Why is Europe falling behind? Look at EU patent

The governments of the EU member states meet in the Council of the European Union, Monday to Tuesday (11 to 12 October 2010) in Luxembourg.

Yes, even when the Council presidency is in Belgian hands (Brussels), the October Council meetings are held in the Grand Duchy.



Internal market



The Council configuration known as Competitiveness (Internal Market, Industry, Research and Space) has the following internal market items on its agenda:

– Proposal for a Council Regulation on the translation arrangements for the European Union patent
– Political orientation
Public deliberation



– Functioning of the internal market

(a) Communication from the Commission: Single market delivering smart sustainable and inclusive economic growth
– Presentation by the Commission
– Exchange of views
Public debate

(b) Report from the Commission on monitoring the retail market
– Progress report

You can follow press conferences and public deliberations by video streaming, courtesy of the audiovisual services of the Council.




EU Patent


If you want to understand why Europe is falling behind, you can study the neverending(?) history of the future Community Patent, nowadays the EU Patent, with the Commission’s latest proposal for translation arrangements (press release 1 July 2010, IP/10/870) and Frequently Asked Questions (MEMO/10/291).

The official Commission communication is:




Proposal for a Council Regulation (EU) on the translation arrangements for the European Union patent; Brussels, 30.6.2010 COM(2010) 350 final; consultation procedure2010/0198 (CNS)



Around the time of the informal meeting of competitiveness ministers (internal market) on 29 to 30 September, EurActiv reported on the efforts of the Belgian EU Council presidency to find a compromise in the battle about the language regime for the EU patent, and suggested that the deadlock may lead to the launch of enhanced cooperation between a group of member states. Nikki Tate in the Financial Times essentially had the same story.





Europolitics presents the state of play (= blockade) between the member states (7 October 2010), as does Simon Taylor in the European Voice (7 October 2010).



Legal: Unanimity for language regime


In the Lisbon Treaty the member states were able to agree on the ordinary legislative procedure for European intellectual property rights, but unable to include the language requirements, which need unanimity.

The member states failed then and will probably fail again, leaving European businesses with ten times the costs of patent protection in the USA.

The relevant provision is Article 118 of the Treaty on the Functioning of the European Union, with the language regime in the second paragraph (OJEU 30.3.2010 C 83/96):

Article 118 TFEU

In the context of the establishment and functioning of the internal market, the European Parliament and the Council, acting in accordance with the ordinary legislative procedure, shall establish measures for the creation of European intellectual property rights to provide uniform protection of intellectual property rights throughout the Union and for the setting up of centralised Union-wide authorisation, coordination and supervision arrangements.

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

Sweden



Ewa Björling, who continues as trade minister in Fredrik Reinfeldt’s new Swedish government appointed 5 October 2010, says that Sweden supports the three-language regime proposed by the Commission (English, German, French).

On the same page there is a link to the customary annotated agenda (kommenterad dagordning; in doc form), posted yesterday. The document states that two member states are opposed to the Commission proposal, but diplomatically it does not name Italy and Spain.

If the Council fails to reach unanimity, Sweden is willing to initiate enhanced cooperation for a working language regime.



Denmark



The Europe Committee of the Danish Parliament (Folketingets Europaudvalg) offers a memorandum on the issues for the Competitiveness Council (with the EU patent language regime from page 8).

It recalls the Commission’s original proposal (for a then Community patent) in 2000 and the negotiation history, and notes the unanimity requirement in Article 118(2) TFEU. A unanimous decision on the language arrangements is needed for the political agreement on the rest of European patent protection, negotiated during the Swedish EU Council presidency, to enter into force.

Provisionally, Denmark supports a possible compromise based on a restricted language regime, but the memorandum notes that the Council presidency and the Commission have indicated starting the process towards enhanced cooperation in case of failure.



Unanimity

The EU patent is an example of ‘freely cooperating, sovereign nation states’, and European businesses continue to foot the bill until the deadlock is broken.




Ralf Grahn




P.S. I have decided to give my “domestic” Grahnlaw blog a new twist. Instead of, or at least in addition to cross-posting EU entries in Finnish from Eurooppaoikeus, I intend to blog in Finnish, Swedish and English about entrepreneurship, work and expats in Finland, giving the blog a distinct identity.

EU against tax fraud

The work programme of the Spanish presidency of the Council of the European Union has described as unfocused and full of good intentions, but the part concerning taxes, under the ECOFIN Council, is quite concrete: Taxation: The fight against fraud (pages 5 to 7).

It is worth quoting as a background note on EU aims in tax policy, both internally and with regard to third countries:

The meeting of the G-20 held in London in April 2009 and the efforts made by the OECD in order to increase the transparency of tax systems, with particular attention being paid to tax havens, have given a renewed political momentum to the fight against tax fraud within a framework that the European Union has defined as “good governance in tax matters”. In this context, achieving international transparency raises two kinds of challenges for the European Union: internal cooperation in the relations between Member States, and increasing transparency in foreign relations.

The Spanish Presidency will thus pay special attention to the cooperation of Member States in the fight against tax fraud. These efforts will be made in the fields of both direct and indirect taxation.

In the field of direct taxation the priority will be to work on three Directive proposals linked to the fight against tax evasion and to the achievement of appropriate rules governing transparency. The Savings Taxation Directive will expand its scope, both objectively (incorporating a larger number of taxable incomes), and subjectively (incorporating certain entities and legal instruments whose effective beneficiaries are natural persons), thus contributing towards increased efficiency and fairness of taxation on savings. The Directive on Administrative Cooperation will imply the adoption by all Member States of the OECD standards for the exchange of information and, therefore, the end of bank secrecy in the European Union, and it will impose a new general framework on the exchange of information on taxation that will allow the adaptation of the current regulation to the kind of automatic information we need, so that a modern efficient tool will be available in the fight against fraud. Finally, the Directive on Mutual Assistance for Tax Recovery, will improve the tools for recovery of debts that require assistance of other Member States, if either the debtors or their assets are within these states.

If these legislatory proposals are to be effective, it is also necessary for the EU to reach anti-fraud agreements with third-countries (a political agreement with Liechtenstein will be used as a model for negotiations with Andorra, Monaco, San Marino, and Switzerland). During the Spanish Presidency, we will try to achieve the signing of agreements that comply with OECD standards on transparency and information exchange.

Finally, within the field of coordination in direct taxation, the Spanish Presidency will seek to achieve a commitment on anti-abuse clauses. This will be a joint effort by Member States on matters of direct taxation in which problems may appear as a consequence of the fundamental rights contemplated in the Treaty of the EU and of the satisfactory operation of the internal market, and which may also put an end to the infringement procedures opened by the Commission. Likewise, a report will be presented to the Council on follow-up work on the application of the Code of Conduct for Business Taxation corresponding to the period of the Spanish Presidency (Report of the Council). This code of conduct refers to the suppression of tax measures that have or may have a significant harmful influence on business activities within the Union because of the tax competition they create. During the Presidency, the subgroup working on the Code of Conduct will continue its task. This subgroup is in charge of debating anti-abuse issues, such as those related with outbound and inbound dividends.

