The EU Treaty of Lisbon modernises the existing provisions on the European Community’s relations with international organisations and third countries.
When the European Community is merged into the European Union, the High Representative becomes the main responsible for the day to day running of the EU’s international relations and the official in charge of the European Union’s delegations in third countries and at international organisations.
Because of the remaining split between CFSP (and CSDP) issues and other external relations, the related provision on the European External Action Service is still to be found in the Treaty on European Union.
If the Treaty of Lisbon enters into force on 1 January 2010 ─ as the governments of the EU member states seem to wish ─ it is high time for the Council to open up the public discussion on all issues of implementation.
***
Current treaty
Articles 302, 303 and 304 of the Treaty establishing the European Community (TEC) contain basic provisions on the international relations of the EC.
Article 302 TEC relates to the United Nations (UN) and its agencies, but it also contains a general reference to all international organisations, of which some may be global in scope.
Cooperation with the pan-European Council of Europe is mentioned in Article 303 TEC.
The Organisation for Economic Cooperation and Development (OECD) is mentioned separately in Article 304 TEC.
The text of Articles 302 to 304 TEC as published in the latest consolidated version of the treaties (OJEU 29.12.2006 C 321 E/177─178):
Article 302 TEC
It shall be for the Commission to ensure the maintenance of all appropriate relations with the organs of the United Nations and of its specialised agencies.
The Commission shall also maintain such relations as are appropriate with all international organisations.
Article 303 TEC
The Community shall establish all appropriate forms of cooperation with the Council of Europe.
Article 304 TEC
The Community shall establish close cooperation with the Organisation for Economic Cooperation and Development, the details of which shall be determined by common accord.
***
Original Lisbon Treaty
Article 2, point 175 of the original Treaty of Lisbon (ToL) introduces a new Title and inserts an Article 188p to replace Articles 302 to 304 TEC. The new Article 188q transforms the existing Commission representations in third countries and at international organisations into EU delegations (OJEU 17.12.2007 C 306/99─100):
THE UNION'S RELATIONS WITH INTERNATIONAL ORGANISATIONS AND THIRD COUNTRIES AND UNION DELEGATIONS
175) The following Title VI and Articles 188 P and 188 Q shall be inserted, with Article 188 P replacing Articles 302 to 304:
‘TITLE VI
THE UNION'S RELATIONS WITH INTERNATIONAL ORGANISATIONS AND THIRD COUNTRIES AND UNION DELEGATIONS
Article 188 P
1. The Union shall establish all appropriate forms of cooperation with the organs of the United Nations and its specialised agencies, the Council of Europe, the Organisation for Security and Cooperation in Europe and the Organisation for Economic Cooperation and Development.
The Union shall also maintain such relations as are appropriate with other international organisations.
2. The High Representative of the Union for Foreign Affairs and Security Policy and the Commission shall be instructed to implement this Article.
Article 188 Q
1. Union delegations in third countries and at international organisations shall represent the Union.
2. Union delegations shall be placed under the authority of the High Representative of the Union for Foreign Affairs and Security Policy. They shall act in close cooperation with Member States' diplomatic and consular missions.’.
***
Consolidated Lisbon Treaty
The new Title VI appears in the consolidated version of the Treaty of Lisbon together with the renumbered Articles 220 and 221 of the Treaty on the Functioning of the European Union (TFEU), published OJEU 9.5.2008 C 115/147:
TITLE VI
THE UNION'S RELATIONS WITH INTERNATIONAL ORGANISATIONS AND THIRD
COUNTRIES AND UNION DELEGATIONS
Article 220 TFEU
(ex Articles 302 to 304 TEC)
1. The Union shall establish all appropriate forms of cooperation with the organs of the United Nations and its specialised agencies, the Council of Europe, the Organisation for Security and Cooperation in Europe and the Organisation for Economic Cooperation and Development.
The Union shall also maintain such relations as are appropriate with other international organisations.
2. The High Representative of the Union for Foreign Affairs and Security Policy and the Commission shall be instructed to implement this Article.
Article 221 TFEU
1. Union delegations in third countries and at international organisations shall represent the Union.
2. Union delegations shall be placed under the authority of the High Representative of the Union for Foreign Affairs and Security Policy. They shall act in close cooperation with Member States' diplomatic and consular missions.
***
Comments
External action (Part Five of the Treaty on the Functioning of the European Union) manages to bring most of the international provisions under one roof, with the notable failure of the Lisbon Treaty to dislodge the common foreign and security policy (CFSP), including the common security and defence policy (CSDP) from the amended Treaty on European Union (TEU).
Articles 220 and 221 TFEU correspond with Articles III-327 and III-328 of the Constitutional Treaty.
The new TFEU Title VI The Union’s relations with international organisations and third countries and Union delegations simplifies reading by the new heading and by collecting the most important international organisations from three different provisions into one. The Organisation for Security and Cooperation in Europe (OSCE) is added to the organisations specially mentioned in Article 220 TFEU.
The merger of the European Community into the European Union, which is endowed with explicit legal personality (Article 47 TEU), is highlighted by the role of the High Representative, called on to implement these international relations and to wield authority over the EU delegations in third countries and at international organisations. Cf. Article 220(2) and Article 221(2) TFEU.
The existing European Community representations become European Union delegations (Article 221 TFEU).
These TFEU provisions reflect the development into a European External Action Service, which assists the High Representative. The EEAS is to be established by a Council decision (Article 27 TEU).
Thus, the European External Action Service is one of the questions requiring preparatory work in order to implement the Treaty of Lisbon, should it enter into force. The Council needs to report on the state of play and alternative solutions concerning this and other implementing issues to facilitate a constructive debate with the European Parliament, national parliaments, think-tanks, researchers and the public.
Perhaps the European Parliament and the Commission, even if on their last legs, could prod the Council into action?
Ralf Grahn
Showing posts with label third countries. Show all posts
Showing posts with label third countries. Show all posts
Monday, 9 February 2009
Sunday, 8 February 2009
EU Law: Euro exchange-rate system agreements
The EU Treaty of Lisbon would move the provision on international agreements concerning the euro exchange-rate system under the Title on international agreements, where these agreements form an exception to the normal procedures with regard to international agreements.
