EU Lisbon Treaty: Convoy principle strikes again (QMV)

„Warum einfach, wenn es auch kompliziert geht?“ The European Union is legendary for its ability to complicate matters when it acts or fails to act, especially in the fields of intergovernmental cooperation. The EU advances according to the convoy principle, at the speed of the slowest member.

The Lisbon Treaty has been praised as a reform to make the EU institutions more effective, but the price of the unanimity rule was to delay the effect of the new provisions on qualified majority voting (QMV) in the Council, enough to confound all but the most persistent followers of EU affairs.

As a semi-perennial monument to the ingenuity of the Polish Kaczynski twins, aficionados of EU affairs were left with a four stage process of transition to the so called double majority:

1. Nice Treaty rules in force until 31 October 2014
2. Lisbon Treaty rules from 1 November 2014, but subject to
3. Transitional rules from 1 November 2014 to 31 Mars 2017, still tempered by
4. Delaying action from 1 April 2017 (Ioannina compromise)

Formally, one part of this mess has now been officially published in the Official Journal of the European Union:




Council decision of 13 December 2007 relating to the implementation of Article 9C(4) of the Treaty on European Union and Article 205(2) of the Treaty on the Functioning of the European Union between 1 November 2014 and 31 March 2017 on the one hand, and as from 1 April 2017 on the other (2009/857/EC); OJEU 1.12.2009 L 314/73.


N.B. After renumbering, Article 9c TEU is Article 16 TEU in the consolidated version of the Lisbon Treaty, and Article 205 TFEU has become Article 238 TFEU.

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The governments of the EU member states are not devoid of a sense of wry humour. The Council decision starts by stating the reasons (Whereas):

Provisions should be adopted allowing for a smooth transition from the system for decision-making in the Council by a qualified majority...

Ralf Grahn



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EU Lisbon Treaty implementation: Slowly into practice

By now, many Europeans know that the EU Treaty of Lisbon (OJEU 9.5.2008 C 115) enters into force on 1 December 2009. However, the flurry of activities to take the first decisions to get the treaty up and running obscures the fact that many adjustments take effect only after transitional periods and that a number of new procedures have to be put into place before they become living law.

(At the end of this blog post we look at some French books on the Lisbon Treaty.)

Jean-Luc-Sauron offers us an opportune reminder of the gradual coming into effect of the Lisbon Treaty, on Diploweb, the French web site for geopolitics:



Jean-Luc Sauron: Le traité de Lisbonne : un traité à effet retardé ? (Diploweb.com, La revue géopolitique, 22 November 2009).


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Sauron’s article is a detailed but short compilation of the Lisbon Treaty provisions with “delayed action”, a handy reference for serious students.


Books on the Lisbon Treaty (in French)


Since the literature on the Lisbon Treaty is still small and the standard books on EU law and politics have not yet fully integrated the amendments of the reform treaty, I take the opportunity to remind readers of the general introduction written by Jean-Luc Sauron: Comprendre le Traité de Lisbonne (Gualino éditeur, 2008). The book offers an overview of the changes as well as the preliminary consolidated texts of the provisions.

Another introduction for the (more) general reader is Étienne de Poncins: Le traité de Lisbonne en 27 clés (Éditions Lignes de Repères, 2008).

A more detailed book, for teachers and students, is François-Xavier Priollaud & David Siritzky : Le traité de Lisbonne (LaDocumentation française, 2008).





Ralf Grahn



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New EU member states: Freer movement of workers

Tomorrow, 1 May 2009, five years have passed since the “big bang” enlargement of the European Union. The ten acceding member states were: Cyprus, the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Malta, Poland, Slovakia and Slovenia. (Bulgaria and Romania became EU member states on 1 January 2007.)

One of the principal aims of the European Community (European Union) is to eliminate barriers which divide Europe. For these purposes the EC (EU) activities include an internal market characterised by the abolition, as between the member states, of obstacles to the free movement of goods, persons, services and capital.

In other words, the four fundamental market freedoms which relate to free movement are not restricted to goods, services and capital, but apply to human beings as well.

New developments

Denmark lifts all and Belgium some restrictions on the free movement of workers from 1 May 2009. See the Commission’s press release: European Commission welcomes the decisions by Belgium and Denmark to open their labour markets (29 April 2009).



For an overview of the transitional provisions concerning workers from you can turn to the web page Enlargement - transitional provisions and the links you find there.




Ralf Grahn

European Council voting rules

The EU Treaty of Lisbon turns the European Council into an institution, which needs rules on decision making. Consensus is the normal mode of operation for political guidelines, and a number of concrete decisions are taken by unanimity. In some instances the European Council can advance by voting. (The various situations have been presented in earlier posts.)

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Original Lisbon Treaty

Article 2, point 189 of the original Treaty of Lisbon inserted a new Section 1a on the European Council and new Articles 201a and 202b (OJEU 17.12.2007 C 306/103).

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Consolidated Lisbon Treaty

In the consolidated Treaty of Lisbon we find Article 201a as the renumbered Article 235 of the Treaty on the Functioning of the European Union (TFEU), in Part Six Institutional and financial provisions, Title 1 Institutional provisions, Chapter 1 The institutions, Section 2 The European Council (OJEU 9.5.2008 C 115/152─153):

SECTION 2
THE EUROPEAN COUNCIL

Article 235 TFEU

1. Where a vote is taken, any member of the European Council may also act on behalf of not more than one other member.

Article 16(4) of the Treaty on European Union and Article 238(2) of this Treaty shall apply to the European Council when it is acting by a qualified majority. Where the European Council decides by vote, its President and the President of the Commission shall not take part in the vote.

Abstentions by members present in person or represented shall not prevent the adoption by the European Council of acts which require unanimity.

2. The President of the European Parliament may be invited to be heard by the European Council.

3. The European Council shall act by a simple majority for procedural questions and for the adoption of its Rules of Procedure.

4. The European Council shall be assisted by the General Secretariat of the Council.


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Qualified majority

The reference to Article 16(4) of the Treaty on European Union (TEU) gives us the key to the intended permanent definition of a qualified majority from 1 November 2014:

Article 16(4) TEU
4. As from 1 November 2014, a qualified majority shall be defined as at least 55 % of the members of the Council, comprising at least fifteen of them and representing Member States comprising at least 65 % of the population of the Union.

A blocking minority must include at least four Council members, failing which the qualified majority shall be deemed attained.