Likewise, the Spanish Presidency will boost administrative cooperation in the fight against fraud in the field of indirect taxation. In order to do so it will strive to promote the work to make EUROFISC a decentralized network for the exchange of information on VAT fraud among Member States. The EUROFISC network is based on an early warning mechanism and a multilateral risk analysis platform. Moreover, the Presidency will work on the new proposal of a Directive on VAT electronic invoicing rules, an important element of administrative simplification and cost reduction for businesses.

Likewise, the Spanish Presidency will strengthen administrative cooperation in the field of Excises, promoting the implementation of the Excise Movement Control System (EMCS), a new computerised system for monitoring movements of excise goods by electronic means, through the interconnection of customs agencies of various Member States and operators.


Towards a more efficient taxation system

The Spanish Presidency will also ensure that fiscal coordination leads to a more efficient taxation system in various fields. A well designed taxation system can make a decisive contribution to the promotion of energy efficiency, which is indispensable if sustainable long-term growth is to be achieved. The Spanish Presidency will thus give precedence to the proposals of Directives pursuing energy efficiency objectives. It is therefore important to make progress in the modification of the Directive establishing a new framework for the taxation of energy products on the basis of environmental criteria. In this context, during the Spanish Presidency the proposal for the modification of the Directive on the taxation of energy products will be addressed.

As for the VAT, work will be encouraged with respect to the interpretation of new rules of location, together with the taxation of financial services and insurance, and the Special Scheme for Travel Agencies.

Finally, in order for public finances to have a revitalising effect on the economy, it is necessary to take into account the Community budget rules, an essential element of the Union’s daily activities. The entry into force of the Lisbon Treaty requires the modification of some budget rules.

Firstly, the Spanish Presidency will push forward the negotiation of the Financial Regulation Review proposal, which will be presented by the Commission during this semester. This regulation includes the rules on the drafting, approval, execution, and monitoring of the European Union budget, and Spain’s objective will be to take a closer look at simplification, transparency, and rigour in the execution of the budget.

Secondly, the Spanish Presidency will promote the necessary work in order to adapt to the Lisbon Treaty, as soon as possible, the rules applicable to the Union budget.

In short, the next six months will pose significant challenges to the EU in economic and financial issues. The ECOFIN therefore has a considerable task ahead of it in order to successfully exit from the unprecedented economic crisis and at the same time lay the foundations of sustainable and stable growth for the future and of a more social, more competitive, and more environmentally committed Europe.

However, for the EU to move from aims – even widely supported ones – to results in the area of taxation is still a daunting task due to unanimity rules, despite the Commission booklet Achievements in the areas of taxation and customs 2004-2009, published today (8 February 2010; 75 pages including annexed speeches, from page 20).





Ralf Grahn







P.S. The Pirate Party challenges the existing order concerning intellectual property, especially copyright, and attempts to limit the freedoms of Internet users.

In the Swedish political blogosphere the Pirate Party has become the most visible political party, and in the June 2009 European Parliament elections the PP secured two MEPs, although the second one has to wait for the question of the 18 “phantom MEPs” to be resolved before she can officially take up her duties.

Henrik Alexandersson is a prolific blogger about Pirate Party and libertarian causes, from his position as assistant to the Pirate MEP Christian Engström (who blogs in Swedish and English).

Henrik Alexandersson.se (in Swedish) is listed on multilingual Bloggingportal.eu, which by now has grown to 532 great Euroblogs.

Bloggingportal.eu is your useful one-stop-shop for fact, opinion and gossip on EU affairs, i.a. politics, more than thirty policy areas, communication, economics, finance, business, civil society and law.

At the same time Euroblogs are an agreeable way to brush up one’s skills in foreign languages.

If you are interested in the EU or the euroblogosphere, you can also subscribe to the RSS feed for new blog posts appearing on Bloggingportal.eu.

By the way, I also discuss European issuesin Finnish on Eurooppaoikeus and in Swedish on Grahnblawg. At this point in time, my main themes are the European knowledge society, including data protection and intellectual property, the internal market, and the relations between the EU and Switzerland, where banking secrecy and taxation are among the topical issues.

European Union: Council meetings (VI) National parliaments

The complexity of the European Union appears, when devising the (provisional) agendas of the Council meetings. Not only the national governments, but the national parliaments, require their periods of grace before certain items can be placed on the agenda.

Legislative procedures are time-consuming.


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Protocol on national parliaments


Protocol (No 9) on the role of national parliaments in the European Union lays down a system of scrutiny for the national parliaments (excerpt):


I. Information for national parliaments of Member States

1. All Commission consultation documents (green and white papers and communications) shall be promptly forwarded to national parliaments of the Member States.

2. Commission proposals for legislation as defined by the Council in accordance with Article 207(3) of the Treaty establishing the European Community, shall be made available in good time so that the government of each Member State may ensure that its own national parliament receives them as appropriate.

3. A six-week period shall elapse between a legislative proposal or a proposal for a measure to be adopted under Title VI of the Treaty on European Union being made available in all languages to the European Parliament and the Council by the Commission and the date when it is placed on a Council agenda for decision either for the adoption of an act or for adoption of a common position pursuant to Article 251 or 252 of the Treaty establishing the European Community, subject to exceptions on grounds of urgency, the reasons for which shall be stated in the act or common position.


***

In other words, the national parliaments dispose of a six week period to make up their mind about a legislative proposal or a proposal relating to police and judicial cooperation in criminal matters.

Under the Lisbon Treaty, this period would be extended to eight weeks (Protocol No 1; Article 4).


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Council’s Rules of Procedure


The Council agenda has to observe this period. Only a unanimous decision on the grounds of urgency allows for an exception to be made:



Article 3(3) Council’s Rules of Procedure


3. Items relating to the adoption of an act or a common position on a legislative proposal or a proposal for a measure to be adopted under Title VI of the Treaty on European Union (hereinafter referred to as the EU Treaty) shall not be placed on the provisional agenda for a decision until the six-week period provided for in point 3 of the Protocol on the role of national parliaments in the European Union has elapsed.

The Council may unanimously derogate from the six-week period where the entry of an item is subject to the exception on grounds of urgency provided for in point 3 of that Protocol.




Ralf Grahn

EU: Special legislative procedure (V)

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

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

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


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Excessive deficit procedure

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

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


Article 126(4) TFEU

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

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

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


***

ECB and prudential supervision

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

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

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


Article 127(6) TFEU

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


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



Ralf Grahn

EU: Special legislative procedure (IV)

European politics on the never-never plan.

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

Enter Political Fudge.