***
Current treaty
The existing Article 111 of the Treaty establishing the European Community (TEC) is situated in Title VII Economic and monetary policy, Chapter 2 Monetary policy; OJEU 29.12.2006 C 321 E/89–90.
The first paragraph concerns formal agreements on an exchange rate system for the ecu (euro) in relation to non-Community currencies.
The second paragraph provides for general orientations for exchange-rate policies in relation to non-Community currencies (if there is no binding exchange-rate system).
The third paragraph sets out a special legal base for negotiating and concluding agreements on monetary or foreign‑exchange regime matters with third countries or international organisations.
Paragraph 4 refers to the external representation of the economic and monetary union (EMU).
Paragraph 5 rules the residual right of member states to negotiate in international bodies and conclude international agreements.
From the latest consolidated version of the treaties, here is the text of Article 111:
Article 111 TEC
1. By way of derogation from Article 300, the Council may, acting unanimously on a recommendation from the ECB or from the Commission, and after consulting the ECB in an endeavour to reach a consensus consistent with the objective of price stability, after consulting the European Parliament, in accordance with the procedure in paragraph 3 for determining the arrangements, conclude formal agreements on an exchange-rate system for the ecu in relation to non-Community currencies. The Council may, acting by a qualified majority on a recommendation from the ECB or from the Commission, and after consulting the ECB in an endeavour to reach a consensus consistent with the objective of price stability, adopt, adjust or abandon the central rates of the ecu within the exchange-rate system. The President of the Council shall inform the European Parliament of the adoption, adjustment or abandonment of the ecu central rates.
2. In the absence of an exchange-rate system in relation to one or more non-Community currencies as referred to in paragraph 1, the Council, acting by a qualified majority either on a recommendation from the Commission and after consulting the ECB or on a recommendation from the ECB, may formulate general orientations for exchange-rate policy in relation to these currencies. These general orientations shall be without prejudice to the primary objective of the ESCB to maintain price stability.
3. By way of derogation from Article 300, where agreements concerning monetary or foreign‑exchange regime matters need to be negotiated by the Community with one or more States or international organisations, the Council, acting by a qualified majority on a recommendation from the Commission and after consulting the ECB, shall decide the arrangements for the negotiation and for the conclusion of such agreements. These arrangements shall ensure that the Community expresses a single position. The Commission shall be fully associated with the negotiations.
Agreements concluded in accordance with this paragraph shall be binding on the institutions of the Community, on the ECB and on Member States.
4. Subject to paragraph 1, the Council, acting by a qualified majority on a proposal from the Commission and after consulting the ECB, shall decide on the position of the Community at international level as regards issues of particular relevance to economic and monetary union and on its representation, in compliance with the allocation of powers laid down in Articles 99 and 105.
5. Without prejudice to Community competence and Community agreements as regards economic and monetary union, Member States may negotiate in international bodies and conclude international agreements.
***
Original Lisbon Treaty
Article 2, point 174 of the original Treaty of Lisbon inserted an Article 188o into the Title on international agreements (OJEU 17.12.2007 C 306/99):
174) An Article 188 O shall be inserted, with the wording of paragraphs 1 to 3 and 5 of Article 111 and paragraph 1 shall be split into two subparagraphs, the last two sentences becoming the second subparagraph; the Article shall be amended as follows:
(a) paragraph 1, first subparagraph, shall be replaced by the following:
‘
1. By way of derogation from Article 188 N(1), the Council, either on a recommendation from the European Central Bank or on a recommendation from the Commission and after consulting the European Central Bank, in an endeavour to reach a consensus consistent with the objective of price stability, may conclude formal agreements on an exchange-rate system for the euro in relation to the currencies of third States. The Council shall act unanimously after consulting the European Parliament and in accordance with the procedure provided for in paragraph 3.’.
In the second subparagraph, the words ‘on a recommendation from the ECB or from the Commission and after consulting the ECB in an endeavour to’ shall be replaced by the following: ‘either on a recommendation from the European Central Bank or on a recommendation from the Commission, and after consulting the European Central Bank, in an endeavour to’;
(b) in paragraph 2, the words ‘non-Community currencies’ shall be replaced by ‘currencies of third States’;
(c) in paragraph 3, in the first sentence of the first subparagraph, the reference to Article 300 shall be replaced by a reference to Article 188 N and the word ‘States’ shall be replaced by ‘third States’, and the second subparagraph shall be deleted;
(d) paragraph 5 shall be renumbered ‘4’.
***
Consolidated Lisbon Treaty
Renumbered Article 219 of the Treaty on the Functioning of the European Union (TFEU) and made readable once again, the provision looks like this in the consolidated version of the Lisbon Treaty (OJEU 9.5.2008 C 115/146–147):
Article 219 TFEU
(ex Article 111(1) to (3) and (5) TEC)
1. By way of derogation from Article 218, the Council, either on a recommendation from the European Central Bank or on a recommendation from the Commission and after consulting the European Central Bank, in an endeavour to reach a consensus consistent with the objective of price stability, may conclude formal agreements on an exchange-rate system for the euro in relation to the currencies of third States. The Council shall act unanimously after consulting the European Parliament and in accordance with the procedure provided for in paragraph 3.
The Council may, either on a recommendation from the European Central Bank or on a recommendation from the Commission, and after consulting the European Central Bank, in an endeavour to reach a consensus consistent with the objective of price stability, adopt, adjust or abandon the central rates of the euro within the exchange-rate system. The President of the Council shall inform the European Parliament of the adoption, adjustment or abandonment of the euro central rates.
2. In the absence of an exchange-rate system in relation to one or more currencies of third States as referred to in paragraph 1, the Council, either on a recommendation from the Commission and after consulting the European Central Bank or on a recommendation from the European Central Bank, may formulate general orientations for exchange-rate policy in relation to these currencies. These general orientations shall be without prejudice to the primary objective of the ESCB to maintain price stability.
