Public services or competing producers? Fair competition or unfair state aid?
Services of general economic interest raise important political, economic and legal questions within the European Union.
We take a look at what the Treaty of Lisbon has to offer in this respect, and glimpse at the Commission's efforts to define the parameters in practice.
***
In the Treaty of Lisbon the intergovernmental conference repealed or reordered a number of provisions of the Treaty establishing the European Community (TEC), itself renamed the Treaty on the Functioning of the European Union (TFEU). See the Official Journal (OJ) 17.12.2007 C 306/48-49:
22) Articles 7 to 10 shall be repealed. Articles 11 and 11a shall be replaced by Article 10 of the Treaty on European Union and by Articles 280 A and 280 I of the Treaty on the Functioning of the European Union, as set out in this Treaty in point 22 of Article 1 above and in point 278 below.
23) The text of Article 12 shall become Article 16 D.
24) The text of Article 13 shall become Article 16 E. It shall be amended as set out below at point 33.
25) The text of Article 14 shall become Article 22a. It shall be amended as set out below at point 41.
26) The text of Article 15 shall become Article 22b. It shall be amended as set out below at point 42.
27) Article 16 shall be amended as follows:
(a) at the beginning, the words ‘Without prejudice to Articles 73, 86 and 87,’ shall be replaced by ‘Without prejudice to Article 3a of the Treaty on European Union or to Articles 73, 86 and 87 of this Treaty,’;
(b) at the end of the sentence, the words ‘and conditions which enable them to fulfil their missions’ shall be replaced by ‘and conditions, particularly economic and financial conditions, which enable them to fulfil their missions.’;
(c) the following new sentence shall be added:
‘The European Parliament and the Council, acting by means of regulations in accordance with the ordinary legislative procedure, shall establish these principles and set these conditions without prejudice to the competence of Member States, in compliance with the Treaties, to provide, to commission and to fund such services.’.
***
Let us see if a glance at the amendments would start to make some sense. The substance of the following repealed provisions does not disappear. What happens is a reordering between and within the treaties. For the latest consolidated version of the TEC, we go to OJ 29.12.2006 C 321 E, starting from page 46:
Article 7 TEC on the institutions of the European Community is repealed. The nearest corresponding provision is Article 9 of the amended Treaty on European Union, TEU (ToL), renumbered Article 13 TEU.
Article 8 TEC on the European System of Central Banks (ESCB) and the European Central Bank (ECB) is repealed. The substance is found in Article 9 TEU ToL, renumbered Article 13 TEU, and in Article 245a TFEU (ToL), renumbered Article 282 TFEU.
Article 9 TEC on the European Investment Bank (EIB) is repealed, but Articles 266 and 267 TEC are preserved with minor amendments as Articles 266 and 267 TFEU (ToL), renumbered Articles 308 and 309 TFEU.
Article 10 TEC on loyal cooperation is repealed. The substance is found in Article 3a(3) TEU (ToL), renumbered Article 4 TEU.
***
Article 11 TEC and Article 11a TEC on enhanced cooperation are replaced by TEU and TFEU provisions. The main principles are found in Article 10 TEU (ToL), renumbered Article 20 TEU. Detailed provisions on enhanced cooperation are found in Articles Articles 280a to 280i TFEU (ToL), renumbered Articles 326 to 334 TFEU.
***
The text of Article 12 TEC with the prohibition of discrimination on grounds of nationality becomes Article 16d TFEU (ToL), after renumbering Article 18 TFEU.
The text of Article 13 TEC on action to combat discrimination becomes the amended Article 16e TFEU (ToL), after renumbering Article 19 TFEU.
.
The text of Article 14 TEC on the progressive establishing of the internal market becomes the amended Article 22a TFEU (ToL), after renumbering Article 26 TFEU.
The text of Article 15 TEC on taking into account different development levels of member states while establishing the internal market and on temporary derogations becomes the amended Article 22b TFEU (ToL), Article 27 TFEU when renumbered.
***
We have now accounted for every Article until we reach point 27 of the IGC 2007, on Article 16 TEC. We start with a look at the current provision (OJ 29.12.2006 C 321 E/49):
Article 16 TEC
Without prejudice to Articles 73, 86 and 87, and given the place occupied by services of general economic interest in the shared values of the Union as well as their role in promoting social and territorial cohesion, the Community and the Member States, each within their respective powers and within the scope of application of this Treaty, shall take care that such services operate on the basis of principles and conditions which enable them to fulfil their missions.