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

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

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


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Indirect taxes

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


Article 113 TFEU
(ex Article 93 TEC)

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


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Harmonisation of taxes, free movement and workers’ rights


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

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

Unanimity and a special legislative procedure apply to the exceptions.


Article 115 TFEU
(ex Article 94 TEC)

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


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European intellectual property rights

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


Article 118 TFEU, second subparagraph

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


***

The European Union is as strong as its weakest link.



Ralf Grahn

EU: Special legislative procedure (III)

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

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

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

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

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

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

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


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



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External borders

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


Article 77(3) TFEU

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


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Family law

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


Article 81(3) TFEU

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

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

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


***

Cross-border crime

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


Article 83(2) TFEU

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


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European Public Prosecutor


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

Article 86(1) TFEU, first subparagraph


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


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Operational police cooperation

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

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


Article 87(3) TFEU

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

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

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

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


***

Police operations in another member state

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


Article 89 TFEU
(ex Article 32 TEU)

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


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


Ralf Grahn

EU: Special legislative procedure (II)

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

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

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

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

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


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Diplomatic and consular protection

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


Article 23 TFEU
(ex Article 20 TEC)

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

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


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EU citizenship rights

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



Article 25 TFEU, second paragraph

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


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Restricting capital movements

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


Article 64(3) TFEU


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


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


Ralf Grahn

EU: Special legislative procedure (I)

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

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

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


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Consolidated Lisbon Treaty

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


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Combating discrimination

Unanimity and a special legislative procedure for Council legislation:


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

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


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Free movement of persons

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


Article 21(3) TFEU

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


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Municipal elections

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


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

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


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European elections

Corresponding provisions apply to the European elections:


Article 22(2) TFEU

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


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



Ralf Grahn

EU Council tasks: Security & defence policy CSDP

The European Union’s common security and defence policy (CSDP) is an integral part of its common foreign and security policy (CFSP). At this stage of development, it is geared towards humanitarian, peace and crisis management missions drawing on both civilian and military assets (Petersberg tasks).

The Treaty of Lisbon envisions the progressive framing of a common Union defence policy, leading to a common defence.

The intergovernmental CSDP respects a) the ‘specific character’ of the security and defence policy of ‘certain member states’ (non-aligned, neutral) and b) the obligations of the vast majority which are NATO members.

We look at the Council’s CSDP tasks in the light of the Lisbon Treaty, with the relevant provisions located in the amended Treaty on European Union (TEU).


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Defining objectives

The Council of the European Union defines the objectives for the implementation of the CSDP, assisted by the European Defence Agency (EDA)(OJEU 9.5.2008 C 115):


Article 42(3) TEU


3. Member States shall make civilian and military capabilities available to the Union for the implementation of the common security and defence policy, to contribute to the objectives defined by the Council. Those Member States which together establish multinational forces may also make them available to the common security and defence policy.


Member States shall undertake progressively to improve their military capabilities. The Agency in the field of defence capabilities development, research, acquisition and armaments (hereinafter referred to as ‘the European Defence Agency’) shall identify operational requirements, shall promote measures to satisfy those requirements, shall contribute to identifying and, where appropriate, implementing any measure needed to strengthen the industrial and technological base of the defence sector, shall participate in defining a European capabilities and armaments policy, and shall assist the Council in evaluating the improvement of military capabilities.


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Unanimity

The CSDP decisions are adopted unanimously by the Council:


4. Decisions relating to the common security and defence policy, including those initiating a mission as referred to in this Article, shall be adopted by the Council acting unanimously on a proposal from the High Representative of the Union for Foreign Affairs and Security Policy or an initiative from a Member State. The High Representative may propose the use of both national resources and Union instruments, together with the Commission where appropriate.


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Delegation of tasks

The Council can delegate the execution of tasks (a mission) to a group of member states (Article 42(5) TEU), with the willing and able keeping the Council informed. If the decision needs to be changed, it is dealt with by the Council, as provided in Article 44 TEU.


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Implementation and scope

According to the second paragraph of Article 43 TEU, the Council adopts the decisions relating to the extended Petersberg tasks, listed in paragraph 1:


Article 43 TEU

1. The tasks referred to in Article 42(1), in the course of which the Union may use civilian and military means, shall include joint disarmament operations, humanitarian and rescue tasks, military advice and assistance tasks, conflict prevention and peace-keeping tasks, tasks of combat forces in crisis management, including peace-making and post-conflict stabilisation. All these tasks may contribute to the fight against terrorism, including by supporting third countries in combating terrorism in their territories.

2. The Council shall adopt decisions relating to the tasks referred to in paragraph 1, defining their objectives and scope and the general conditions for their implementation. The High Representative of the Union for Foreign Affairs and Security Policy, acting under the authority of the Council and in close and constant contact with the Political and Security Committee, shall ensure coordination of the civilian and military aspects of such tasks.


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European Defence Agency

The European Defence Agency (EDA) is intergovernmental, ‘subject to the authority of the Council’ (Article 45 TEU). The EDA’s statute, seat and operational rules are adopted by the Council by a qualified majority.


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Permanent structured cooperation

According to Article 46 TEU, the Council adopts, by qualified majority, the decision establishing permanent structured cooperation (akin to enhanced cooperation in other policy areas) between member states, which fulfil the criteria and made the commitments on military capabilities in accordance with Protocol No. 10.

Decisions concerning later entrants are decided by the participating states.

Permanent structured cooperation is one of the questions in need of preparatory work, public discussion and implementing decisions, if the Treaty of Lisbon enters into force.


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Council configurations

The current Council configuration, the General Affairs and External Relations Council (GAERC), already meets separately for its two main areas of activity. The Lisbon Treaty would separate the configurations, and the Foreign Affairs Council (FAC) would carry on with the whole of the European Union's external action, namely common foreign and security policy, European security and defence policy, foreign trade, development cooperation and humanitarian aid. (Cf. current Council’s Rules of Procedure and Lisbon Article 16(6) TEU.)


The Defence Ministers of the EU member states convene in connection with GAERC meetings and for separate informal meetings. The latest informal meeting was held in Prague on 12 to 13 March 2009.


The Council is assisted by the Political and Security Committee (known as PSC or COPS), which monitors the international situation, delivers opinions and can be authorised to direct crisis management operations (Article 38 TEU).


The European Union Military Committee (EUMC) is the highest military body set up within the Council. It is composed of the Chiefs of Defence of the Member States, who are regularly represented by their permanent military representatives. The EUMC provides the PSC with advice and recommendations on all military matters within the EU.

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European Parliament

Being on the sidelines of the intergovernmental CSDP does not prevent the European Parliament from showing a keen interest in The European Security Strategy and ESDP, as witnessed by the 19 February 2009 EP Resolution P6_TA-PROV(2009)0075, based on an own-initiative report by the Committee on Foreign Affairs:

http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+TA+P6-TA-2009-0075+0+DOC+XML+V0//EN

The European Parliament sees the need for a common defence policy in Europe requiring an integrated European Armed Force which consequently needs to be equipped with common weapon systems so as to guarantee commonality and interoperability.