3. By way of derogation from Article 218, where agreements concerning monetary or foreign exchange regime matters need to be negotiated by the Union with one or more third States or international organisations, the Council, on a recommendation from the Commission and after consulting the European Central Bank, shall decide the arrangements for the negotiation and for the conclusion of such agreements. These arrangements shall ensure that the Union expresses a single position. The Commission shall be fully associated with the negotiations.
4. Without prejudice to Union competence and Union agreements as regards economic and monetary union, Member States may negotiate in international bodies and conclude international agreements.
***
Comments
The bulk of Article 111 TEC has been moved from monetary policy to international agreements to become Article 219 TFEU.
We see that concluding formal agreements on an exchange-rate system for the euro and agreements concerning monetary or foreign exchange regime matters derogates from the general procedure for the conclusion of EU international agreements in Article 218 TFEU.
A minor detail is that ‘third States’ is a rare hybrid expression, since the amending treaties normally refer to (Member) States and to ‘third countries’.
Article 219 TFEU is one of the treaty provisions which will not apply to member states with a derogation (which do not fulfil the conditions for the adoption of the euro), according to Article 139(2)(g), so member states means ones whose currency is the euro. .
In substance Article 219 TFEU corresponds with Article III-326 of the Constitutional Treaty.
Ralf Grahn
***
Current treaty
The existing Article 111 of the Treaty establishing the European Community (TEC) is situated in Title VII Economic and monetary policy, Chapter 2 Monetary policy; OJEU 29.12.2006 C 321 E/89–90.
The first paragraph concerns formal agreements on an exchange rate system for the ecu (euro) in relation to non-Community currencies.
The second paragraph provides for general orientations for exchange-rate policies in relation to non-Community currencies (if there is no binding exchange-rate system).
The third paragraph sets out a special legal base for negotiating and concluding agreements on monetary or foreign‑exchange regime matters with third countries or international organisations.
Paragraph 4 refers to the external representation of the economic and monetary union (EMU).
Paragraph 5 rules the residual right of member states to negotiate in international bodies and conclude international agreements.
From the latest consolidated version of the treaties, here is the text of Article 111:
Article 111 TEC
1. By way of derogation from Article 300, the Council may, acting unanimously on a recommendation from the ECB or from the Commission, and after consulting the ECB in an endeavour to reach a consensus consistent with the objective of price stability, after consulting the European Parliament, in accordance with the procedure in paragraph 3 for determining the arrangements, conclude formal agreements on an exchange-rate system for the ecu in relation to non-Community currencies. The Council may, acting by a qualified majority on a recommendation from the ECB or from the Commission, and after consulting the ECB in an endeavour to reach a consensus consistent with the objective of price stability, adopt, adjust or abandon the central rates of the ecu within the exchange-rate system. The President of the Council shall inform the European Parliament of the adoption, adjustment or abandonment of the ecu central rates.
2. In the absence of an exchange-rate system in relation to one or more non-Community currencies as referred to in paragraph 1, the Council, acting by a qualified majority either on a recommendation from the Commission and after consulting the ECB or on a recommendation from the ECB, may formulate general orientations for exchange-rate policy in relation to these currencies. These general orientations shall be without prejudice to the primary objective of the ESCB to maintain price stability.
3. By way of derogation from Article 300, where agreements concerning monetary or foreign‑exchange regime matters need to be negotiated by the Community with one or more States or international organisations, the Council, acting by a qualified majority on a recommendation from the Commission and after consulting the ECB, shall decide the arrangements for the negotiation and for the conclusion of such agreements. These arrangements shall ensure that the Community expresses a single position. The Commission shall be fully associated with the negotiations.
Agreements concluded in accordance with this paragraph shall be binding on the institutions of the Community, on the ECB and on Member States.
4. Subject to paragraph 1, the Council, acting by a qualified majority on a proposal from the Commission and after consulting the ECB, shall decide on the position of the Community at international level as regards issues of particular relevance to economic and monetary union and on its representation, in compliance with the allocation of powers laid down in Articles 99 and 105.
5. Without prejudice to Community competence and Community agreements as regards economic and monetary union, Member States may negotiate in international bodies and conclude international agreements.
***
Original Lisbon Treaty
Article 2, point 174 of the original Treaty of Lisbon inserted an Article 188o into the Title on international agreements (OJEU 17.12.2007 C 306/99):
174) An Article 188 O shall be inserted, with the wording of paragraphs 1 to 3 and 5 of Article 111 and paragraph 1 shall be split into two subparagraphs, the last two sentences becoming the second subparagraph; the Article shall be amended as follows:
(a) paragraph 1, first subparagraph, shall be replaced by the following:
‘
1. By way of derogation from Article 188 N(1), the Council, either on a recommendation from the European Central Bank or on a recommendation from the Commission and after consulting the European Central Bank, in an endeavour to reach a consensus consistent with the objective of price stability, may conclude formal agreements on an exchange-rate system for the euro in relation to the currencies of third States. The Council shall act unanimously after consulting the European Parliament and in accordance with the procedure provided for in paragraph 3.’.
In the second subparagraph, the words ‘on a recommendation from the ECB or from the Commission and after consulting the ECB in an endeavour to’ shall be replaced by the following: ‘either on a recommendation from the European Central Bank or on a recommendation from the Commission, and after consulting the European Central Bank, in an endeavour to’;
(b) in paragraph 2, the words ‘non-Community currencies’ shall be replaced by ‘currencies of third States’;
(c) in paragraph 3, in the first sentence of the first subparagraph, the reference to Article 300 shall be replaced by a reference to Article 188 N and the word ‘States’ shall be replaced by ‘third States’, and the second subparagraph shall be deleted;
(d) paragraph 5 shall be renumbered ‘4’.
***
Consolidated Lisbon Treaty
Renumbered Article 219 of the Treaty on the Functioning of the European Union (TFEU) and made readable once again, the provision looks like this in the consolidated version of the Lisbon Treaty (OJEU 9.5.2008 C 115/146–147):
Article 219 TFEU
(ex Article 111(1) to (3) and (5) TEC)
1. By way of derogation from Article 218, the Council, either on a recommendation from the European Central Bank or on a recommendation from the Commission and after consulting the European Central Bank, in an endeavour to reach a consensus consistent with the objective of price stability, may conclude formal agreements on an exchange-rate system for the euro in relation to the currencies of third States. The Council shall act unanimously after consulting the European Parliament and in accordance with the procedure provided for in paragraph 3.