***
Following the instructions given by the IGC 2007 we should arrive at a consolidated version of the amended provision, under Part One Principles, Title II Provisions having general application:
Article 16 TFEU (ToL), renumbered Article 14 TFEU
Without prejudice to Article 3a of the Treaty on European Union or to Articles 73, 86 and 87 of this Treaty, and given the place occupied by services of general economic interest in the shared values of the Union as well as their role in promoting social and territorial cohesion, the Union and the Member States, each within their respective powers and within the scope of application of the Treaties, shall take care that such services operate on the basis of principles and conditions, particularly economic and financial conditions, which enable them to fulfil their missions. The European Parliament and the Council, acting by means of regulations in accordance with the ordinary legislative procedure, shall establish these principles and set these conditions without prejudice to the competence of Member States, in compliance with the Treaties, to provide, to commission and to fund such services.
***
The European Convention proposed the following Article III-6 of the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/29):
Article III-6 Draft Constitution
Without prejudice to Articles III-55, III-56 and III-136, and given the place occupied by services of general economic interest as services to which all in the Union attribute value as well as their role in promoting social and territorial cohesion, the Union and the Member States, each within their respective powers and within the scope of application of the Constitution, shall take care that such services operate on the basis of principles and conditions, in particular economic and financial, which enable them to fulfil their missions. European laws shall define these principles and conditions.
***
The IGC 2004 agreed on the following Article III-122 in the Treaty establishing a Constitution for Europe (OJ 16.12.2004 C 310/56):
Article III-122 Constitution
Without prejudice to Articles I-5, III-166, III-167 and III-238, and given the place occupied by
services of general economic interest as services to which all in the Union attribute value as well as their role in promoting its social and territorial cohesion, the Union and the Member States, each within their respective competences and within the scope of application of the Constitution, shall take care that such services operate on the basis of principles and conditions, in particular economic and financial conditions, which enable them to fulfil their missions. European laws shall establish these principles and set these conditions without prejudice to the competence of Member States, in compliance with the Constitution, to provide, to commission and to fund such services.
***
We notice that the draft Constitution underlined that ‘all in the Union attribute value’ to services of general economic interest and added ‘in particular economic and financial’ to the principles and conditions.
In essence, the Constitution added a further admonition that the principles and conditions be established without prejudice to the competence of the member states, while retaining the present wording on ‘shared values of the Union’.
The other differences between the versions seem to be editorial in nature.
***
The IGC 2007 annexed a Protocol on services of general interest to the Lisbon Treaty (OJ 17.12.2007 C 306/156-157):
PROTOCOL
ON SERVICES OF GENERAL INTEREST
THE HIGH CONTRACTING PARTIES,
WISHING to emphasise the importance of services of general interest,
HAVE AGREED UPON the following interpretative provisions, which shall be annexed to the Treaty on European Union and to the Treaty on the Functioning of the European Union:
Article 1
The shared values of the Union in respect of services of general economic interest within the meaning of Article 16 of the Treaty on the Functioning of the European Union include in particular:
— the essential role and the wide discretion of national, regional and local authorities in providing, commissioning and organising services of general economic interest as closely as possible to the needs of the users;
— the diversity between various services of general economic interest and the differences in the needs and preferences of users that may result from different geographical, social or cultural situations;
— a high level of quality, safety and affordability, equal treatment and the promotion of universal access and of user rights.
Article 2
The provisions of the Treaties do not affect in any way the competence of Member States to provide, commission and organise non-economic services of general interest.
***
There are to concepts the reader should be aware of:
1) Services of general interest (SGIs)
2) Services of general economic interest (SGEIs)
Let us see what the Europa glossary gives us by the way of an introduction:
http://europa.eu/scadplus/glossary/index_en.htm
***
General-interest services
The glossary is being updated given the recent signing of the Treaty of Lisbon.
"General-interest services" are services considered to be in the general interest by the public authorities and accordingly subjected to specific public-service obligations. They include non-market services (e.g. compulsory education, social protection), obligations of the State (e.g. security and justice) and services of general economic interest (e.g. energy and communications). Article 86 of the Treaty (former Article 90) does not apply to the first two categories (non-market services and state obligations).