The other arrangements governing the qualified majority are laid down in Article 238(2) of the Treaty on the Functioning of the European Union.


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Without Commission or High Representative proposal


From 1 November 2014, when the European Council decides without a proposal from the Commission or the High Representative, the threshold for the qualified majority is set at 72 per cent of the members instead of 55 per cent:


Article 238(2) TFEU

2. By way of derogation from Article 16(4) of the Treaty on European Union, as from 1 November 2014 and subject to the provisions laid down in the Protocol on transitional provisions, where the Council does not act on a proposal from the Commission or from the High Representative of the Union for Foreign Affairs and Security Policy, the qualified majority shall be defined as at least 72 % of the members of the Council, representing Member States comprising at least 65 % of the population of the Union.


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Transitional provisions

If the Lisbon Treaty enters into force and if the reform is sensible, why not apply the rules from day one?

Instead, to reach unanimous agreement, the intergovernmental conference had to postpone the application almost to the end of 2014.

Title II Provisions concerning the qualified majority (Article 3) of Protocol (No 36) on transitional provisions lays down the rules applicable until then.

(In addition, between 1 November 2014 and 31 March 2017 a member of the Council may request that an act is to be adopted in accordance with the old rules.)


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Reforming the EU

Thorough reform of the European Union, especially since the latest enlargements, is a “mission impossible”. The aims have to be set ludicrously low in order to reach agreement between governments, and we have seen that it would take almost a miracle of political stability and maturity to complete the ratification procedures in every member state within a decent time-frame.

The reform cycle started in December 2000 in Nice is still unfinished, but the Lisbon Treaty has long ago been overtaken by international challenges, financial crisis and economic recession, making transitional postponements all the more pathetic.


Ralf Grahn

Lisbon Treaty & European Council: Voting rules

The voting rules for the European Council are essentially the same as for the Council. They are the results of the political blackmail invited by the requirement to agree unanimously on treaty amendments.


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VOTING RULES





European Council voting

Article 235 TFEU lays down the voting rules for the European Council. The provision offers a member the possibility to be represented by another (as did take place between Gerhard Schröder and Jacques Chirac).

The President of the European Council and the President of the Commission do not take part in the vote.

The same rules apply as to the Council: the definition of a qualified majority from 1 November 2014 and a blocking majority (Article 16(4) TEU). But further details are needed (Article 238(2) TFEU and the Protocol on transitional provisions) to come to grips with the applicable rules.

Abstentions offer less enthusiastic members an opportunity to show detachment without wrecking the progress of others when unanimous decisions are needed.

Procedural questions and the adoption of the European Council’s Rules of Procedure require only a simple majority:


Article 235 TFEU

1. Where a vote is taken, any member of the European Council may also act on behalf of not more than one other member.

Article 16(4) of the Treaty on European Union and Article 238(2) of this Treaty shall apply to the European Council when it is acting by a qualified majority. Where the European Council decides by vote, its President and the President of the Commission shall not take part in the vote.

Abstentions by members present in person or represented shall not prevent the adoption by the European Council of acts which require unanimity.

2. The President of the European Parliament may be invited to be heard by the European Council.

3. The European Council shall act by a simple majority for procedural questions and for the adoption of its Rules of Procedure.

4. The European Council shall be assisted by the General Secretariat of the Council.


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To see the full mess, read Article 3 of Protocol (No 36) on transitional provisions, with provisions concerning the qualified majority.

(Negotiating treaties under multiple unanimity rules leaves its marks on the results, and they leave one wondering if they are in anybody’s interest, national or other.)



Ralf Grahn

EMU: Balance of payments crisis and safeguard measures

EU institutions, finance ministries, corporations and EU citizens have reason to study the possible remedies to serious balance of payments difficulties, in case matters take a turn to the worse.

“Living in interesting times” as regards international financial markets, it may be good to know that the current Treaty establishing the European Community (TEC) and the Treaty on the Functioning of the European Union (TFEU) foresee temporary safeguard measures to protect economic and monetary union (EMU) in exceptional circumstances.

There are separate transitional provisions for the EU member states with a derogation, i.e. outside the eurozone.


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EMU safeguard measures

Current TEC

The European Community (European Union) prohibits all restrictions on the movement of capital and payments between member states and between member states and third countries, although abolishing existing restrictions with regard to third countries is a less absolute aim.

Within the context of economic and monetary union (EMU) restrictions are unthinkable, but in exceptional circumstances serious difficulties may give cause for temporary safeguard measures with regard to third countries.


The current Article 59 (ex Article 109i) of the Treaty establishing the European Community (TEC) is found in the latest consolidated version of the treaties (OJ 29.12.2006 C 321 E/65):

Article 59 TEC

Where, in exceptional circumstances, movements of capital to or from third countries cause, or threaten to cause, serious difficulties for the operation of economic and monetary union, the Council, acting by a qualified majority on a proposal from the Commission and after consulting the ECB, may take safeguard measures with regard to third countries for a period not exceeding six months if such measures are strictly necessary.

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Lisbon Treaty


The Treaty of Lisbon, still on its rocky road to possible entry into force, is the most up-to-date manifestation of what the member state governments want the treaties to say.

Article 66 of the Treaty on the Functioning of the European Union (TFEU) retains the current safeguard measures without substantial change. See the concolidated TFEU, published in the Official Journal of the European Union, OJ 9.5.2008 C 115/73:

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 66 TFEU
(ex Article 59 TEC)

Where, in exceptional circumstances, movements of capital to or from third countries cause, or threaten to cause, serious difficulties for the operation of economic and monetary union, the Council, on a proposal from the Commission and after consulting the European Central Bank, may take safeguard measures with regard to third countries for a period not exceeding six months if such measures are strictly necessary.


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Comment


We live “in interesting times” as regards the stability of the financial markets, so Article 59 TEC and Article 66 TFEU may be of more than purely theoretical interest.

The provision offers the EU possibilities to safeguard the operation of economic and monetary union (EMU) with regard to third countries.

These measures can not be taken lightly: ‘exceptional circumstances’, ‘serious difficulties’ and ‘strictly necessary’ all circumscribe recourse to such measures, which are contrary to the aims of free movement of capital and payments.

In addition, six months is the maximum duration of a measure (but the wording does not exclude a new decision).