In addition, the EP Resolution offers an updated overview on the latest proposals and current shortcomings of the EU’s security and defence policy.



Ralf Grahn

EU Council tasks: Foreign & security policy CFSP

Nationally elected ministers decide on the common foreign and security policy (CFSP) of the European Union in Brussels.

Currently the foreign ministers meet in the General Affairs and External Relations Council (GAERC), but if the Treaty of Lisbon enters into force, they would convene in the Foreign Affairs Council (FAC), while the coordination of Council activities would take place in the General Affairs Council (GAC).

We take a closer look at the CFSP tasks of the Council in the light of the Lisbon Treaty.


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Conduct of foreign policy

Unanimity rule


External action is a wide concept, covering all areas including the ones managed by the Commission. The CFSP (including the CSDP) is narrower and intergovernmental (but the Foreign Affairs Council deals with all aspects of external relations).

Roughly, the Lisbon Treaty splits the provisions on external relations in two. After principles common to external relations in general, the CFSP and the CSDP provision are laid down in the amended Treaty on European Union (TEU), and the rest of external relations are regulated in the Treaty on the Functioning of the European Union (common commercial policy, cooperation with third countries and humanitarian aid).

According to Article 24(1) of the Treaty on European Union (TEU), the EU's common foreign and security policy (CFSP) covers all areas of foreign policy and all questions relating to the Union's security, including the progressive framing of a common defence policy that might lead to a common defence (consolidated version of the Lisbon Treaty, published OJEU 9.5.2008 C 115).

The CFSP is subject to specific rules and procedures. It is defined and implemented by the European Council and the Council acting unanimously, except where the Treaties provide otherwise. The adoption of legislative acts is excluded, as is generally the jurisdiction of the Court of Justice of the European Union.

The intergovernmental character of the CFSP and the EU’s inability to “speak with one voice on the world scene” are enshrined in the basic unanimity rule, allowing even one dogged member state to paralyse the EU in key questions, despite the evocation of the principle of mutual political solidarity (paragraph 3).


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CFSP


Instead of dealing with the EU’s external action as a whole in the Treaty on the Functioning of the European Union, the intergovernmental conference (IGC 2007) broke the unity by keeping the CFSP and CSDP provisions in the Treaty on European Union.

Because of the specific character of the CFSP, Article 26 TEU reiterates the leading role of the European Council and the tasks of the Council in an area where the Commission and the European Parliament are on the sidelines.

The Council’s tasks are laid down in the second paragraph:


Article 26(2) TEU


2. The Council shall frame the common foreign and security policy and take the decisions necessary for defining and implementing it on the basis of the general guidelines and strategic lines defined by the European Council.

The Council and the High Representative of the Union for Foreign Affairs and Security Policy shall ensure the unity, consistency and effectiveness of action by the Union.


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European External Action Service


If the Treaty of Lisbon enters into force, the European External Action Service (EEAS) will be established by a Council decision. This is one of the more demanding implementing tasks with regard to the Lisbon Treaty, requiring preparation and public discussion (naturally based on an open preparatory stage, so far sadly lacking):


Article 27(3) TEU

3. In fulfilling his mandate, the High Representative shall be assisted by a European External Action Service. This service shall work in cooperation with the diplomatic services of the Member States and shall comprise officials from relevant departments of the General Secretariat of the Council and of the Commission as well as staff seconded from national diplomatic services of the Member States. The organisation and functioning of the European External Action Service shall be established by a decision of the Council. The Council shall act on a proposal from the High Representative after consulting the European Parliament and after obtaining the consent of the Commission.


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Operational action


At the operational level, the Council (FAC) makes the decisions, according to Article 28(1) TEU:

Article 28 TEU
(ex Article 14 TEU)

1. Where the international situation requires operational action by the Union, the Council shall adopt the necessary decisions. They shall lay down their objectives, scope, the means to be made available to the Union, if necessary their duration, and the conditions for their implementation.

If there is a change in circumstances having a substantial effect on a question subject to such a decision, the Council shall review the principles and objectives of that decision and take the necessary decisions.


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Particular matters


In addition to the operational action mentioned above, the Council may adopt decisions on a common approach to particular CFSP matters. If the Council is able to agree, the member states are supposed to act in accordance with the adopted approach:


Article 29 TEU
(ex Article 15 TEU)

The Council shall adopt decisions which shall define the approach of the Union to a particular matter of a geographical or thematic nature. Member States shall ensure that their national policies conform to the Union positions.


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CFSP initiatives and proposals

Whereas the Commission has a near monopoly in making formal proposals within the current ‘Community pillar’, the intergovernmental and political character of the CFSP is illustrated by the right of each member state to submit initiatives or proposals to the Council (besides the right of the High Representative):


Article 30(1) TEU
(ex Article 22 TEU)

1. Any Member State, the High Representative of the Union for Foreign Affairs and Security Policy, or the High Representative with the Commission's support, may refer any question relating to the common foreign and security policy to the Council and may submit to it initiatives or proposals as appropriate.


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Qualified abstention

Article 31(1) TEU repeats that CFSP decisions are generally taken unanimously by the European Council and the Council. According to the general voting rules, abstention does not prevent a decision from being taken, but the second subparagraph of Article 31(1) adds that a member state can make a formal declaration to the effect that it is not obliged to apply the decision (qualified abstention). It is expected not to act against the decision. This is described as a spirit of mutual solidarity. If the minority is sizeable, no decision is taken:


Article 31 TEU
(ex Article 23 TEU)

1. Decisions under this Chapter shall be taken by the European Council and the Council acting unanimously, except where this Chapter provides otherwise. The adoption of legislative acts shall be excluded.

When abstaining in a vote, any member of the Council may qualify its abstention by making a formal declaration under the present subparagraph. In that case, it shall not be obliged to apply the decision, but shall accept that the decision commits the Union. In a spirit of mutual solidarity, the Member State concerned shall refrain from any action likely to conflict with or impede Union action based on that decision and the other Member States shall respect its position. If the members of the Council qualifying their abstention in this way represent at least one third of the Member States comprising at least one third of the population of the Union, the decision shall not be adopted.


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Qualified majority


The main rule for CFSP decisions is unanimity, but there are exceptions. According to Article 31(2) TEU qualified majority voting (QMV) applies to questions where the European Council has laid down the guiding principles or asked for a detailed proposal. It applies also to implementing decisions and to appointing special representatives.