In May 2003 the European Commission adopted a Green Paper on services of general-interest in Europe. This opened a debate on the role of the European Union in promoting the supply of general-interest services, in defining their general-interest objectives and the way they are organised, financed and evaluated.
In May 2004 the Commission went on to issue a White Paper on services of general interest, in which it sets out the approach taken by the European Union to promoting the development of quality general-interest services. It presents the elements of a strategy to ensure that all citizens and firms in the Union have access to quality general-interest services at affordable prices. The Commission has decided to develop its sectoral approach without issuing a general directive for the moment.
***
Services of general economic interest
The glossary is being updated given the recent signing of the Treaty of Lisbon.
Services of general economic interest are commercial services of general economic utility, on which the public authorities therefore impose specific public-service obligations (Article 86 of the EC Treaty, formerly Article 90). Transport, energy and communications services are prime examples.
Article 16, which was written into the EC Treaty by the Treaty of Amsterdam, acknowledges the place occupied by services of general economic interest in the shared values of the Union and their role in promoting social and territorial cohesion. Article 16 also states that such services must operate on the basis of principles and conditions which enable them to fulfil their functions.
Article 36 of the Charter of Fundamental Rights of the European Union requires the Union to recognise and respect access to services of general economic interest to promote the social and territorial cohesion of the Union.
***
Services of general interest, defined as non-market services and state obligations, vary in scope between the different member states. It may be an oversimplification but indicative to say that the SGIs may be controversial politically, but not from a market point of view.
Services of general economic interest add the dimension of the internal market and its competition rules, including rules on state aid.
We have seen that the member states have emphasized their wide discretion in arranging services of general economic interest. The Commission, on the other hand, is keenly interested in upholding a functioning internal market, which has resulted in a number of policy documents attempting to define the scope of funding to SGEIs in real or potential market competition with private firms.
Recently the Commission’s substantial package on the internal market has included policy documents relevant to SGIs and SGEIs. Here are some fresh policy documents of interest to those who want to delve deeper:
COM/2007/0724 final
Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions - A single market for 21st century Europe
COM/2007/0725 final
Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions accompanying the Communication on "A single market for 21st century Europe" - Services of general interest, including social services of general interest: a new European commitment
SEC/2007/1514 final
Commission staff working document - Frequently asked questions concerning the application of public procurement rules to social services of general interest - Accompanying document to the Communication on "Services of general interest, including social services of general interest: a new European commitment"
SEC/2007/1515 final
Commission staff working document - Progress since the 2004 White paper on services of general interest - Accompanying document to the Communication on "Services of general interest, including social services of general interest: a new European commitment"
SEC/2007/1516 final
Commission staff working document - Frequently asked questions in relation with Commission Decision of 28 November 2005 on the application of Article 86(2) of the EC Treaty to State aid in the form of public service compensation granted to certain undertakings entrusted with the operation of services of general economic interest, and of the Community Framework for State aid in the form of public service compensation - Accompanying document to the Communication on "Services of general interest, including social services of general interest: a new European commitment"
Ralf Grahn
Friday, 29 February 2008
Thursday, 28 February 2008
EU TFEU: Animal welfare
Animal health and welfare have a direct bearing on producers and are important for consumers, but these issues also agitate campaigners for radical change. At the same time, religious beliefs or deeply rooted national or regional customs could lead to massive protests, if the European Union tried forceful unification regardless of existing sensitivities.
This means that the protection and welfare of animals is going to remain a contested area, with clashing views on how intrusive EU legislation shall become in general, and the scope for member state exceptions in sensitive questions.
The Treaty of Lisbon enhances the visibility of animal welfare and it widens the scope of protective measures to new policy fields, but the principle of subsidiarity is clearly stated to give the member states room to decide sensitive issues.
***
In the Treaty of Lisbon (ToL) the intergovernmental conference (IGC 2007) decided to insert a provision on the protection and welfare of animals into the Treaty establishing the European Community (TEC), renamed the Treaty on the Functioning of the European Union (TFEU). See OJ 17.12.2007 C 306/48:
21) An Article 6b shall be inserted, with the wording of the enacting terms of the Protocol on the protection and welfare of animals; the word ‘fisheries’ shall be inserted after ‘agriculture’, the words ‘and research’ shall be replaced by ‘research and technological development and space’, and the words ‘, since animals are sentient beings,’ shall be inserted after ‘Member States shall’.