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Transitional provisions

There are still twelve EU member states outside the eurozone. Denmark and the United Kingdom have negotiated exceptions (opt-outs) unlimited in time. The other member states with a derogation are Bulgaria, the Czech Republic, Estonia, Latvia, Lithuania, Hungary, Poland, Romania, Slovakia (until 1 January 2009) and Sweden.

The transitional EMU provisions take account of potential balance of payments problems at two levels, serious problems and a sudden crisis.

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Serious balance of payments difficulties

Existing TEC

Article 119 TEC (ex Article 109h) sets out the current rules, which illustrate how the problems of one member state may have repercussions for the rest, notably through the internal market and external trade (in relation to third countries).

Primarily, if a member state (with a derogation) is seriously threatened with balance of payments problems, the member state acts, within the provisions of the TEC, to remedy the situation. Then, the Commission investigates and may issue recommendations to the state.

If the actions are insufficient, the Commission can recommend that the Council grants mutual assistance to the member state in difficulties.

If mutual assistance is not granted, or if the assistance given and the measures taken prove to be insufficient, the Commission can authorise the member state to take (exceptional) protective measures. These are subject to ex post review by the Council.

The current Article 119 TEC (in the latest consolidated version of the treaties, OJ 29.12.2006 C 321 E/96-97):


Article 119 TEC

1. Where a Member State is in difficulties or is seriously threatened with difficulties as regards its balance of payments either as a result of an overall disequilibrium in its balance of payments, or as a result of the type of currency at its disposal, and where such difficulties are liable in particular to jeopardise the functioning of the common market or the progressive implementation of the common commercial policy, the Commission shall immediately investigate the position of the State in question and the action which, making use of all the means at its disposal, that State has taken or may take in accordance with the provisions of this Treaty. The Commission shall state what measures it recommends the State concerned to take.

If the action taken by a Member State and the measures suggested by the Commission do not prove sufficient to overcome the difficulties which have arisen or which threaten, the Commission shall, after consulting the Committee referred to in Article 114, recommend to the Council the granting of mutual assistance and appropriate methods therefor.

The Commission shall keep the Council regularly informed of the situation and of how it is developing.

2. The Council, acting by a qualified majority, shall grant such mutual assistance; it shall adopt directives or decisions laying down the conditions and details of such assistance, which may take such forms as:

(a) a concerted approach to or within any other international organisations to which Member States may have recourse;

(b) measures needed to avoid deflection of trade where the State which is in difficulties maintains or reintroduces quantitative restrictions against third countries;

(c) the granting of limited credits by other Member States, subject to their agreement.
3. If the mutual assistance recommended by the Commission is not granted by the Council or if the mutual assistance granted and the measures taken are insufficient, the Commission shall authorise the State which is in difficulties to take protective measures, the conditions and details of which the Commission shall determine.

Such authorisation may be revoked and such conditions and details may be changed by the Council acting by a qualified majority.

4. Subject to Article 122(6), this Article shall cease to apply from the beginning of the third stage.


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Lisbon Treaty

Article 143 of the Treaty on the Functioning of the European Union (TFEU) takes over the substance of Article 119 TEC, but the updated wording more clearly presents the transitional character of the provision and that the provision concerns member states with a derogation.

Article 143 TFEU in the consolidated version of the Lisbon Treaty, OJ 9.5.2008 C 115/110-111:


Article 143 TFEU
(ex Article 119 TEC)

1. Where a Member State with a derogation is in difficulties or is seriously threatened with difficulties as regards its balance of payments either as a result of an overall disequilibrium in its balance of payments, or as a result of the type of currency at its disposal, and where such difficulties are liable in particular to jeopardise the functioning of the internal market or the implementation of the common commercial policy, the Commission shall immediately investigate the position of the State in question and the action which, making use of all the means at its disposal, that State has taken or may take in accordance with the provisions of the Treaties. The Commission shall state what measures it recommends the State concerned to take.

If the action taken by a Member State with a derogation and the measures suggested by the Commission do not prove sufficient to overcome the difficulties which have arisen or which threaten, the Commission shall, after consulting the Economic and Financial Committee, recommend to the Council the granting of mutual assistance and appropriate methods therefor.

The Commission shall keep the Council regularly informed of the situation and of how it is developing.

2. The Council shall grant such mutual assistance; it shall adopt directives or decisions laying down the conditions and details of such assistance, which may take such forms as:

(a) a concerted approach to or within any other international organisations to which Member States with a derogation may have recourse;

(b) measures needed to avoid deflection of trade where the Member State with a derogation which is in difficulties maintains or reintroduces quantitative restrictions against third countries;

(c) the granting of limited credits by other Member States, subject to their agreement.

3. If the mutual assistance recommended by the Commission is not granted by the Council or if the mutual assistance granted and the measures taken are insufficient, the Commission shall authorise the Member State with a derogation which is in difficulties to take protective measures, the conditions and details of which the Commission shall determine.

Such authorisation may be revoked and such conditions and details may be changed by the Council.


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Balance of payments crisis

Protective measures

Current TEC

Article 119 TEC (and Article 143 TFEU) concerned serious balance of payments difficulties. The second level is represented by Article 120 TEC, which concerns even more serious imbalances, namely a sudden crisis, which may lead to (exceptional) protective measures:

Article 120 TEC in the latest consolidated version of the treaties, OJ 29.12.2006 C 321 E/97:
Page 97

Article 120 TEC

1. Where a sudden crisis in the balance of payments occurs and a decision within the meaning of Article 119(2) is not immediately taken, the Member State concerned may, as a precaution, take the necessary protective measures. Such measures must cause the least possible disturbance in the functioning of the common market and must not be wider in scope than is strictly necessary to remedy the sudden difficulties which have arisen.

2. The Commission and the other Member States shall be informed of such protective measures not later than when they enter into force. The Commission may recommend to the Council the granting of mutual assistance under Article 119.

3. After the Commission has delivered an opinion and the Committee referred to in Article 114 has been consulted, the Council may, acting by a qualified majority, decide that the State concerned shall amend, suspend or abolish the protective measures referred to above.

4. Subject to Article 122(6), this Article shall cease to apply from the beginning of the third
stage.

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Lisbon Treaty

The Articles 143 and 144 TFEU are closely linked. When balance of payments problems occur suddenly and on a massive scale, Article 144 TFEU with potential unilateral protective measures kicks in.

Article 144 TFEU does not change the substance of Article 120 TEC. Disturbances in the functioning of the internal market must still be minimal and the scope of the measures restricted to the strictly necessary.