The Council may, either on a recommendation from the European Central Bank or on a recommendation from the Commission, and after consulting the European Central Bank, in an endeavour to reach a consensus consistent with the objective of price stability, adopt, adjust or abandon the central rates of the euro within the exchange-rate system. The President of the Council shall inform the European Parliament of the adoption, adjustment or abandonment of the euro central rates.
2. In the absence of an exchange-rate system in relation to one or more currencies of third States as referred to in paragraph 1, the Council, either on a recommendation from the Commission and after consulting the European Central Bank or on a recommendation from the European Central Bank, may formulate general orientations for exchange-rate policy in relation to these currencies. These general orientations shall be without prejudice to the primary objective of the ESCB to maintain price stability.
3. By way of derogation from Article 218, where agreements concerning monetary or foreign exchange regime matters need to be negotiated by the Union with one or more third States or international organisations, the Council, on a recommendation from the Commission and after consulting the European Central Bank, shall decide the arrangements for the negotiation and for the conclusion of such agreements. These arrangements shall ensure that the Union expresses a single position. The Commission shall be fully associated with the negotiations.
4. Without prejudice to Union competence and Union agreements as regards economic and monetary union, Member States may negotiate in international bodies and conclude international agreements.
***
Comments
The bulk of Article 111 TEC has been moved from monetary policy to international agreements to become Article 219 TFEU.
We see that concluding formal agreements on an exchange-rate system for the euro and agreements concerning monetary or foreign exchange regime matters derogates from the general procedure for the conclusion of EU international agreements in Article 218 TFEU.
A minor detail is that ‘third States’ is a rare hybrid expression, since the amending treaties normally refer to (Member) States and to ‘third countries’.
Article 219 TFEU is one of the treaty provisions which will not apply to member states with a derogation (which do not fulfil the conditions for the adoption of the euro), according to Article 139(2)(g), so member states means ones whose currency is the euro. .
In substance Article 219 TFEU corresponds with Article III-326 of the Constitutional Treaty.
Ralf Grahn
Thursday, 8 January 2009
EU Law: International research cooperation
A further option offered by the current Treaty establishing the European Community (TEC) is research cooperation between the European Community (European Union) and third countries or international organisations.
This international cooperation is tied to the multiannual framework programme, currently the European Community’s (European Union’s) Seventh Framework Programme for Research and Technological Development (FP7), running from 1 January 2007 to 31 December 2013.
After looking at the relevant treaty provisions, we offer some suggestions for further reading on the European Union’s efforts to promote international research cooperation.
***
Article 170 TEC
Article 170 (ex Article 130m) of the Treaty establishing the European Community (TEC) provides an option for the European Community to cooperate with third countries or international organisations when implementing the framework programme for research and technological development.
The cooperation is based on the framework programme, currently the Seventh Framework Programme for Research and Technological Development (FP7), running from 1 January 2007 to 31 December 2013.
The second paragraph of Article 170 TEC offers a second option (‘may’): international agreements between the EC (EU) and third countries or international organisations.
The paragraph refers to Article 300 TEC on negotiating and concluding international agreements.
The current Article 170 of the Treaty establishing the European Community (TEC), as published in the latest consolidated version of the treaties, OJEU 29.12.2006 C 321 E/122:
(TITLE XVIII
RESEARCH AND TECHNOLOGICAL DEVELOPMENT)
Article 170 TEC
In implementing the multiannual framework programme the Community may make provision for cooperation in Community research, technological development and demonstration with third countries or international organisations.
The detailed arrangements for such cooperation may be the subject of agreements between the Community and the third parties concerned, which shall be negotiated and concluded in accordance with Article 300.
***
Original Lisbon Treaty (ToL)
Article 2, point 141 amended Article 170 TEC (OJEU 17.12.2007 C 306/86):
141) In the second paragraph of Article 170, the words ‘, which shall be negotiated and concluded in accordance with Article 300’ shall be deleted.
***
Renumbering the Treaty of Lisbon (ToL)
(The Table of equivalences of the original Treaty of Lisbon tells us that Title XVIII first became Title XVIII with the addition of space in the TFEU (ToL), and later renumbered Title XIX Research and technological development and space in the consolidated version.)
Article 170 TEC initially became Article 170 TFEU (ToL) before the renumbering of the treaty made it into Article 186 TFEU in the consolidated version of the Lisbon Treaty (OJEU 17.12.2007 C 306/217–218).
***
Deleted procedure
The Treaty of Lisbon deleted the reference to the Article 300 procedure for negotiating and concluding international agreements. This was in line with Article III-252(4) of the Constitutional Treaty.
***
Lisbon Treaty consolidated
Article 186 TFEU
The ‘Community’ was replaced by the ‘Union’ (horizontal amendment) and the Article was renumbered. Article 186 TFEU dropped the reference to Article 300 TEC, and it appears like this in the consolidated version of the Treaty of Lisbon (OJEU 9.5.2008 C 115/131):
(TITLE XIX
RESEARCH AND TECHNOLOGICAL DEVELOPMENT AND SPACE)
Article 186 TFEU
(ex Article 170 TEC)
In implementing the multiannual framework programme the Union may make provision for cooperation in Union research, technological development and demonstration with third countries or international organisations.
The detailed arrangements for such cooperation may be the subject of agreements between the Union and the third parties concerned.
***
FP7 – Seventh Framework Programme (2007–2013)
Decision No 1982/2006/EC of the European Parliament and of the Council of 18 December 2006 concerning the Seventh Framework Programme of the European Community for research, technological development and demonstration activities (2007-2013), published in OJEU 30.12.2006 L 412/1, is available here:
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2006:412:0001:0041:EN:PDF
Recital 27 of the FP7 indicates the state of affairs and the efforts to strengthen international research cooperation:
(27) The Community has concluded a number of international agreements in the field of research and efforts should be made to strengthen international research cooperation with a view to reaping the full benefits of internationalisation of RTD, to contributing to the production of global public goods and to further integrating the Community into the world-wide research community.