***
Naturally, we all realise that the IGC 2007 refers to a protocol annexed to the Treaty of Amsterdam, and that it can be found in the latest consolidated version of the TEU and the TEC (OJ 29.12.2006 C 321 E/314):
Protocol (No 33)
on protection and welfare of animals (1997)
THE HIGH CONTRACTING PARTIES,
DESIRING to ensure improved protection and respect for the welfare of animals as sentient beings;
HAVE AGREED UPON the following provision which shall be annexed to the Treaty establishing the European Community,
In formulating and implementing the Community's agriculture, transport, internal market and research policies, the Community and the Member States shall pay full regard to the welfare requirements of animals, while respecting the legislative or administrative provisions and customs of the Member States relating in particular to religious rites, cultural traditions and regional heritage.
***
Now for some DIY consolidation of the new provision, given the IGC’s ‘modus operandi’: to enhance the welfare of animals while subjecting humans to unnecessary cruelty.
The provision, in Part One Principles, Title II Provisions having general application, which could well have been written in a comprehensible way by the IGC 2007, should look like this:
Article 6b TFEU (ToL), after renumbering Article 13 TFEU
In formulating and implementing the Union's agriculture, fisheries, transport, internal market, research and technological development and space policies, the Union and the Member States shall, since animals are sentient beings, pay full regard to the welfare requirements of animals, while respecting the legislative or administrative provisions and customs of the Member States relating in particular to religious rites, cultural traditions and regional heritage.
***
The European Convention proposed no corresponding Article in its draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/1).
The Convention proposed texts for a number of politically interesting protocols, but left it to the coming IGC to sort out and to update the bulk of protocols and declarations annexed to the treaties in force
Without looking deeper into the Convention proceedings, it looks as if the Protocol on protection and welfare of animals may have been intended to live on annexed to the Constitution to be.
***
In Part III The policies and functioning of the Union, Title I Provisions of general application, the IGC 2004 agreed to insert a new provision (OJ 16.12.2004 C 310/55-56):
Article III-121 Constitution
In formulating and implementing the Union's agriculture, fisheries, transport, internal market, research and technological development and space policies, the Union and the Member States shall, since animals are sentient beings, pay full regard to the requirements of animal welfare, while respecting the legislative or administrative provisions and customs of Member States relating in particular to religious rites, cultural traditions and regional heritage.
***
As far as I see, there are no other differences between the Constitution and the Lisbon Treaty than that the Constitution’s ‘requirements of animal welfare’ slipped back to ‘welfare requirements of animals’ in the Reform Treaty provision.
***
Comments by your glossator:
Although a protocol is legally binding, given a provision having general application, animal welfare gains visibility in the Treaty of Lisbon, making it easier to raise concerns when actions in certain policy areas are contemplated or debated.
The Lisbon Treaty broadens the scope of the provision by adding fisheries, research and technological development and space policies to the policy areas mentioned in Protocol 33.
On the other hand, the provision continues to leave ample scope for exceptions based on respect for ‘the legislative or administrative provisions and customs of Member States relating in particular to religious rites, cultural traditions and regional heritage’.
Depending on national sensitivities, religious slaughter practices, bullfighting, as well as hunting and other customs are given leeway until, if ever, public opinion and politicians are ready for reform.
***
For a first look at what the European Community has done in the field of animal welfare, you can access the different web pages under the icon Animal Welfare, offered by DG Health and Consumer Protection, starting with, for instance:
http://ec.europa.eu/food/animal/welfare/actionplan/actionplan_en.htm
***
Perhaps this was enough as an introduction for readers as sentient beings.
Ralf Grahn
This means that the protection and welfare of animals is going to remain a contested area, with clashing views on how intrusive EU legislation shall become in general, and the scope for member state exceptions in sensitive questions.
The Treaty of Lisbon enhances the visibility of animal welfare and it widens the scope of protective measures to new policy fields, but the principle of subsidiarity is clearly stated to give the member states room to decide sensitive issues.
***
In the Treaty of Lisbon (ToL) the intergovernmental conference (IGC 2007) decided to insert a provision on the protection and welfare of animals into the Treaty establishing the European Community (TEC), renamed the Treaty on the Functioning of the European Union (TFEU). See OJ 17.12.2007 C 306/48:
21) An Article 6b shall be inserted, with the wording of the enacting terms of the Protocol on the protection and welfare of animals; the word ‘fisheries’ shall be inserted after ‘agriculture’, the words ‘and research’ shall be replaced by ‘research and technological development and space’, and the words ‘, since animals are sentient beings,’ shall be inserted after ‘Member States shall’.