Despite these limitations, the Lisbon Treaty contains an “emergency brake”. Even one member state can prevent a vote. This leads to a mediation effort by the High Representative, but if this fails, the matter may be delegated upwards to the European Council for a unanimous decision:


Article 31(2) TEU


2. By derogation from the provisions of paragraph 1, the Council shall act by qualified majority:

— when adopting a decision defining a Union action or position on the basis of a decision of the European Council relating to the Union's strategic interests and objectives, as referred to in Article 22(1),

— when adopting a decision defining a Union action or position, on a proposal which the High Representative of the Union for Foreign Affairs and Security Policy has presented following a specific request from the European Council, made on its own initiative or that of the High Representative,

— when adopting any decision implementing a decision defining a Union action or position,

— when appointing a special representative in accordance with Article 33.

If a member of the Council declares that, for vital and stated reasons of national policy, it intends to oppose the adoption of a decision to be taken by qualified majority, a vote shall not be taken. The High Representative will, in close consultation with the Member State involved, search for a solution acceptable to it. If he does not succeed, the Council may, acting by a qualified majority, request that the matter be referred to the European Council for a decision by unanimity.


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Expanding QMV in CFSP

There is a cautious opening towards wider use of qualified majority voting in the Council with regard to the common foreign and security policy, but only by unanimous decision by the European Council:


Article 31(3) TEU

3. The European Council may unanimously adopt a decision stipulating that the Council shall act by a qualified majority in cases other than those referred to in paragraph 2.


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Further limits

Qualified majority voting is excluded for matters with military implications and even a unanimous European Council is unable to extend QMV to these questions:


Article 31(4) TEU

4. Paragraphs 2 and 3 shall not apply to decisions having military or defence implications.


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Procedural questions

Procedural questions are the only ones where the Council (FAC) can advance by “normal” majority decisions:


Article 31(5) TEU

5. For procedural questions, the Council shall act by a majority of its members.


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Consultation

The member states are supposed to consult each other in the European Council and the Council, leading to converging views and coordinated action:



Article 32 TEU, first subparagraph
(ex Article 16 TEU)

Member States shall consult one another within the European Council and the Council on any matter of foreign and security policy of general interest in order to determine a common approach. Before undertaking any action on the international scene or entering into any commitment which could affect the Union's interests, each Member State shall consult the others within the European Council or the Council. Member States shall ensure, through the convergence of their actions, that the Union is able to assert its interests and values on the international scene. Member States shall show mutual solidarity.


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Special Representative

The Council can appoint a special representative, on a proposal by the High Representative (Article 33 TEU).


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Personal data protection

The protection of personal data is one of the principles the European Union prides itself on, but in the area of the common foreign and security policy the member states’ governments do not want to be hampered by the rules laid down in Article 16 TFEU, including the movement of such data.

Therefore, in a treaty written by the member states, the Council adopts the rules in the CFSP area, without the need to co-legislate with the European Parliament:


Article 39 TEU

In accordance with Article 16 of the Treaty on the Functioning of the European Union and by way of derogation from paragraph 2 thereof, the Council shall adopt a decision laying down the rules relating to the protection of individuals with regard to the processing of personal data by the Member States when carrying out activities which fall within the scope of this Chapter, and the rules relating to the free movement of such data. Compliance with these rules shall be subject to the control of independent authorities.


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CFSP expenditure

Article 41 TEU lays down basic rules on the allocation of CFSP expenses, with various Council decisions, including some instances where the Council can unanimously deviate from the main rules.


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Hobbled Giant

The Lisbon Treaty preserves the unanimity rule (liberum veto), with minor exceptions, and the intergovernmental character of the common foreign and security policy. These principles constitute the “clay feet” of the European Union in world affairs.

With these constraints, the Council (FAC) ─ guided by the European Council ─ requires intensive efforts to formulate working common policies. The foreign ministers meet frequently, including informal meetings (Gymnich), to agree on the CFSP, perhaps even effective implementation.

Despite its shortcomings, the Lisbon Treaty would improve the chances of more consistency and coherence in EU foreign affairs. In this respect, non-conclusive treaty reform and ratification difficulties cause competing powers much joy.





Ralf Grahn

Lisbon Treaty & European Council: Consensus or unanimity?

The European Council primarily takes decisions which are politically (not legally) binding, such as Presidency Conclusions, declarations and guidelines. Its mode of operation can be seen as consensus seeking. Basically, the political texts can be watered down until consensus is reached.

One of the tasks of the new President of the European Council would be to facilitate cohesion and consensus within the European Council.

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Consensus

In the Treaty of Lisbon, Article 15(4) of the amended Treaty on European Union (TEU) presents the main rule for decision-making:


Article 15(4) (Lisbon Treaty)


4. Except where the Treaties provide otherwise, decisions of the European Council shall be taken by consensus.


(OJEU 9.5.2008 C 115/23)


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Consensus or unanimity?

Is there a real difference between consensus and unanimity? Unanimity may evoke feelings of a harsher requirement, but abstentions by members present in person or represented shall not prevent the adoption by the European Council of acts which require unanimity (Article 235(1) of the Treaty on the Functioning of the European Union; TFUE).

Consensus can seem softer, since it can generally denote both unanimity and ‘the judgment arrived at by most of those concerned’. But as far as I understand, consensus is interpreted as the absence of specific opposition, which makes it practically equal to the definition of unanimity above.

The Lisbon Treaty employs both terms in conjunction with the European Council.

My preliminary feeling is that the differences mainly concern nuances, with consensus seeking seen as a general approach to reach mutual understanding, whereas unanimity denotes more formal situations (acts), where explicit abstentions can pave the way for decisions.


People wiser than me have delved into these questions, so I am grateful for viewpoints from readers.

In the following posts we are going to look at how the terms consensus and unanimous (by unanimity) have been employed in the Lisbon Treaty. Are there obvious differences?


Ralf Grahn

EU Law: Concluding international agreements

The merger of the European Community into the European Union facilitates the conclusion of international agreements, which is reflected in the general procedure for concluding these agreements in the Treaty of Lisbon. The legitimacy of international agreements is enhanced by the strengthening of the role of the European Parliament, but. CFSP agreements and certain other agreements still require unanimous Council decisions and leave the EP to be consulted.



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Current treaty

Article 300 of the Treaty establishing the European Community provides for the procedure leading to the conclusion of international agreements between the EC and third countries or international organisations.

The Commission conducts the negotiations, but the Council decides on every major step from the opening of negotiations onward, as shown in the latest consolidated version of the treaties, published OJEU 29.12.2006 C 321 E/176–177:

Article 300 TEC

1. Where this Treaty provides for the conclusion of agreements between the Community and one or more States or international organisations, the Commission shall make recommendations to the Council, which shall authorise the Commission to open the necessary negotiations. The Commission shall conduct these negotiations in consultation with special committees appointed by the Council to assist it in this task and within the framework of such directives as the Council may issue to it.

In exercising the powers conferred upon it by this paragraph, the Council shall act by a qualified majority, except in the cases where the first subparagraph of paragraph 2 provides that the Council shall act unanimously.