These exceptional measures quickly become European Union (European Community) matters. The Commission and the Council (Ecofin) can act to grant mutual assistance to a member state hit by a balance of payments crisis, but the EU institutions also review the measures ex post.

The Lisbon Treaty wording clarifies and updates the provision. Because of the beginning of third stage of economic and monetary union (EMU), Article 144 TFEU clearly expresses that this provision directly concerns the member states with a derogation (OJ 9.5.2008 C 115/111):




Article 144 TFEU
(ex Article 120 TEC)

1. Where a sudden crisis in the balance of payments occurs and a decision within the meaning of Article 143(2) is not immediately taken, a Member State with a derogation may, as a precaution, take the necessary protective measures. Such measures must cause the least possible disturbance in the functioning of the internal market and must not be wider in scope than is strictly necessary to remedy the sudden difficulties which have arisen.

2. The Commission and the other Member States shall be informed of such protective measures not later than when they enter into force. The Commission may recommend to the Council the granting of mutual assistance under Article 143.

3. After the Commission has delivered a recommendation and the Economic and Financial Committee has been consulted, the Council may decide that the Member State concerned shall amend, suspend or abolish the protective measures referred to above.

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The existing and the proposed treaty provisions on responses to exceptional circumstances are clearly based on the idea of an evolving de facto solidarity between the member states of the European Union.

Serious difficulties and crises have to be faced together, although there are different provisions for the eurozone as a whole and the non-euro area member states (with a derogation), still forced to fight the financial tempests individually.


Ralf Grahn


P.S. A more detailed blog article on Article 119 TEC and Article 143 TFEU was meant to precede the above post, but it got stuck in technical problems, which have to be sorted out before publication.

General Council of the European Central Bank

The European Central Bank (ECB) and the national central banks of the euro area form the European System of Central Banks (ESCB), or the Eurosystem. But at this moment twelve (soon eleven) EU member states are (still) outside the Eurozone.

The General Council of the European Central Bank is the transitional link between the Eurosystem and the EU members with a national currency and a so called derogation.

This blog post is dedicated to our readers in Bulgaria, the Czech Republic, Denmark, Estonia, Latvia, Lithuania, Hungary, Poland, Romania, Slovakia, Sweden and the United Kingdom.


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Current treaty

The current Treaty establishing the European Community (TEC) sets out Transitional provisions in Chapter 4 of Title VII Economic and monetary policy, in Part Three Community policies (in the latest codified version of the treaties, Official Journal 29.12.2006 C 321 E/93─101).

Chapter 4 Transitional provisions contains Articles 116 to 124 TEC.

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General Council of the ECB

Article 123(3) TEC sets up the General Council of the ECB as a transitional body:

Article 123(3) TEC

-----
3. If and as long as there are Member States with a derogation, and without prejudice to
Article 107(3) of this Treaty, the General Council of the ECB referred to in Article 45 of the
Statute of the ESCB shall be constituted as a third decision-making body of the ECB.
-----

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ECB decision-making bodies

Since the General Council of the ECB is seen as a transitory exception to the institutional framework of the European Central Bank, the referral to Article 107(3) TEC reminds us of the ordinary decision-making bodies of the ECB:

Article 107(3) TEC

-----
3. The ESCB shall be governed by the decision-making bodies of the ECB which shall be the Governing Council and the Executive Board.

-----

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General Council tasks

At the start of the second stage of economic and monetary union (EMU), the European Monetary Institute (EMI) was established to prepare the establishment of the European Central Bank (ECB) and the introduction of the euro currency (third stage of EMU).

Article 117(2) TEC mentions a number of EMI’s tasks. EMI has been replaced by the ECB.

Article 117(2) TEC

-----
2. The EMI shall:

— strengthen cooperation between the national central banks,

— strengthen the coordination of the monetary policies of the Member States, with the aim of ensuring price stability,

— monitor the functioning of the European Monetary System,

— hold consultations concerning issues falling within the competence of the national central banks and affecting the stability of financial institutions and markets,

— take over the tasks of the European Monetary Cooperation Fund, which shall be dissolved; the modalities of dissolution are laid down in the Statute of the EMI,

— facilitate the use of the ecu and oversee its development, including the smooth functioning of
the ecu clearing system.
-----


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ESCB Statute

Protocol (No 18) on the Statute of the European System of Central Banks and of the European Central Bank (1992), in the latest consolidated version of the treaties OJ 29.12.2006 C 321 E/256, has a Chapter IX Transitional and other provisions for the ESCB.

Article 43 General provision excludes member states with a derogation from enumerated rights and obligations.

Article 44 Transitional tasks of the ECB confers the tasks of the EMI on the ECB and sets out the advisory task of the ECB during the preparation of abrogation of derogations.

Article 45 The General Council of the ECB institutes the General Council as a third decision-making body of the ECB and sets out the institutional basics. Since Article 45 of the ESCB Statute is referred to in Article 123(3) TEC, here is the wording:

Article 45 ESCB Statute
The General Council of the ECB

45.1. Without prejudice to Article 107(3) of this Treaty, the General Council shall be constituted as a third decision-making body of the ECB.

45.2. The General Council shall comprise the President and Vice-President of the ECB and the Governors of the national central banks. The other members of the Executive Board may participate, without having the right to vote, in meetings of the General Council.

45.3. The responsibilities of the General Council are listed in full in Article 47 of this Statute.


Article 46 Rules of Procedure of the General Council.

Article 47 Responsibilities of the General Council.

Article 48 Transitional provisions for the capital of the ECB.

-----

Article 53 Applicability of the transitional provisions states that as long as there are member states with a derogation, Articles 43 to 48 shall be applicable.

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Draft Constitution

The euro currency had been introduced, and the euro banknotes and coins were in circulation, when the European Convention deliberated institutional reform of the European Union. It is hardly surprising that the Convention proposed a reworked section with the aim to simplify and to clarify the transitional provisions.

Section 4 Transitional provisions comprises Articles III-91 to III-96 of the draft Constitution (OJ 18.7.2003 C 169/45─46).

Article III-93 of the draft Constitution is a consolidation and update of the treaty provisions we looked at above:

SECTION 4
Transitional provisions

Article III-93 Draft Constitution

1. If and as long as there are Member States with a derogation, and without prejudice to Article III-79(3), the General Council of the European Central Bank referred to in Article 45 of the Statute of the European System of Central Banks and the European Central Bank shall be constituted as a third decisionmaking body of the European Central Bank.