***
Research Directorate-General
The Commission’s Directorate-General Research offers a gateway to International Cooperation here:
http://ec.europa.eu/research/iscp/index.cfm
A table of various agreements on research and technological development is accessible here:
http://ec.europa.eu/research/iscp/pdf/st_agreement_ec_euratom_en.pdf
The Commission staff working document A new approach to international scientific and technological co-operation in the 7th Research Framework Programme (2007-2013) and 7th Framework Programme of the European Atomic Energy Community (Euratom) (2007-2011), Bussels, 12.1.2007 SEC(2007)47, explains the objectives of the Commission to foster international research cooperation during the existing framework programmes:
http://ec.europa.eu/research/iscp/pdf/newapproach_en.pdf
The Commission has followed up with the recent forward looking Communication A strategic European framework for international science and technology cooperation, Brussels, 24 September 2008 COM (2008) 588 final:
http://ec.europa.eu/research/iscp/pdf/com_2008_588_en.pdf
This is how the Commission presents its view:
This Communication presents a strategic European framework for international cooperation in science and technology (S&T). It also covers the specific aspects of such cooperation in information and communication technologies (ICT).
By strengthening its research effort and facilitating the use of new technologies, Europe can respond more effectively and efficiently to the major challenges society is facing today. Deepening the European Research Area (ERA) through greater integration and cross-border coordination of research investments and activities will increase Europe's competitiveness and its attractiveness as a place to invest in research and innovation. Promoting European ICTs worldwide as a key driver of socio-economic growth will also contribute to the Growth and Jobs agenda1. Deepening the ERA should go hand in hand with widening it, through enhanced cooperation with international partners.
Ralf Grahn
This international cooperation is tied to the multiannual framework programme, currently the European Community’s (European Union’s) Seventh Framework Programme for Research and Technological Development (FP7), running from 1 January 2007 to 31 December 2013.
After looking at the relevant treaty provisions, we offer some suggestions for further reading on the European Union’s efforts to promote international research cooperation.
***
Article 170 TEC
Article 170 (ex Article 130m) of the Treaty establishing the European Community (TEC) provides an option for the European Community to cooperate with third countries or international organisations when implementing the framework programme for research and technological development.
The cooperation is based on the framework programme, currently the Seventh Framework Programme for Research and Technological Development (FP7), running from 1 January 2007 to 31 December 2013.
The second paragraph of Article 170 TEC offers a second option (‘may’): international agreements between the EC (EU) and third countries or international organisations.
The paragraph refers to Article 300 TEC on negotiating and concluding international agreements.
The current Article 170 of the Treaty establishing the European Community (TEC), as published in the latest consolidated version of the treaties, OJEU 29.12.2006 C 321 E/122:
(TITLE XVIII
RESEARCH AND TECHNOLOGICAL DEVELOPMENT)
Article 170 TEC
In implementing the multiannual framework programme the Community may make provision for cooperation in Community research, technological development and demonstration with third countries or international organisations.
The detailed arrangements for such cooperation may be the subject of agreements between the Community and the third parties concerned, which shall be negotiated and concluded in accordance with Article 300.
***
Original Lisbon Treaty (ToL)
Article 2, point 141 amended Article 170 TEC (OJEU 17.12.2007 C 306/86):
141) In the second paragraph of Article 170, the words ‘, which shall be negotiated and concluded in accordance with Article 300’ shall be deleted.
***
Renumbering the Treaty of Lisbon (ToL)
(The Table of equivalences of the original Treaty of Lisbon tells us that Title XVIII first became Title XVIII with the addition of space in the TFEU (ToL), and later renumbered Title XIX Research and technological development and space in the consolidated version.)
Article 170 TEC initially became Article 170 TFEU (ToL) before the renumbering of the treaty made it into Article 186 TFEU in the consolidated version of the Lisbon Treaty (OJEU 17.12.2007 C 306/217–218).
***
Deleted procedure
The Treaty of Lisbon deleted the reference to the Article 300 procedure for negotiating and concluding international agreements. This was in line with Article III-252(4) of the Constitutional Treaty.
***
Lisbon Treaty consolidated
Article 186 TFEU
The ‘Community’ was replaced by the ‘Union’ (horizontal amendment) and the Article was renumbered. Article 186 TFEU dropped the reference to Article 300 TEC, and it appears like this in the consolidated version of the Treaty of Lisbon (OJEU 9.5.2008 C 115/131):
(TITLE XIX
RESEARCH AND TECHNOLOGICAL DEVELOPMENT AND SPACE)
Article 186 TFEU
(ex Article 170 TEC)
In implementing the multiannual framework programme the Union may make provision for cooperation in Union research, technological development and demonstration with third countries or international organisations.
The detailed arrangements for such cooperation may be the subject of agreements between the Union and the third parties concerned.
***
FP7 – Seventh Framework Programme (2007–2013)
Decision No 1982/2006/EC of the European Parliament and of the Council of 18 December 2006 concerning the Seventh Framework Programme of the European Community for research, technological development and demonstration activities (2007-2013), published in OJEU 30.12.2006 L 412/1, is available here:
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2006:412:0001:0041:EN:PDF
Recital 27 of the FP7 indicates the state of affairs and the efforts to strengthen international research cooperation:
(27) The Community has concluded a number of international agreements in the field of research and efforts should be made to strengthen international research cooperation with a view to reaping the full benefits of internationalisation of RTD, to contributing to the production of global public goods and to further integrating the Community into the world-wide research community.