2. Subject to the powers vested in the Commission in this field, the signing, which may be accompanied by a decision on provisional application before entry into force, and the conclusion of the agreements shall be decided on by the Council, acting by a qualified majority on a proposal from the Commission. The Council shall act unanimously when the agreement covers a field for which unanimity is required for the adoption of internal rules and for the agreements referred to in Article 310.

By way of derogation from the rules laid down in paragraph 3, the same procedures shall apply for a decision to suspend the application of an agreement, and for the purpose of establishing the positions to be adopted on behalf of the Community in a body set up by an agreement, when that body is called upon to adopt decisions having legal effects, with the exception of decisions supplementing or amending the institutional framework of the agreement.

The European Parliament shall be immediately and fully informed of any decision under this paragraph concerning the provisional application or the suspension of agreements, or the establishment of the Community position in a body set up by an agreement.

3. The Council shall conclude agreements after consulting the European Parliament, except for the agreements referred to in Article 133(3), including cases where the agreement covers a field for which the procedure referred to in Article 251 or that referred to in Article 252 is required for the adoption of internal rules. The European Parliament shall deliver its opinion within a time limit which the Council may lay down according to the urgency of the matter. In the absence of an opinion within that time limit, the Council may act.

By way of derogation from the previous subparagraph, agreements referred to in Article 310, other agreements establishing a specific institutional framework by organising cooperation procedures, agreements having important budgetary implications for the Community and agreements entailing amendment of an act adopted under the procedure referred to in Article 251 shall be concluded after the assent of the European Parliament has been obtained.

The Council and the European Parliament may, in an urgent situation, agree upon a time limit for the assent.

4. When concluding an agreement, the Council may, by way of derogation from paragraph 2, authorise the Commission to approve modifications on behalf of the Community where the agreement provides for them to be adopted by a simplified procedure or by a body set up by the agreement; it may attach specific conditions to such authorisation.

5. When the Council envisages concluding an agreement which calls for amendments to this Treaty, the amendments must first be adopted in accordance with the procedure laid down in Article 48 of the Treaty on European Union.

6. The European Parliament, the Council, the Commission or a Member State may obtain the opinion of the Court of Justice as to whether an agreement envisaged is compatible with the provisions of this Treaty. Where the opinion of the Court of Justice is adverse, the agreement may enter into force only in accordance with Article 48 of the Treaty on European Union.

7. Agreements concluded under the conditions set out in this Article shall be binding on the institutions of the Community and on Member States.


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The original Lisbon Treaty

Article 2, point 173 of the original Treaty of Lisbon inserted an Article 188n replacing Article 300 TEC, in OJEU 17.12.2007 C 306/97–98:

173) An Article 188 N shall be inserted, replacing Article 300:

[Text not repeated here]


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Consolidated Lisbon Treaty

If the Treaty of Lisbon enters into force, here is what the renumbered Article 218 TFEU would look like; consolidated version of the Treaty on the Functioning of the European Union, published OJEU 9.5.2008 C 115/144–146:


Article 218 TFEU
(ex Article 300 TEC)

1. Without prejudice to the specific provisions laid down in Article 207, agreements between the Union and third countries or international organisations shall be negotiated and concluded in accordance with the following procedure.

2. The Council shall authorise the opening of negotiations, adopt negotiating directives, authorise the signing of agreements and conclude them.

3. The Commission, or the High Representative of the Union for Foreign Affairs and Security Policy where the agreement envisaged relates exclusively or principally to the common foreign and security policy, shall submit recommendations to the Council, which shall adopt a decision authorising the opening of negotiations and, depending on the subject of the agreement envisaged, nominating the Union negotiator or the head of the Union's negotiating team.

4. The Council may address directives to the negotiator and designate a special committee in consultation with which the negotiations must be conducted.

5. The Council, on a proposal by the negotiator, shall adopt a decision authorising the signing of the agreement and, if necessary, its provisional application before entry into force.

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

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

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

(i) association agreements;

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

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

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

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

The European Parliament and the Council may, in an urgent situation, agree upon a time-limit for consent.

(b) after consulting the European Parliament in other cases. The European Parliament shall deliver its opinion within a time-limit which the Council may set depending on the urgency of the matter. In the absence of an opinion within that time-limit, the Council may act.

7. When concluding an agreement, the Council may, by way of derogation from paragraphs 5, 6 and 9, authorise the negotiator to approve on the Union's behalf modifications to the agreement where it provides for them to be adopted by a simplified procedure or by a body set up by the agreement. The Council may attach specific conditions to such authorisation.

8. The Council shall act by a qualified majority throughout the procedure.

However, it shall act unanimously when the agreement covers a field for which unanimity is required for the adoption of a Union act as well as for association agreements and the agreements referred to in Article 212 with the States which are candidates for accession. The Council shall also act unanimously for the agreement on accession of the Union to the European Convention for the Protection of Human Rights and Fundamental Freedoms; the decision concluding this agreement shall enter into force after it has been approved by the Member States in accordance with their respective constitutional requirements.

9. The Council, on a proposal from the Commission or the High Representative of the Union for Foreign Affairs and Security Policy, shall adopt a decision suspending application of an agreement and establishing the positions to be adopted on the Union's behalf in a body set up by an agreement, when that body is called upon to adopt acts having legal effects, with the exception of acts supplementing or amending the institutional framework of the agreement.

10. The European Parliament shall be immediately and fully informed at all stages of the procedure.

11. A Member State, the European Parliament, the Council or the Commission may obtain the opinion of the Court of Justice as to whether an agreement envisaged is compatible with the Treaties. Where the opinion of the Court is adverse, the agreement envisaged may not enter into force unless it is amended or the Treaties are revised.


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Comments

The abolishment of the separate European Union and the European Community by merging the EC into the EU, with legal personality, extends and facilitates the general procedure for negotiating and concluding international agreements.

The agreements are concluded in the name of the European Union.

International agreements relating to the common foreign and security (CFSP) still have special traits within the general procedure.

The role of the European Parliament is strengthened where its consent is needed.

Unanimity remains the rule for Council decisions in the following cases:

· When unanimity is required for the adoption of a Union act
· Association agreements
· Economic, financial and technical cooperation agreements with candidates for accession
· Accession of the EU to the European Convention for the Protection of Human Rights and Fundamental Freedoms (plus ratification needed)

In substance Article 218 TFEU is similar to Article III-325 of the Constitutional Treaty, with the addition that the European Convention on Human Rights requires both unanimous decision and ratification by the member states.



Ralf Grahn

European Union: Environmental legislation

The Treaty establishing the European Community (TEC) sets out co-decision with full participation of the European Parliament as the norm in environmental legislation, but by way of derogation (exception) sensitive areas have been kept under the unanimity rule.

The Treaty of Lisbon rephrases this two-pronged approach, without altering the substance.