2. If and as long as there are Member States with a derogation, the European Central Bank shall, as regards those Member States:

(a) strengthen cooperation between the national central banks;

(b) strengthen the coordination of the monetary policies of the Member States, with the aim of ensuring price stability;

(c) monitor the functioning of the exchange-rate mechanism;

(d) hold consultations concerning issues falling within the competence of the national central banks and affecting the stability of financial institutions and markets;

(e) carry out the former tasks of the European Monetary Cooperation Fund, previously taken over by the European Monetary Institute.



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Finland

The Finnish government reported on the results of the European Convention in Valtioneuvoston selonteko Eduskunnalle konventin tuloksista ja valmistautumisesta hallitusten väliseen konferenssiin (VNS 2/2003 vp). Finland had adopted the euro. A section discussed economic and monetary policy (8.5 Talous. ja rahapolitiikka) on pages 65 to 67, but I found nothing specific about Article III-93 of the draft Constitution.

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Sweden

Ahead of the intergovernmental conference, the Swedish government presented its views in a memorandum, Regeringens skrivelse 2003/04:13 Europeiska konventet om EU:s framtid (2 October 2003).

Sweden had not negotiated an opt-out from the treaty obligation to introduce the euro currency, but still the government had arranged a referendum on the adoption. The negative referendum result, which left Sweden in legal limbo, was fresh.

If the updated Article III-93 of the draft Constitution had little practical significance for Finland, the cursory treatment of transitional monetary provisions by the Swedish government may have had other reasons. Anyway, I found no specific mention of draft Constitution Article III-93 in the memorandum.

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de Poncins


Étienne de Poncins presented the text of Article III-93 in Vers une Constitution européenne (Éditions 10/18, 2003), page 315, without comment.

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Constitutional Treaty

The transitional EMU provisions of the intergovernmental conference (IGC 2004) are found in Section 5 Transitional provisions, comprising Articles III-197 to 202 of the Treaty establishing a Constitution for Europe (OJ 16.12.2004 C 310/86─90).

Article III-199 Constitution

1. If and as long as there are Member States with a derogation, and without prejudice to Article III-187(1), the General Council of the European Central Bank referred to in Article 45 of the Statute of the European System of Central Banks and of the European Central Bank shall be constituted as a third decision-making body of the European Central Bank.

2. If and as long as there are Member States with a derogation, the European Central Bank shall, as regards those Member States:

(a) strengthen cooperation between the national central banks;

(b) strengthen the coordination of the monetary policies of the Member States, with the aim of ensuring price stability;

(c) monitor the functioning of the exchange-rate mechanism;

(d) hold consultations concerning issues falling within the competence of the national central banks and affecting the stability of financial institutions and markets;

(e) carry out the former tasks of the European Monetary Cooperation Fund which had subsequently been taken over by the European Monetary Institute.

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Let us see it our standard references contribute anything towards our understanding of the provision.

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Sweden

The government of Sweden, still outside the eurozone as a member state with a derogation, offered a short and bland description of the aims of economic and monetary union (EMU) in the draft ratification bill, Lagrådsremiss Fördraget om upprättande av en konstitution för Europa (2 June 2005), page 171:

.
”Den ekonomiska och monetära unionen (EMU) är ett samarbete inom EU som syftar till att samordna medlemsländernas ekonomiska politik och att införa en gemensam valuta. EMU har genomförts i tre etapper. Den sista etappen inleddes 1999 och innebär en fullbordad valutaunion med gemensam centralbank (Europeiska centralbanken) samt gemensam valuta och penningpolitik. En förutsättning för valutaunionen har varit och är att de deltagande ländernas ekonomier befinner sig på ungefär samma nivå. Ett antal ekonomiska krav som ett land måste uppfylla för att få delta i valutaunionen har därför ställts upp, de s.k. konvergenskriterierna. För att säkerställa sunda offentliga finanser inom unionen har därför EU inrättat den s.k. stabilitets- och tillväxtpakten.”

The Swedish government did not mention Article III-199 of the Constitution specifically, although the national central bank (Sveriges Riksbank) participates in the General Council of the European Central Bank.

***

Finland

In Finland, the government’s ratification bill, Hallituksen esitys Eduskunnalle Euroopan perustuslaista tehdyn sopimuksen hyväksymisestä ja laiksi sen lainsäädännön alaan kuuluvien määräysten voimaansaattamisesta (HE 67/2006 vp), mentioned Article III-199 of the Constitution on page 185. The government remarked on the essential similarity of Article III-199 with Article 123(3) TEC and Article 117(2) TEC save for technical adjustments. The Finnish government mentioned that Article III-199 applies to the states, which have not yet adopted the euro:


”III-199 artikla vastaa asiasisällöltään SEY 123 artiklan kolmatta kohtaa sekä SEY 117 artiklan toista kohtaa teknisiä muutoksia lukuun ottamatta. III-199 artikla koskee Euroopan keskuspankin yleisneuvostoa sekä Euroopan keskuspankin tehtäviä niihin valtioihin liittyen, jotka eivät ole vielä ottaneet euroa käyttöön.”


***


Original Lisbon Treaty

In Article 2, point 103, of the original Treaty of Lisbon (ToL) the intergovernmental conference (IGC 2007) managed to adopt the substance of the Convention and Constitution proposals, but the amendments were inserted in the ‘usual’, i.e. unreadable manner adopted by the IGC 2007 (OJ 17.12.2007 C 306/79).

This is the wording the EU citizens were offered until the belated publication of the consolidated versions of the Lisbon Treaty:
103) Article 118 shall be repealed. A new Article 118a shall be inserted as follows:

(a) paragraph 1 thereof shall take over the text of Article 123(3); the words ‘of this Treaty’ shall be deleted;

(b) paragraph 2 thereof shall take over the text of the first five indents of Article 117(2); the five indents shall be amended as set out below and shall be preceded by the following introductory words:

‘If and as long as there are Member States with a derogation, the European Central Bank shall, as regards those Member States:’

(i) in the third indent, the words ‘European Monetary System’ shall be replaced by ‘exchange-rate mechanism’;

(ii) the fifth indent shall be replaced by the following:

‘— carry out the former tasks of the European Monetary Cooperation Fund which had subsequently been taken over by the European Monetary Institute.’.