***
Naturally, we all realise that the IGC 2007 refers to a protocol annexed to the Treaty of Amsterdam, and that it can be found in the latest consolidated version of the TEU and the TEC (OJ 29.12.2006 C 321 E/314):
Protocol (No 33)
on protection and welfare of animals (1997)
THE HIGH CONTRACTING PARTIES,
DESIRING to ensure improved protection and respect for the welfare of animals as sentient beings;
HAVE AGREED UPON the following provision which shall be annexed to the Treaty establishing the European Community,
In formulating and implementing the Community's agriculture, transport, internal market and research policies, the Community and the Member States shall pay full regard to the welfare requirements of animals, while respecting the legislative or administrative provisions and customs of the Member States relating in particular to religious rites, cultural traditions and regional heritage.
***
Now for some DIY consolidation of the new provision, given the IGC’s ‘modus operandi’: to enhance the welfare of animals while subjecting humans to unnecessary cruelty.
The provision, in Part One Principles, Title II Provisions having general application, which could well have been written in a comprehensible way by the IGC 2007, should look like this:
Article 6b TFEU (ToL), after renumbering Article 13 TFEU
In formulating and implementing the Union's agriculture, fisheries, transport, internal market, research and technological development and space policies, the Union and the Member States shall, since animals are sentient beings, pay full regard to the welfare requirements of animals, while respecting the legislative or administrative provisions and customs of the Member States relating in particular to religious rites, cultural traditions and regional heritage.
***
The European Convention proposed no corresponding Article in its draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/1).
The Convention proposed texts for a number of politically interesting protocols, but left it to the coming IGC to sort out and to update the bulk of protocols and declarations annexed to the treaties in force
Without looking deeper into the Convention proceedings, it looks as if the Protocol on protection and welfare of animals may have been intended to live on annexed to the Constitution to be.
***
In Part III The policies and functioning of the Union, Title I Provisions of general application, the IGC 2004 agreed to insert a new provision (OJ 16.12.2004 C 310/55-56):
Article III-121 Constitution
In formulating and implementing the Union's agriculture, fisheries, transport, internal market, research and technological development and space policies, the Union and the Member States shall, since animals are sentient beings, pay full regard to the requirements of animal welfare, while respecting the legislative or administrative provisions and customs of Member States relating in particular to religious rites, cultural traditions and regional heritage.
***
As far as I see, there are no other differences between the Constitution and the Lisbon Treaty than that the Constitution’s ‘requirements of animal welfare’ slipped back to ‘welfare requirements of animals’ in the Reform Treaty provision.
***
Comments by your glossator:
Although a protocol is legally binding, given a provision having general application, animal welfare gains visibility in the Treaty of Lisbon, making it easier to raise concerns when actions in certain policy areas are contemplated or debated.
The Lisbon Treaty broadens the scope of the provision by adding fisheries, research and technological development and space policies to the policy areas mentioned in Protocol 33.
On the other hand, the provision continues to leave ample scope for exceptions based on respect for ‘the legislative or administrative provisions and customs of Member States relating in particular to religious rites, cultural traditions and regional heritage’.
Depending on national sensitivities, religious slaughter practices, bullfighting, as well as hunting and other customs are given leeway until, if ever, public opinion and politicians are ready for reform.
***
For a first look at what the European Community has done in the field of animal welfare, you can access the different web pages under the icon Animal Welfare, offered by DG Health and Consumer Protection, starting with, for instance:
http://ec.europa.eu/food/animal/welfare/actionplan/actionplan_en.htm
***
Perhaps this was enough as an introduction for readers as sentient beings.
Ralf Grahn
Wednesday, 27 February 2008
EU: Who watches the watchmen?
A shocking temporary conclusion to Probity European Parliament style.
Quis custodiet ipsos custodes? Juvenal’s question is as pertinent as ever when EUobserver reports that ’MEPs vote not to publish controversial audit report’:
http://euobserver.com/9/25728/?rk=1
The EUobserver article, penned by Elitsa Vucheva, leads us to believe that MEPs Chris Davies and Jens-Peter Bonde were among the 14 members of the committee voting for the publication of a soft version of the internal audit report (without names). I expect other members of the minority to step forward to distance themselves from the majority for a cover-up.
