006 C 321 E/49-50):

Article 18 TEC

1. Every citizen of the Union shall have the right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in this Treaty and by the measures adopted to give it effect.

2. If action by the Community should prove necessary to attain this objective and this Treaty has not provided the necessary powers, the Council may adopt provisions with a view to facilitating the exercise of the rights referred to in paragraph 1. The Council shall act in accordance with the procedure referred to in Article 251.

3. Paragraph 2 shall not apply to provisions on passports, identity cards, residence permits or any other such document or to provisions on social security or social protection.

***

Then, the horizontal and the express amendments have to be inserted to arrive at a consolidated version of the Article according to the Lisbon Treaty:

Article 18 TFEU (ToL), renumbered Article 21 TFEU

1. Every citizen of the Union shall have the right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in the Treaties and by the measures adopted to give them effect.

2. If action by the Union should prove necessary to attain this objective and the Treaties have not provided the necessary powers, the European Parliament and the Council, acting in accordance with the ordinary legislative procedure, may adopt provisions with a view to facilitating the exercise of the rights referred to in paragraph 1.

3. For the same purposes as those referred to in paragraph 1 and if the Treaties have not provided the necessary powers, the Council, acting in accordance with a special legislative procedure, may adopt measures concerning social security or social protection. The Council shall act unanimously after consulting the European Parliament.

***

The European Convention, chaired by Valéry Giscard d’Estaing, tabled the following proposal in the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/30):

Article III-9 Draft Constitution

1. If action by the Union should prove necessary to facilitate the exercise of the right, referred to in Article I-8, of every Union citizen to move and reside freely and the Constitution has not provided the necessary powers, European laws or framework laws may establish measures for that purpose.

2. For the same purpose and unless the Constitution has provided for powers of action in this area, measures concerning passports, identity cards, residence permits or any other such document and measures concerning social security or social protection may be laid down by a European law or framework law of the Council of Ministers. The Council of Ministers shall act unanimously after consulting the European Parliament.

***

The IGC 2004 agreed on the following text in the Treaty establishing a Constitution for Europe (OJ 16.12.2004 C 310/56-57):

Article III-125 Constitution

1. If action by the Union should prove necessary to facilitate the exercise of the right, referred to in Article I-10(2)(a), of every citizen of the Union to move and reside freely and the Constitution has not provided the necessary powers, European laws or framework laws may establish measures for that purpose.

2. For the same purposes as those referred to in paragraph 1 and if the Constitution has not provided the necessary powers, a European law or framework law of the Council may establish measures concerning passports, identity cards, residence permits or any other such document and measures concerning social security or social protection. The Council shall act unanimously after consulting the European Parliament.

***

For a short description of the proposed Article, we can quote the UK House of Commons Library Research Paper 07/86 (page 24):

Article 18 (Constitution Article III-125), like present Article 18 TEC, allows the Union to enact the necessary legislation to ensure freedom of movement, even where the Treaty does not expressly provide for it, specifying measures concerning social security or social protection for which the Council must act by unanimity after consulting the EP.

***

The freedom of movement and the freedom to reside within the EU follows from our status as citizens of the Union, not only if we are, for instance, workers or self-employed.

In each version, paragraph 1 spells out the important principle that every citizen of the European Union, namely every person who is a citizen of a member state, has the right to move and reside freely within the territory of the member states.

Paragraph 1 of the TEC and the ToL is essentially the same. Although the treaties contain the germ of equality between EU citizens, the right to move and reside is subject to limitations and conditions, of which more when we glance at the secondary legislation.

Between themselves the draft Constitution and the Constitution were almost identical.

***

The substance of paragraph 2 of the current TEC and the ToL is essentially the same, the co-decision procedure having become the ordinary legislative procedure, as elsewhere in the Lisbon Treaty.

***

In paragraph 3 TFEU, the sensitive questions of social security and social protection, hitherto exempt from action within the context of Article 18 TEC, open up to a special legislative procedure where the European Parliament is consulted, but they require unanimity by the Council.

The Article 18(3) provisions on passports, identity cards, residence permits or any other such document have been deleted from paragraph 3 TFEU, but moved to Title V, Chapter 2 Policies on border checks, asylum and immigration, which introduces a special legislative procedure, with consultation of the European Parliament and unanimous Council acts.

As Steve Peers points out in his EU Reform Treaty Analysis no. 3.2 this power has been inserted into the external borders provisions, where the UK, Ireland and Denmark will be able to opt out of it (page 5).

See OJ 17.12.2007 C 306/59:

Article 62(3) TFEU (ToL), renumbered Article 77(3) TFEU

3. If action by the Union should prove necessary to facilitate the exercise of the right referred to in Article 17(2)(a), and if the Treaties have not provided the necessary powers, the Council, acting in accordance with a special legislative procedure, may adopt provisions concerning passports, identity cards, residence permits or any other such document. The Council shall act unanimously after consulting the European Parliament.

***

The right to move and reside freely within the European Union is important for millions of EU citizens, who reside in another member state.

For them and their family members 30 April 2006 was a milestone, because Directive 2004/38/EC entered into force, codifying, clarifying and extending their rights (OJ 30.4.2004 L 158/77):

Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC,
68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC (Text with EEA relevance)


Article 1 Directive2004/38/EC
Subject

This Directive lays down:

(a) the conditions governing the exercise of the right of free movement and residence within the territory of the Member States by Union citizens and their family members;

(b) the right of permanent residence in the territory of the Member States for Union citizens and their family members;

(c) the limits placed on the rights set out in (a) and (b) on grounds of public policy, public security or public health.

***

For workers’ free movement there is the amended Council Regulation No 1612/68 Regulation (EEC) No 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community (A consolidated version is available.)


Ralf Grahn


Source:

UK House of Commons Library Research Paper 07/86: The Treaty of Lisbon: amendments to the Treaty establishing the European Community; 6 December 2007

Steve Peers: Statewatch Analysis, EU Reform Treaty Analysis no. 3.2: Revised text of Part Two of the Treaty establishing the European Community (TEC); Version 2, 23 October 2007