***

Renumbering

The Treaty on the Functioning of the European Union (TFEU) table of equivalences confirms that the new Article 118a TFEU (ToL) in the original Treaty of Lisbon was to be renumbered Article 141 TFEU in the consolidated version, under the title ‘Economic and monetary policy’, renumbered Title VIII, and in the renumbered Chapter 5 ‘Transitional provisions’ (OJ 17.12.2007 C 306/215).

(In the consolidated version of the Lisbon Treaty, OJ 9.5.2008 C 115, the Tables of equivalences start on page 361, but the ToL numbers have been omitted.)

***

Consolidated Lisbon Treaty: TFEU

A readable Article 141 of the Treaty on the Functioning of the European Union (TFEU) is found in 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, OJ 9.5.2008 C 115/110:

Part Three Union policies and internal actions

Title VIII Economic and monetary policy

Chapter 5 Transitional provisions

Article 141 TFEU
(ex Articles 123(3) and 117(2) first five indents, TEC)

1. If and as long as there are Member States with a derogation, and without prejudice to Article 129(1), the General Council of the European Central Bank referred to in Article 44 of the Statute of the ESCB and of the ECB shall be constituted as a third decision-making body of the European Central Bank.

2. If and as long as there are Member States with a derogation, the European Central Bank shall, as regards those Member States:

— strengthen cooperation between the national central banks,

— strengthen the coordination of the monetary policies of the Member States, with the aim of ensuring price stability,

— monitor the functioning of the exchange-rate mechanism,

— hold consultations concerning issues falling within the competence of the national central banks and affecting the stability of financial institutions and markets,

— carry out the former tasks of the European Monetary Cooperation Fund which had subsequently been taken over by the European Monetary Institute.

***

ESCB Statute ─ transitional provisions

In the consolidated versions of the Lisbon Treaty, the Protocol (No 4) on the Statute of the European System of Central Banks and of the European Central Banks sets out the transitional EMU provisions in more detail in Chapter IX Transitional and other provisions for the ESCB (OJ 9.5.2008 C 115/247─250):

CHAPTER IX
TRANSITIONAL AND OTHER PROVISIONS FOR THE ESCB

Article 42 (ex Article 43)
General provisions

42.1. A derogation as referred to in Article 139 of the Treaty on the Functioning of the European Union shall entail that the following Articles of this Statute shall not confer any rights or impose any obligations on the Member State concerned: 3, 6, 9.2, 12.1, 14.3, 16, 18, 19, 20, 22, 23, 26.2, 27, 30, 31, 32, 33, 34, and 49.

42.2. The central banks of Member States with a derogation as specified in Article 139(1) of the Treaty on the Functioning of the European Union shall retain their powers in the field of monetary policy according to national law.

42.3. In accordance with Article 139 of the Treaty on the Functioning of the European Union, ‘Member States’ shall be read as ‘Member States whose currency is the euro’ in the following Articles of this Statute: 3, 11.2 and 19.

42.4. ‘National central banks’ shall be read as ‘central banks of Member States whose currency is the euro’ in the following Articles of this Statute: 9.2, 10.2, 10.3, 12.1, 16, 17, 18, 22, 23, 27, 30, 31, 32, 33.2 and 49.

42.5. ‘Shareholders’ shall be read as ‘central banks of Member States whose currency is the euro’ in Articles 10.3 and 33.1.

42.6. ‘Subscribed capital of the ECB’ shall be read as ‘capital of the ECB subscribed by the central banks of Member States whose currency is the euro’ in Articles 10.3 and 30.2.


Article 43 (ex Article 44)
Transitional tasks of the ECB

The ECB shall take over the former tasks of the EMI referred to in Article 141(2) of the Treaty on the Functioning of the European Union which, because of the derogations of one or more Member States, still have to be performed after the introduction of the euro.

The ECB shall give advice in the preparations for the abrogation of the derogations specified in Article 140 of the Treaty on the Functioning of the European Union.


Article 44 (ex Article 45)
The General Council of the ECB

44.1. Without prejudice to Article 129(3) of the Treaty on the Functioning of the European Union, the General Council shall be constituted as a third decision-making body of the ECB.

44.2. The General Council shall comprise the President and Vice-President of the ECB and the Governors of the national central banks. The other members of the Executive Board may participate, without having the right to vote, in meetings of the General Council.

44.3. The responsibilities of the General Council are listed in full in Article 46 of this Statute.


Article 45 (ex Article 46)
Rules of Procedure of the General Council

45.1. The President or, in his absence, the Vice-President of the ECB shall chair the General Council of the ECB.

45.2. The President of the Council and a Member of the Commission may participate, without having the right to vote, in meetings of the General Council.

45.3. The President shall prepare the meetings of the General Council.

45.4. By way of derogation from Article 12.3, the General Council shall adopt its Rules of Procedure.

45.5. The Secretariat of the General Council shall be provided by the ECB.

Article 46 (ex Article 47)
Responsibilities of the General Council

46.1. The General Council shall:

— perform the tasks referred to in Article 43;

— contribute to the advisory functions referred to in Articles 4 and 25.1.

46.2. The General Council shall contribute to:

— the collection of statistical information as referred to in Article 5;

— the reporting activities of the ECB as referred to in Article 15;

— the establishment of the necessary rules for the application of Article 26 as referred to in Article 26.4;

— the taking of all other measures necessary for the application of Article 29 as referred to in Article 29.4;

— the laying down of the conditions of employment of the staff of the ECB as referred to in Article 36.

46.3. The General Council shall contribute to the necessary preparations for irrevocably fixing the exchange rates of the currencies of Member States with a derogation against the euro as referred to in Article 140(3) of the Treaty on the Functioning of the European Union.

46.4. The General Council shall be informed by the President of the ECB of decisions of the Governing Council.


Article 47 (ex Article 48)
Transitional provisions for the capital of the ECB

In accordance with Article 29.1, each national central bank shall be assigned a weighting in the key for subscription of the ECB's capital. By way of derogation from Article 28.3, central banks of Member States with a derogation shall not pay up their subscribed capital unless the General Council, acting by a majority representing at least two thirds of the subscribed capital of the ECB and at least half of the shareholders, decides that a minimal percentage has to be paid up as a contribution to the operational costs of the ECB.