It would be most enlightening if the 21 committee members who voted against publishing even a censored version would be kind enough to fully explain their motives and reasons.
For the citizens of the European Union it is a start to get to know the watchmen, the members of the European Parliament sitting on the Committee on Budgetary Control (CONT in EP parlance):
http://www.europarl.europa.eu/activities/committees/membersCom.do?language=EN&body=CONT
As long as the voting record of yesterday’s meeting is unavailable, and as long as they have not stepped forward on their own, every member is of potential interest to the citizens of the European Union, bearing in mind the June 2009 elections.
Striking the report from the agenda of the Committee on Budgetary Control simply is not good enough.
I repeat my suggestion that everyone with an interest in the history of EU politics and integration history compare the current double scandal – misuse of public funds and cover-up – with the fall of the Santer Commission, prime material for the nascent European public space.
Ralf Grahn
Quis custodiet ipsos custodes? Juvenal’s question is as pertinent as ever when EUobserver reports that ’MEPs vote not to publish controversial audit report’:
http://euobserver.com/9/25728/?rk=1
The EUobserver article, penned by Elitsa Vucheva, leads us to believe that MEPs Chris Davies and Jens-Peter Bonde were among the 14 members of the committee voting for the publication of a soft version of the internal audit report (without names). I expect other members of the minority to step forward to distance themselves from the majority for a cover-up.
It would be most enlightening if the 21 committee members who voted against publishing even a censored version would be kind enough to fully explain their motives and reasons.
For the citizens of the European Union it is a start to get to know the watchmen, the members of the European Parliament sitting on the Committee on Budgetary Control (CONT in EP parlance):
http://www.europarl.europa.eu/activities/committees/membersCom.do?language=EN&body=CONT
As long as the voting record of yesterday’s meeting is unavailable, and as long as they have not stepped forward on their own, every member is of potential interest to the citizens of the European Union, bearing in mind the June 2009 elections.
Striking the report from the agenda of the Committee on Budgetary Control simply is not good enough.
I repeat my suggestion that everyone with an interest in the history of EU politics and integration history compare the current double scandal – misuse of public funds and cover-up – with the fall of the Santer Commission, prime material for the nascent European public space.
Ralf Grahn
EU TFEU: Consumer protection
Can things change without changing the wording? The structure or interrelation between different parts of the EU treaties may seem an arcane hobby, apt to send anyone but a constitutional lawyer to sleep.
But let us take an example of how, arguably, the interests of citizens, the speeches of politicians and the actions of NGOs may be influenced by hardly noticeable change.
No change of wording, but a different perception leading to qualitative change.
***
In the Treaty of Lisbon (ToL) the intergovernmental conference (IGC 2007) inserted an Article 6a into the Treaty establishing the European Community (TEC), renamed the Treaty on the Functioning of the European Union (TFEU). We are given directions as to the contents in OJ 17.12.2007 C 306/48:
20) An Article 6a shall be inserted, with the wording of Article 153(2).
***
Study of the current treaties is never amiss, so we look up the TEC (in the latest consolidated version of the TEU and the TEC in OJ 29.12.2006 C 321 C E/116:
Article 153(2) TEC
2. Consumer protection requirements shall be taken into account in defining and implementing other Community policies and activities.
***
Our diligent work, which I hope has been repeated for every Article by each participant in the IGC 2007 and every ‘no’ voter in France and the Netherlands, has brought its own reward: We are delighted to realise that the Lisbon Treaty places a provision on consumer protection among the provisions having general application (Title II) in the TFEU:
Article 6a TFEU (ToL), to be renumbered Article 12 TFEU
Consumer protection requirements shall be taken into account in defining and implementing other Community policies and activities.
***
The European Convention had the commendable objective to offer us a unified and readable treaty. In Part III The policies and functioning of the Union, Title I Clauses of general application, there was Article III-5 of the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/29), with the familiar text:
Article III-5 Draft Constitution
Consumer protection requirements shall be taken into account in defining and implementing other Union policies and activities.
***
The IGC 2004 preserved this laudatory aim of the Convention in the Treaty establishing a Constitution for Europe, where Part III The policies and functioning of the Union, Title I Provisions of general application, contained Article III-120 (OJ 16.12.2004 C 310/55) on consumer protection:
Article III-120 Constitution
Consumer protection requirements shall be taken into account in defining and implementing other Union policies and activities.