***
Research Directorate-General
The Commission’s Directorate-General Research offers a gateway to International Cooperation here:
http://ec.europa.eu/research/iscp/index.cfm
A table of various agreements on research and technological development is accessible here:
http://ec.europa.eu/research/iscp/pdf/st_agreement_ec_euratom_en.pdf
The Commission staff working document A new approach to international scientific and technological co-operation in the 7th Research Framework Programme (2007-2013) and 7th Framework Programme of the European Atomic Energy Community (Euratom) (2007-2011), Bussels, 12.1.2007 SEC(2007)47, explains the objectives of the Commission to foster international research cooperation during the existing framework programmes:
http://ec.europa.eu/research/iscp/pdf/newapproach_en.pdf
The Commission has followed up with the recent forward looking Communication A strategic European framework for international science and technology cooperation, Brussels, 24 September 2008 COM (2008) 588 final:
http://ec.europa.eu/research/iscp/pdf/com_2008_588_en.pdf
This is how the Commission presents its view:
This Communication presents a strategic European framework for international cooperation in science and technology (S&T). It also covers the specific aspects of such cooperation in information and communication technologies (ICT).
By strengthening its research effort and facilitating the use of new technologies, Europe can respond more effectively and efficiently to the major challenges society is facing today. Deepening the European Research Area (ERA) through greater integration and cross-border coordination of research investments and activities will increase Europe's competitiveness and its attractiveness as a place to invest in research and innovation. Promoting European ICTs worldwide as a key driver of socio-economic growth will also contribute to the Growth and Jobs agenda1. Deepening the ERA should go hand in hand with widening it, through enhanced cooperation with international partners.
Ralf Grahn
Saturday, 19 April 2008
EU TFEU: Free movement of capital and third countries
The preceding Article 56 of the Treaty establishing the European Community (TEC) and Article 63 of the Treaty on the Functioning of the European Union (TFEU) prohibited all restrictions on the movement of capital and on payments between member states and between member states and third countries.
But the primary goal has been to guarantee the free flow of capital within the European Community (European Union), with third countries subject to exceptions detailed in Article 57 TEC and 64 TFEU.
As regards third countries liberalisation is till professed, but derogations confessed.
***
Article 64 of the Treaty on the Functioning of the European Union (TFEU) is presented as it stands after the intergovernmental conference (IGC 2007) in the Treaty of Lisbon (ToL) and provisionally consolidated by the Council of the European Union (document 6655/08; page 93-94), with the location of the provision added from the table of equivalences (page 460 to 462):
Part Three ‘Policies and internal actions of the Union’
Title IV TFEU (ex Title III) ‘Free movement of persons, services and capital’
Chapter 4 ‘Capital and payments’
Article 64 TFEU
(ex Article 57 TEC)
1. The provisions of Article 63 shall be without prejudice to the application to third countries of any restrictions which exist on 31 December 1993 under national or Union law adopted in respect of the movement of capital to or from third countries involving direct investment – including in real estate – establishment, the provision of financial services or the admission of securities to capital markets. In respect of restrictions existing under national law in Bulgaria, Estonia and Hungary, the relevant date shall be 31 December 1999.
2. Whilst endeavouring to achieve the objective of free movement of capital between Member States and third countries to the greatest extent possible and without prejudice to the other Chapters of the Treaties, the European Parliament and the Council, acting in accordance with the ordinary legislative procedure, shall adopt the measures on the movement of capital to or from third countries involving direct investment – including investment in real estate – establishment, the provision of financial services or the admission of securities to capital markets.
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.
***
The specific Lisbon Treaty amendments to Article 57 of the Treaty establishing the European Community (TEC) are mentioned in point 60 (OJ 17.12.2007 C 306/55):
CAPITAL
60) In Article 57(2), the words ‘the Council may, acting by a qualified majority on a proposal from the Commission, adopt measures’ shall be replaced by ‘the European Parliament and the Council, acting in accordance with the ordinary legislative procedure, shall adopt the measures’ and the last sentence of paragraph 2 shall become paragraph 3, reading as follows:
‘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.’
***
For comparison, the current Article 57 TEC looks like this (in the latest consolidated version of the treaties in force, OJ 29.12.2006 C 321 E/64):
Article 57 TEC
1. The provisions of Article 56 shall be without prejudice to the application to third countries of any restrictions which exist on 31 December 1993 under national or Community law adopted in respect of the movement of capital to or from third countries involving direct investment – including in real estate – establishment, the provision of financial services or the admission of securities to capital markets. In respect of restrictions existing under national law in Estonia and Hungary, the relevant date shall be 31 December 1999.
2. Whilst endeavouring to achieve the objective of free movement of capital between Member States and third countries to the greatest extent possible and without prejudice to the other Chapters of this Treaty, the Council may, acting by a qualified majority on a proposal from the Commission, adopt measures on the movement of capital to or from third countries involving direct investment – including investment in real estate – establishment, the provision of financial services or the admission of securities to capital markets. Unanimity shall be required for measures under this paragraph which constitute a step back in Community law as regards the liberalisation of the movement of capital to or from third countries.
____________________________________________________________________
A footnote to Article 57 TEC adds the following information: Article amended by the 2003 Act of Accession. See Appendix at the end of this publication.
***
The European Convention proposed the following Article III-46 of the draft Treaty establishing a Constitution for Europe (18.7.2003 C 169/34-35):
Article III-46 Draft Constitution
1. Article III-45 shall be without prejudice to the application to third countries of any restrictions which existed on 31 December 1993 under national or Union law adopted in respect of the movement of capital to or from third countries involving direct investment — including in real estate —, establishment, the provision of financial services or the admission of securities to capital markets.
2. European laws or framework laws shall enact measures on the movement of capital to or from third countries involving direct investment — including investment in real estate —, establishment, the provision of financial services or the admission of securities to capital markets.
The European Parliament and the Council of Ministers shall endeavour to achieve the objective of free movement of capital between Member States and third countries to the greatest extent possible and without prejudice to other provisions of the Constitution.
3. Notwithstanding paragraph 2, only a European law or framework law of the Council of Ministers may enact measures which constitute a step back in Union law as regards the liberalisation of the movement of capital to or from third countries. The Council of Ministers shall act unanimously after consulting the European Parliament.
***
Article III-157 of the Treaty establishing a Constitution for Europe added the effects of the 2003 Accession Treaty (OJ 16.12.2004 C 310/66-67):
Article III-157 Constitution
1. Article III-156 shall be without prejudice to the application to third countries of any restrictions which existed on 31 December 1993 under national or Union law adopted in respect of the movement of capital to or from third countries involving direct investment — including investment in real estate, establishment, the provision of financial services or the admission of securities to capital markets. With regard to restrictions which exist under national law in Estonia and Hungary, the date in question shall be 31 December 1999.