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Article 175 TEC


Article 175 (ex Article 130s) of the current Treaty establishing the European Community (TEC) builds on the environmental aims of the European Community (European Union) in the preceding Article, namely to contribute to:

— preserving, protecting and improving the quality of the environment,

— protecting human health,

— prudent and rational utilisation of natural resources,

— promoting measures at international level to deal with regional or worldwide environmental problems.


The main rule on legislation is straightforward: the co-decision procedure (paragraph 1).

Harmonisation (approximation) of laws based on the internal market objectives of free movement of goods, persons, services and capital according to Article 95 TEC (referring to Article 14 TEC) is unaffected.

In sensitive areas, the member states have not been able to accept the co-decision procedure unanimously during the intergovernmental conferences. They have landed a political compromise with regard to the measures mentioned in the second paragraph of Article 175 TEC. By way of a derogation from paragraph 1, these measures have to enacted unanimously, but as a consolation to more “progressive” member states, the second subparagraph of paragraph 2 opens up the possibility to move to qualified majority voting by unanimous decision.

General environmental action programmes outside the scope of paragraph 2 are adopted by co-decision and the implementing, but implementing measures are adopted by the Council either by qualified majority voting (QMV; paragraph 1) or unanimously (paragraph 2).

Costs for environmental policies are, as a rule, borne by the member states, although temporary derogations or Cohesion Fund financing may be granted in certain cases.

Here is Article 175 TEC, as published in the latest consolidated version of the treaties, OJEU 29.12.2006 C 321 E/124–125:

(TITLE XIX
ENVIRONMENT)
Article 175 TEC

1. The Council, acting in accordance with the procedure referred to in Article 251 and after consulting the Economic and Social Committee and the Committee of the Regions, shall decide what action is to be taken by the Community in order to achieve the objectives referred to in Article 174.

2. By way of derogation from the decision-making procedure provided for in paragraph 1 and without prejudice to Article 95, the Council, acting unanimously on a proposal from the Commission and after consulting the European Parliament, the Economic and Social Committee and the Committee of the Regions, shall adopt:

(a) provisions primarily of a fiscal nature;

(b) measures affecting:

— town and country planning,

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

— land use, with the exception of waste management;

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

The Council may, under the conditions laid down in the first subparagraph, define those matters referred to in this paragraph on which decisions are to be taken by a qualified majority.

3. In other areas, general action programmes setting out priority objectives to be attained shall be adopted by the Council, acting in accordance with the procedure referred to in Article 251 and after consulting the Economic and Social Committee and the Committee of the Regions.

The Council, acting under the terms of paragraph 1 or paragraph 2 according to the case, shall adopt the measures necessary for the implementation of these programmes.

4. Without prejudice to certain measures of a Community nature, the Member States shall finance and implement the environment policy.

5. Without prejudice to the principle that the polluter should pay, if a measure based on the provisions of paragraph 1 involves costs deemed disproportionate for the public authorities of a Member State, the Council shall, in the act adopting that measure, lay down appropriate provisions in the form of:

— temporary derogations, and/or

— financial support from the Cohesion Fund set up pursuant to Article 161.



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Original Lisbon Treaty (ToL)

Article 2, point 144 amended Article 175 (OJEU 17.12.2007 C 306/87):

144) Article 175 shall be amended as follows:

(a) in paragraph 2, the second subparagraph shall be replaced by the following:

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

(b) in the first subparagraph of paragraph 3, the words ‘In other areas,’ shall be deleted and the second subparagraph shall be replaced by the following:

‘The measures necessary for the implementation of these programmes shall be adopted under the terms of paragraph 1 or 2, as the case may be.’;

(c) in paragraph 4, the words ‘certain measures of a Community nature,’ shall be replaced by ‘certain measures adopted by the Union’;

(d) in paragraph 5, the words ‘the Council shall, in the act adopting that measure, lay down’
shall be replaced by ‘such measure shall lay down’.



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Renumbering the Treaty of Lisbon (ToL)

(The Table of equivalences of the original Treaty of Lisbon tells us that Title XIX Environment retained its name and number in the TFEU (ToL), but it was later renumbered Title XX Environment in the consolidated version of the Lisbon Treaty.)

Article 175 TEC first became Article 175 TFEU (ToL), but was then renumbered Article 192 TFEU in the consolidated version of the Lisbon Treaty (OJEU 17.12.2007 C 306/218).


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Lisbon Treaty consolidated

Article 192 TFEU

After renumbering and amendments, Article 192 TFEU appears like this in the consolidated version of the Treaty of Lisbon (OJEU 9.5.2008 C 115/133–134):

(TITLE XX
ENVIRONMENT)

Article 192 TFEU
(ex Article 175 TEC)

1. The European Parliament and the Council, acting in accordance with the ordinary legislative procedure and after consulting the Economic and Social Committee and the Committee of the Regions, shall decide what action is to be taken by the Union in order to achieve the objectives referred to in Article 191.

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

(a) provisions primarily of a fiscal nature;

(b) measures affecting:

— town and country planning,

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

— land use, with the exception of waste management;

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

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

3. General action programmes setting out priority objectives to be attained shall be adopted by the European Parliament and the Council, acting in accordance with the ordinary legislative procedure and after consulting the Economic and Social Committee and the Committee of the Regions.

The measures necessary for the implementation of these programmes shall be adopted under the terms of paragraph 1 or 2, as the case may be.

4. Without prejudice to certain measures adopted by the Union, the Member States shall finance and implement the environment policy.

5. Without prejudice to the principle that the polluter should pay, if a measure based on the provisions of paragraph 1 involves costs deemed disproportionate for the public authorities of a Member State, such measure shall lay down appropriate provisions in the form of:

— temporary derogations, and/or

— financial support from the Cohesion Fund set up pursuant to Article 177.


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Summaries of legislation

The Commission’s Scadplus pages offer summaries of Community environmental legislation, with links to General provisions, Sustainable development, Climate change, Waste Management, Air pollution, Water protection and management, Protection of nature and biodiversity, Soil protection, Chemical products, Civil protection, Noise pollution and Environment: Cooperation with third countries, as well as hotly debated issues such as CO2 emission limits on new vehicles and Tackling climate change:

http://europa.eu/scadplus/leg/en/s15000.htm


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Commission activities

Commission news and activities can be accessed on and through the home page of Directorate-General Environment and Commissioner Stavros Dimas:

http://ec.europa.eu/environment/index_en.htm






Ralf Grahn

European Union: Culture

If you as an EU citizen visit a museum in another member state, your entrance fee is the same as for the locals.

Europe was arguably a cultural community long before the establishment of the European Economic Community (EEC), but the EEC Treaty had implications for non-discrimination as well as the free movement of persons, cultural goods and services.

Still, a distinct cultural policy had to wait for the Treaty on European Union (Maastricht Treaty) to be enshrined at treaty level.

The powers of the European Community (European Union) are of the supporting kind, but the Treaty of Lisbon would make it easier to reach decisions on incentive measures and recommendations, when Council moves from unanimity to qualified majority voting (QMV).