Article 48 (ex Article 49)
Deferred payment of capital, reserves and provisions of the ECB

48.1. The central bank of a Member State whose derogation has been abrogated shall pay up its subscribed share of the capital of the ECB to the same extent as the central banks of other Member States without a derogation, and shall transfer to the ECB foreign reserve assets in accordance with Article 30.1. The sum to be transferred shall be determined by multiplying the euro value at current exchange rates of the foreign reserve assets which have already been transferred to the ECB in accordance with Article 30.1, by the ratio between the number of shares subscribed by the national central bank concerned and the number of shares already paid up by the other national central banks.

48.2. In addition to the payment to be made in accordance with Article 48.1, the central bank concerned shall contribute to the reserves of the ECB, to those provisions equivalent to reserves, and to the amount still to be appropriated to the reserves and provisions corresponding to the balance of the profit and loss account as at 31 December of the year prior to the abrogation of the derogation. The sum to be contributed shall be determined by multiplying the amount of the reserves, as defined above and as stated in the approved balance sheet of the ECB, by the ratio between the number of shares subscribed by the central bank concerned and the number of shares already paid up by the other central banks.

48.3. Upon one or more countries becoming Member States and their respective national central banks becoming part of the ESCB, the subscribed capital of the ECB and the limit on the amount of foreign reserve assets that may be transferred to the ECB shall be automatically increased. The increase shall be determined by multiplying the respective amounts then prevailing by the ratio, within the expanded capital key, between the weighting of the entering national central banks concerned and the weighting of the national central banks already members of the ESCB. Each national central bank's weighting in the capital key shall be calculated by analogy with Article 29.1 and in compliance with Article 29.2. The reference periods to be used for the statistical data shall be identical to those applied for the latest quinquennial adjustment of the weightings under Article 29.3.


Article 49 (ex Article 52)
Exchange of banknotes in the currencies of the Member States

Following the irrevocable fixing of exchange rates in accordance with Article 140 of the Treaty on the Functioning of the European Union, the Governing Council shall take the necessary measures to ensure that banknotes denominated in currencies with irrevocably fixed exchange rates are exchanged by the national central banks at their respective par values.


Article 50 (ex Article 53)
Applicability of the transitional provisions

If and as long as there are Member States with a derogation, Articles 42 to 47 shall be applicable.

***

Sweden

Even if Sweden is one of the EU member states with a derogation, the most artificial one at that, I found nothing about Article 118a TFEU (ToL) in the Lisbon Treaty ratification bill of the Swedish government, Regeringens proposition 2007/08:168 Lissabonfördraget (3 July 2008).

Have they confounded the properties of EMU, the economic and monetary union, with those of emu, the bird?


***

Priollaud and Siritzky

In ‘Le traité de Lisbonne ; Commentaire, article par article, des nouveaux traités européens (TUE et TFUE)’ (La Documentation Française, 2008), François-Xavier Priollaud and David Siritzky present the Lisbon Treaty provisions of Chapter 5 (Dispositions transitoires) on page 260 to 261. Their characterization of Articles 141 to 144 TFEU is succinct:

« Les art. 141 à 144 TFUE comprennent les dispositions applicables aux États membres faisant l’objet d’une dérogation, sans changement notable. »

***

United Kingdom FCO

‘A comparative table of the current EC and EU treaties as amended by the Treaty of Lisbon (Cm 7311, 21 January 2008) offers the following comment on Article 141 TFEU (on page 13):

“Draws on and updates Articles 123(3) and 117(2) TEC.”

***

UK House of Commons Library

The UK House of Commons Library presented the amending treaty in ‘The Treaty of Lisbon: amendments to the Treaty establishing the European Communities’ (Research paper 07/86, 6 December 2007. There was a short explanation of Article 118a TFEU (ToL), on page 64:

“A new Article 118a (Constitution Article III-199) updates present Articles 117(2) and 123(3), providing for Member States with a derogation from EMU the institutional machinery (including the European Monetary Institute and the General Council of the ECB) to monitor their progress towards the adoption of the euro.”


***

Ironies

One of the ironies uncovered during this research was that the government of the EU member state most peculiarly affected by the transitional EMU provisions, i.e. Sweden, had nothing to say about the General Council of the European Central Bank in voluminous legislative materials.

Another irony is that the Lisbon Treaty, although not in force, is sometimes clearer and more up-to-date in its consolidated versions than the existing treaties, even where there are no ‘institutional innovations’ to speak of.

In other words, it is advisable to use the Treaty of Lisbon and commentaries on it as references, even if you study the EU treaties in force.



Ralf Grahn

EU TFEU: Competition transition provision

The transitional provision on competition rules seems to illustrate the institutional focus of the treaty reform aspirations during the last decade. The EU Treaty of Lisbon makes technical adjustments, without taking notice of the relevance or irrelevance of most provisions concerning the internal policy areas.

If the Treaty of Lisbon enters into force, there might be an opening to modernise the Treaty on the Functioning of the European Union (TFEU).


***

Article 104 of the Treaty on the Functioning of the European Union (TFEU) is found in the consolidated version of the Treaty on European Union and the Treaty on the Functioning of the European Union, published in the Official Journal of the European Union, OJ 9.5.2008 C 115/90:

Part Three ‘Policies and internal actions of the Union’

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

Chapter 1 Rules on competition

Section 1 Rules applying to undertakings

Article 104 TFEU
(ex Article 84 TEC)

Until the entry into force of the provisions adopted in pursuance of Article 103, the authorities in Member States shall rule on the admissibility of agreements, decisions and concerted practices and on abuse of a dominant position in the internal market in accordance with the law of their country and with the provisions of Article 101, in particular paragraph 3, and of Article 102.

***

In Article 2, point 75 of the Treaty of Lisbon (ToL) the intergovernmental conference (IGC 2007) laid out the specific amendments to Article 80 TEC and point 76 amended Article 85 TEC. Thus, no specific amendments were made to Article 84 TEC (OJ 17.12.2007 C 306/68).

***

The TFEU table of equivalences tells us that Article 84 TEC first became Article 84 TFEU (ToL) in the original Treaty of LIsbon, but later renumbered Article 104 TFEU in the consolidated version (OJ 17.12.2007 C 306/211).

***

The current Article 84 of the Treaty establishing the European Community (TEC) is found under Title VI ‘Common rules on competition, taxation and approximation of laws’, Chapter 1 ‘Rules on competition’, Section 1 ‘Rules applying to undertakings’, in the latest consolidated version of the treaties in force (OJ 29.12.2006 C 321 E/75).