2. European laws or framework laws shall enact measures on the movement of capital to or from third countries involving direct investment — including investment in real estate, establishment, the provision of financial services or the admission of securities to capital markets.
The European Parliament and the Council shall endeavour to achieve the objective of free movement of capital between Member States and third countries to the greatest extent possible and without prejudice to other provisions of the Constitution.
3. Notwithstanding paragraph 2, only a European law or framework law of the Council may enact measures which constitute a step backwards in Union law as regards the liberalisation of the movement of capital to or from third countries. The Council shall act unanimously after consulting the European Parliament.
***
What, if anything, happened to Article 57 TEC during the post-Nice treaty reform cycle?
Article III-46(1) of the draft Constitution was essentially the same as Article 57(1) TEC, but the Accession Act 2003 added the last sentence on national law in Estonia and Hungary and the stand-still date of 31 December 1999 to the latest consolidated TEC version.
Article III-46(2) of the draft Constitution was arguably easier to read than Article 57(2) TEC. The European Convention proposed its general terminology concerning legislative acts – European laws or framework laws – and substantially the extension of the ordinary legislative procedure (co-decision) to the movement of capital to or from third countries.
Backsliding on achieved liberalisation regarding third countries became Article III-46(3) in the draft Constitution instead of the last sentence of Article 57(2) TEC. Unanimity in the Council was retained, but the European Parliament was to be consulted.
Compared to the draft Constitution the Constitutional Treaty inserted the last sentence on the new member states Estonia and Hungary into the first paragraph of Article III-157.
In Article III-157 Constitution ‘a step back’ became ‘a step backwards’, but otherwise the draft and the Constitution have the same wording.
The Treaty of Lisbon, Article 64 TFEU, takes over as horizontal amendments ‘Union law’ instead of ‘Community law’ and ‘the Treaties’ instead of ‘this Treaty’ from the draft Constitution and the Constitutional Treaty.
The new entrant Bulgaria is added to Estonia and Hungary at the end of paragraph 1. The dash between ‘real estate’ and ‘establishment’, mislaid by the Constitution Article II-157(1) and (2), was retained in Article 64(1) and (2) TFEU as part of the Article 57(1) and (2) TEC text.
The ordinary legislative procedure is adopted in Article 64(2) TFEU, substantially in line with the European Convention’s proposal and the agreement by the IGC 2004.
When the last sentence of Article 57(2) TEC is deleted and replaced by the third paragraph the Lisbon Treaty Article 64 TFEU adopts, the wording resembles a hybrid between all the reform stages.
***
Article 64(1) is a stand-still clause as regards capital movements to and from third countries. Its subject matter covers direct investment – including in real estate – establishment, the provision of financial services or the admission of securities to capital markets.
The stand-still date is 31 December 1993 for Union law and national law in general, except for Bulgaria, Estonia and Hungary where the date is 31 December 1999.
The Appendix to the latest consolidated version of the current treaties ‘Amendments fo primary legislation further to the accession of the Republic of Bulgaria and Romania to the European Union’ contains the following text concerning the Treaty establishing the European Community (OJ 29.12.2006 C 321 E/327):
1. The last sentence of Article 57(1) shall be replaced by the following:
‘In respect of restrictions existing under national law in Bulgaria, Estonia and Hungary, the relevant date shall be 31 December 1999.’
This has now been inserted into the Treaty of Lisbon (TFEU).
New restrictions can be introduced only according to the special legislative procedure requiring unanimity in the Council (paragraph 3).
***
As regards further reading, I refer the interested reader to yesterday’s post ‘EU TFEU: Free movement of capital’.
Ralf Grahn
But the primary goal has been to guarantee the free flow of capital within the European Community (European Union), with third countries subject to exceptions detailed in Article 57 TEC and 64 TFEU.
As regards third countries liberalisation is till professed, but derogations confessed.
***
Article 64 of the Treaty on the Functioning of the European Union (TFEU) is presented as it stands after the intergovernmental conference (IGC 2007) in the Treaty of Lisbon (ToL) and provisionally consolidated by the Council of the European Union (document 6655/08; page 93-94), with the location of the provision added from the table of equivalences (page 460 to 462):
Part Three ‘Policies and internal actions of the Union’
Title IV TFEU (ex Title III) ‘Free movement of persons, services and capital’
Chapter 4 ‘Capital and payments’
Article 64 TFEU
(ex Article 57 TEC)
1. The provisions of Article 63 shall be without prejudice to the application to third countries of any restrictions which exist on 31 December 1993 under national or Union law adopted in respect of the movement of capital to or from third countries involving direct investment – including in real estate – establishment, the provision of financial services or the admission of securities to capital markets. In respect of restrictions existing under national law in Bulgaria, Estonia and Hungary, the relevant date shall be 31 December 1999.
2. Whilst endeavouring to achieve the objective of free movement of capital between Member States and third countries to the greatest extent possible and without prejudice to the other Chapters of the Treaties, the European Parliament and the Council, acting in accordance with the ordinary legislative procedure, shall adopt the measures on the movement of capital to or from third countries involving direct investment – including investment in real estate – establishment, the provision of financial services or the admission of securities to capital markets.
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.
***
The specific Lisbon Treaty amendments to Article 57 of the Treaty establishing the European Community (TEC) are mentioned in point 60 (OJ 17.12.2007 C 306/55):
CAPITAL
60) In Article 57(2), the words ‘the Council may, acting by a qualified majority on a proposal from the Commission, adopt measures’ shall be replaced by ‘the European Parliament and the Council, acting in accordance with the ordinary legislative procedure, shall adopt the measures’ and the last sentence of paragraph 2 shall become paragraph 3, reading as follows:
‘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.’