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Article 151 TEC

If diversity was what the drafters were looking for, they could have underlined the cultures in the member states. As it is, Article 151 emphasises the division of powers between the member states and the European Community (European Union): cultures of the Member States.

National and regional diversity is brought to the fore, before our common cultural heritage is mentioned.

Encouraging cooperation between member states is mentioned as the main activity, with other supporting and supplementing action following.

Cooperation with the pan-European Council of Europe should not be underestimated.

Incentive measures and recommendations require unanimous Council decisions.

The current Article 151 (ex Article 128) of the Treaty establishing the European Community (TEC), as published in the latest consolidated version of the treaties, OJ 29.12.2006 C 321 E/113–114:

TITLE XII
CULTURE

Article 151 TEC

1. The Community shall contribute to the flowering of the cultures of the Member States, while respecting their national and regional diversity and at the same time bringing the common cultural heritage to the fore.

2. Action by the Community shall be aimed at encouraging cooperation between Member States and, if necessary, supporting and supplementing their action in the following areas:

— improvement of the knowledge and dissemination of the culture and history of the European peoples,

— conservation and safeguarding of cultural heritage of European significance,

— non-commercial cultural exchanges,

— artistic and literary creation, including in the audiovisual sector.

3. The Community and the Member States shall foster cooperation with third countries and the competent international organisations in the sphere of culture, in particular the Council of Europe.

4. The Community shall take cultural aspects into account in its action under other provisions of this Treaty, in particular in order to respect and to promote the diversity of its cultures.

5. In order to contribute to the achievement of the objectives referred to in this Article, the Council:

— acting in accordance with the procedure referred to in Article 251 and after consulting the Committee of the Regions, shall adopt incentive measures, excluding any harmonisation of the laws and regulations of the Member States. The Council shall act unanimously throughout the procedure referred to in Article 251,

— acting unanimously on a proposal from the Commission, shall adopt recommendations.

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Original Lisbon Treaty (ToL)

Although the Treaty of Lisbon is unreadable on its own, it spells out how the current treaties are amended.

Article 2, point 126 of the original Treaty of Lisbon (ToL) uses the following inspiring language to convey the specific amendments (OJ 17.12.2007 C 306/83):

CULTURE

126) Article 151(5) shall be amended as follows:

(a) in the introductory phrase, the words ‘the Council’ shall be deleted;

(b) in the first indent, the first sentence shall begin with the words ‘the European Parliament and the Council, acting’, and the second sentence shall be deleted;

(c) in the second indent, the words ‘acting unanimously’ shall be deleted and the indent shall begin with the words ‘the Council, on a proposal’.

*
The horizontal amendments replace ‘Community’ by ‘Union’ and the ‘procedure referred to in Article 251’ (cooperation procedure) is replaced by the more readable ‘ordinary legislative procedure’(page 42).

The intergovernmental conference 2007 was not an ‘innovating’ exercise, but a salvage operation, so the essence of the new decision making flows from Article III-280 of the Treaty establishing a Constitution for Europe and before that Article III-181 of the draft Constitution, although the terms used by the Lisbon Treaty are different.

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Renumbering ToL

The Table of equivalences of the original Treaty of Lisbon tells us that Title XII Culture first became Title XII in the TFEU (ToL), but renumbered Title XIII Culture in the consolidated version.

Article 151 TEC first became Article 151 TFEU (ToL) before the renumbering of the treaty made it into Article 167 TFEU in the consolidated version (OJ 17.12.2007 C 306/217).


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Lisbon Treaty consolidated

After the explicit amendments, horizontal amendments and renumbering, Article 167 of the Treaty on the Functioning of the European Union (TFEU) appears as follows in the consolidated TFEU, published in the Official Journal of the European Union, OJ 9.5.2008 C 115/121–122:

TITLE XIII
CULTURE

Article 167 TFEU
(ex Article 151 TEC)

1. The Union shall contribute to the flowering of the cultures of the Member States, while respecting their national and regional diversity and at the same time bringing the common cultural heritage to the fore.

2. Action by the Union shall be aimed at encouraging cooperation between Member States and, if necessary, supporting and supplementing their action in the following areas:

— improvement of the knowledge and dissemination of the culture and history of the European peoples,

— conservation and safeguarding of cultural heritage of European significance,

— non-commercial cultural exchanges,

— artistic and literary creation, including in the audiovisual sector.

3. The Union and the Member States shall foster cooperation with third countries and the competent international organisations in the sphere of culture, in particular the Council of Europe.

4. The Union shall take cultural aspects into account in its action under other provisions of the Treaties, in particular in order to respect and to promote the diversity of its cultures.

5. In order to contribute to the achievement of the objectives referred to in this Article:

— the European Parliament and the Council acting in accordance with the ordinary legislative procedure and after consulting the Committee of the Regions, shall adopt incentive measures, excluding any harmonisation of the laws and regulations of the Member States,

— the Council, on a proposal from the Commission, shall adopt recommendations.

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Supporting, coordinating or supplementing EU action

Having looked at the powers of the European Union in the field of culture as set out by the Treaty of Lisbon, it might be helpful to recall the general TFEU provisions on categories and areas of Union competence.

Article 2 TFEU presents the main characteristics of exclusive competence and shared competence before the description in Article 2(5) TFEU:

5. In certain areas and under the conditions laid down in the Treaties, the Union shall have competence to carry out actions to support, coordinate or supplement the actions of the Member States, without thereby superseding their competence in these areas.

Legally binding acts of the Union adopted on the basis of the provisions of the Treaties relating to these areas shall not entail harmonisation of Member States' laws or regulations.


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Article 6 TFEU

The policy areas are then formed into rough groups in the following Articles. Here we are interested in Article 6 TFEU. Culture is mentioned among the areas where the EU supports, coordinates or supplements member states’ actions:

Article 6 TFEU

The Union shall have competence to carry out actions to support, coordinate or supplement the
actions of the Member States. The areas of such action shall, at European level, be:

(a) protection and improvement of human health;

(b) industry;

(c) culture;

(d) tourism;

(e) education, vocational training, youth and sport;

(f) civil protection;

(g) administrative cooperation.

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Summary of legislation: Culture

On the Commission’s Scadplus web pages with summaries of legislation, there is one describing the Culture Programme (2007 to 2013):

http://europa.eu/scadplus/leg/en/lvb/l29016.htm

The legal buffs and readers with a professional interest in culture may want to delve deeper into the Decision No 1855/2006/EC of the European Parliament and of the Council establishing the Culture Programme (2007 to 2013), published in the Official Journal of the European Union 27.12.2006 L 372/1:

http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2006:372:0001:0011:EN:PDF


News and links

General Commission news and links concerning culture can be found here:

http://ec.europa.eu/culture/index_en.htm



Ralf Grahn