In Article 104 TFEU the words ‘common market’ were replaced by ‘internal market’ in accordance with the Article 2 of the Treaty of Lisbon, horizontal amendment 2(g). Cf. OJ 17.12.2007 C 306/41..

In addition, the Articles referred to were renumbered in the amending treaty. For ease of use, the current Article 84 TEC is reproduced here in full:

Article 84 TEC

Until the entry into force of the provisions adopted in pursuance of Article 83, the authorities in Member States shall rule on the admissibility of agreements, decisions and concerted practices and on abuse of a dominant position in the common market in accordance with the law of their country and with the provisions of Article 81, in particular paragraph 3, and of Article 82.

***

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

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

The draft Treaty establishing a Constitution for Europe opted for the term ‘internal market’ and Article III-53 defined the legal instruments in the field of competition as ‘European regulations’. Naturally, the Articles referred to were numbered differently. Otherwise the rewording was minimal. In case someone wants to study the draft provisions more closely, the text looked like this (OJ 18.7.2003 C 169/36):

Article III-53 Draft Constitution

Until the entry into force of the European regulations adopted pursuant to Article III-52, the authorities in Member States shall rule on the admissibility of agreements, decisions and concerted practices and on abuse of a dominant position in the internal market in accordance with their internal law and Articles III-50, in particular paragraph 3, and Article III-51.

***

The location of Article III-164 of the Treaty establishing a Constitution for Europe was the same as for the corresponding provision of the draft (OJ 16.12.2004 C 310/70).

The term ‘internal law’ became ‘national law’ and the Articles referred to were numbered differently:

Article III-164 Constitution

Until the entry into force of the European regulations adopted pursuant to Article III-163, the authorities in Member States shall rule on the admissibility of agreements, decisions and concerted practices and on abuse of a dominant position in the internal market in accordance with their national law and Article III-161, in particular paragraph 3, and Article III-162.

***

We have seen that Article 104 TFEU, content to make only horizontal and technical adjustments, is almost exactly the same as the current Article 84 TEC. Thus, instead of legal instruments with distinct names, the provision refers to ‘the provisions adopted in pursuance of Article 103’.

***


What has been said about Article 104 TFEU?


United Kingdom

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

Peers highlighted the amendment to Article 84 TEC and TFEU (ToL), to be renumbered Article 104 TFEU in the consolidated version, without comment (page 25).

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

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

***

The Foreign and Commonwealth Office (FCO) offers a convenient source of brief annotations on Lisbon Treaty amendments in ‘A comparative table of the current EC and EU treaties as amended by the Treaty of Lisbon’ (Command Paper 7311, published 21 January 2008). It offers the following comment on Article 104 TFEU, Article 84 TFEU (ToL) in the original Lisbon Treaty (page 11):

“Unchanged from Article 84 TEC.”

The FCO comparative table is available at:

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

***

The UK House of Commons Library Research Paper 07/86 ‘The Treaty of Lisbon: amendments to the Treaty establishing the European Community’ (published 6 December 2007) discussed competition on pages 57 to 60. It commented on Articles 81 and 82 as well as Article 85 TEC and ToL on page 58, but Article 84 TEC and ToL drew no comment.

The Library Research Paper 07/86 is available at:

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

***

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

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

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

As we see, Article 104 TFEU (Article 84 TEC and ToL) was not mentioned.

The report is accessible at:

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

***

Sweden

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

On pages 265 to 266 the consultation paper explains the amendments to the competition rules (Konkurrensregler), but there are no specific comments on Article 84 TFEU (ToL).

The consultation paper ’Lissabonfördraget’ is available at:

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

***

Finland

The Finnish ratification bill, ‘Hallituksen esitys Eduskunnalle Euroopan unionista tehdyn sopimuksen ja Euroopan yhteisön perustamissopimuksen muuttamisesta tehdyn Lissabonin sopimuksen hyväksymisestä ja laiksi sen lainsäädännön alaan kuuluvien määräysten voimaansaattamisesta’ (HE 23/2008 vp), includes only a short comment on the unchanged nature of Article 84 TFEU (ToL), renumbered Article 104 TFEU (on page 207):

”84 artiklaa (uusi 104 artikla), joka koskee 83 artiklan nojalla annettujen asetusten ja direktiivien täytäntöönpanoa jäsenvaltioissa, ei muuteta.”

The Finnish ratification bill is available at:

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

The Swedish language version of the ratification bill ‘Regeringens proposition till Riksdagen med förslag om godkännande av Lissabonfördraget om ändring av fördraget om Europeiska unionen och fördraget om upprättandet av Europeiska gemenskapen och till lag om sättande i kraft av de bestämmelser i fördraget som hör till området för lagstiftningen’ (RP 23/2008 rd), offers the same brief observation about Article 84 TFEU (ToL), the future Article 104 TFEU, on page 210:

”Artikel 84 (blivande artikel 104), som gäller genomförandet av förordningar och direktiv som antagits med stöd av artikel 83, ändras inte.”

The ratification bill in Swedish can be accessed at:

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

***

European Community (European Union) competition law and policy is a developed area, with treaty provisions, secondary legislation, supplementing guidelines and a significant body of case law.

Today, areas not covered by EC law seem marginal or inexistent, especially after Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (Text with EEA relevance), as amended by Regulations No 411/2004 and 1419/2006:

Council Regulation (EC) No 411/2004 of 26 February 2004 repealing Regulation (EEC) No 3975/87 and amending Regulations (EEC) No 3976/87 and (EC) No 1/2003, in connection with air transport between the Community and third countries (Text with EEA relevance)

Council Regulation (EC) No 1419/2006 of 25 September 2006 repealing Regulation (EEC) No 4056/86 laying down detailed rules for the application of Articles 85 and 86 of the Treaty to maritime transport, and amending Regulation (EC) No 1/2003 as regards the extension of its scope to include cabotage and international tramp services (Text with EEA relevance)

For convenience, see the consolidated version of Regulation 1/2003:
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CONSLEG:2003R0001:20061018:EN:PDF

In addition, we take note of the Article 3(1)(b) TFEU, on the future competition law of the European Union:

1. The Union shall have exclusive competence in the following areas:

---
(b) the establishing of the competition rules necessary for the functioning of the internal market;
---

If the Treaty of Lisbon enters into force, a reform of the policy areas in the EU treaties, especially the TFEU, seems to be called for, if only to rid the treaties of more or less redundant provisions.


Ralf Grahn