***
For comparison, the current Article 57 TEC looks like this (in the latest consolidated version of the treaties in force, OJ 29.12.2006 C 321 E/64):
Article 57 TEC
1. The provisions of Article 56 shall be without prejudice to the application to third countries of any restrictions which exist on 31 December 1993 under national or Community law adopted in respect of the movement of capital to or from third countries involving direct investment – including in real estate – establishment, the provision of financial services or the admission of securities to capital markets. In respect of restrictions existing under national law in Estonia and Hungary, the relevant date shall be 31 December 1999.
2. Whilst endeavouring to achieve the objective of free movement of capital between Member States and third countries to the greatest extent possible and without prejudice to the other Chapters of this Treaty, the Council may, acting by a qualified majority on a proposal from the Commission, adopt measures on the movement of capital to or from third countries involving direct investment – including investment in real estate – establishment, the provision of financial services or the admission of securities to capital markets. Unanimity shall be required for measures under this paragraph which constitute a step back in Community law as regards the liberalisation of the movement of capital to or from third countries.
____________________________________________________________________
A footnote to Article 57 TEC adds the following information: Article amended by the 2003 Act of Accession. See Appendix at the end of this publication.
***
The European Convention proposed the following Article III-46 of the draft Treaty establishing a Constitution for Europe (18.7.2003 C 169/34-35):
Article III-46 Draft Constitution
1. Article III-45 shall be without prejudice to the application to third countries of any restrictions which existed on 31 December 1993 under national or Union law adopted in respect of the movement of capital to or from third countries involving direct investment — including in real estate —, establishment, the provision of financial services or the admission of securities to capital markets.
2. European laws or framework laws shall enact measures on the movement of capital to or from third countries involving direct investment — including investment in real estate —, establishment, the provision of financial services or the admission of securities to capital markets.
The European Parliament and the Council of Ministers shall endeavour to achieve the objective of free movement of capital between Member States and third countries to the greatest extent possible and without prejudice to other provisions of the Constitution.
3. Notwithstanding paragraph 2, only a European law or framework law of the Council of Ministers may enact measures which constitute a step back in Union law as regards the liberalisation of the movement of capital to or from third countries. The Council of Ministers shall act unanimously after consulting the European Parliament.
***
Article III-157 of the Treaty establishing a Constitution for Europe added the effects of the 2003 Accession Treaty (OJ 16.12.2004 C 310/66-67):
Article III-157 Constitution
1. Article III-156 shall be without prejudice to the application to third countries of any restrictions which existed on 31 December 1993 under national or Union law adopted in respect of the movement of capital to or from third countries involving direct investment — including investment in real estate, establishment, the provision of financial services or the admission of securities to capital markets. With regard to restrictions which exist under national law in Estonia and Hungary, the date in question shall be 31 December 1999.
2. European laws or framework laws shall enact measures on the movement of capital to or from third countries involving direct investment — including investment in real estate, establishment, the provision of financial services or the admission of securities to capital markets.
The European Parliament and the Council shall endeavour to achieve the objective of free movement of capital between Member States and third countries to the greatest extent possible and without prejudice to other provisions of the Constitution.
3. Notwithstanding paragraph 2, only a European law or framework law of the Council may enact measures which constitute a step backwards in Union law as regards the liberalisation of the movement of capital to or from third countries. The Council shall act unanimously after consulting the European Parliament.
***
What, if anything, happened to Article 57 TEC during the post-Nice treaty reform cycle?
Article III-46(1) of the draft Constitution was essentially the same as Article 57(1) TEC, but the Accession Act 2003 added the last sentence on national law in Estonia and Hungary and the stand-still date of 31 December 1999 to the latest consolidated TEC version.
Article III-46(2) of the draft Constitution was arguably easier to read than Article 57(2) TEC. The European Convention proposed its general terminology concerning legislative acts – European laws or framework laws – and substantially the extension of the ordinary legislative procedure (co-decision) to the movement of capital to or from third countries.
Backsliding on achieved liberalisation regarding third countries became Article III-46(3) in the draft Constitution instead of the last sentence of Article 57(2) TEC. Unanimity in the Council was retained, but the European Parliament was to be consulted.
Compared to the draft Constitution the Constitutional Treaty inserted the last sentence on the new member states Estonia and Hungary into the first paragraph of Article III-157.
In Article III-157 Constitution ‘a step back’ became ‘a step backwards’, but otherwise the draft and the Constitution have the same wording.
The Treaty of Lisbon, Article 64 TFEU, takes over as horizontal amendments ‘Union law’ instead of ‘Community law’ and ‘the Treaties’ instead of ‘this Treaty’ from the draft Constitution and the Constitutional Treaty.
The new entrant Bulgaria is added to Estonia and Hungary at the end of paragraph 1. The dash between ‘real estate’ and ‘establishment’, mislaid by the Constitution Article II-157(1) and (2), was retained in Article 64(1) and (2) TFEU as part of the Article 57(1) and (2) TEC text.
The ordinary legislative procedure is adopted in Article 64(2) TFEU, substantially in line with the European Convention’s proposal and the agreement by the IGC 2004.
When the last sentence of Article 57(2) TEC is deleted and replaced by the third paragraph the Lisbon Treaty Article 64 TFEU adopts, the wording resembles a hybrid between all the reform stages.
***
Article 64(1) is a stand-still clause as regards capital movements to and from third countries. Its subject matter covers direct investment – including in real estate – establishment, the provision of financial services or the admission of securities to capital markets.
The stand-still date is 31 December 1993 for Union law and national law in general, except for Bulgaria, Estonia and Hungary where the date is 31 December 1999.
The Appendix to the latest consolidated version of the current treaties ‘Amendments fo primary legislation further to the accession of the Republic of Bulgaria and Romania to the European Union’ contains the following text concerning the Treaty establishing the European Community (OJ 29.12.2006 C 321 E/327):
1. The last sentence of Article 57(1) shall be replaced by the following:
‘In respect of restrictions existing under national law in Bulgaria, Estonia and Hungary, the relevant date shall be 31 December 1999.’
This has now been inserted into the Treaty of Lisbon (TFEU).
New restrictions can be introduced only according to the special legislative procedure requiring unanimity in the Council (paragraph 3).
***
As regards further reading, I refer the interested reader to yesterday’s post ‘EU TFEU: Free movement of capital’.
Ralf Grahn
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