***
We find exactly the same wording in every version, from the current TEC to the Lisbon Treaty, but from a systematic point of view the ordering of horizontal or transversal provisions, having general application, improves clarity and readability of all the treaty versions from the draft Constitution onwards, and helps to enhance the visibility of every general provision.
It is easier to use these provisions having general application as a check list for every proposed legislative act, regardless of area, and raise them in legal and political debate, than if the text of each of them was tucked away in its own niche, like the provision on consumer protection we followed.
I submit that there is a qualitative change, although the wording is unchanged.
***
What about substance?
Those who want an overview of European Community policies and activies in the field of consumer affairs can start from the Europa web pages, Activities of the European Union, Summaries of legislation, Consumers:
http://europa.eu/scadplus/leg/en/s16000.htm
‘Consumers: Introduction’ offers four pages of background on how consumer protection has evolved in the EC, although the pages have last been updated 16 August 2006 and still speak of an EU-25 as a novelty:
http://europa.eu/scadplus/leg/en/lvb/l32000.htm
***
Consumer protection is of interest to 490 million citizens and consumers as well as to most businesses operating in or trading with the European Union.
Ralf Grahn
But let us take an example of how, arguably, the interests of citizens, the speeches of politicians and the actions of NGOs may be influenced by hardly noticeable change.
No change of wording, but a different perception leading to qualitative change.
***
In the Treaty of Lisbon (ToL) the intergovernmental conference (IGC 2007) inserted an Article 6a into the Treaty establishing the European Community (TEC), renamed the Treaty on the Functioning of the European Union (TFEU). We are given directions as to the contents in OJ 17.12.2007 C 306/48:
20) An Article 6a shall be inserted, with the wording of Article 153(2).
***
Study of the current treaties is never amiss, so we look up the TEC (in the latest consolidated version of the TEU and the TEC in OJ 29.12.2006 C 321 C E/116:
Article 153(2) TEC
2. Consumer protection requirements shall be taken into account in defining and implementing other Community policies and activities.
***
Our diligent work, which I hope has been repeated for every Article by each participant in the IGC 2007 and every ‘no’ voter in France and the Netherlands, has brought its own reward: We are delighted to realise that the Lisbon Treaty places a provision on consumer protection among the provisions having general application (Title II) in the TFEU:
Article 6a TFEU (ToL), to be renumbered Article 12 TFEU
Consumer protection requirements shall be taken into account in defining and implementing other Community policies and activities.
***
The European Convention had the commendable objective to offer us a unified and readable treaty. In Part III The policies and functioning of the Union, Title I Clauses of general application, there was Article III-5 of the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/29), with the familiar text:
Article III-5 Draft Constitution
Consumer protection requirements shall be taken into account in defining and implementing other Union policies and activities.
***
The IGC 2004 preserved this laudatory aim of the Convention in the Treaty establishing a Constitution for Europe, where Part III The policies and functioning of the Union, Title I Provisions of general application, contained Article III-120 (OJ 16.12.2004 C 310/55) on consumer protection:
Article III-120 Constitution
Consumer protection requirements shall be taken into account in defining and implementing other Union policies and activities.
***
We find exactly the same wording in every version, from the current TEC to the Lisbon Treaty, but from a systematic point of view the ordering of horizontal or transversal provisions, having general application, improves clarity and readability of all the treaty versions from the draft Constitution onwards, and helps to enhance the visibility of every general provision.
It is easier to use these provisions having general application as a check list for every proposed legislative act, regardless of area, and raise them in legal and political debate, than if the text of each of them was tucked away in its own niche, like the provision on consumer protection we followed.
I submit that there is a qualitative change, although the wording is unchanged.
***
What about substance?
Those who want an overview of European Community policies and activies in the field of consumer affairs can start from the Europa web pages, Activities of the European Union, Summaries of legislation, Consumers:
http://europa.eu/scadplus/leg/en/s16000.htm
‘Consumers: Introduction’ offers four pages of background on how consumer protection has evolved in the EC, although the pages have last been updated 16 August 2006 and still speak of an EU-25 as a novelty:
http://europa.eu/scadplus/leg/en/lvb/l32000.htm
***
Consumer protection is of interest to 490 million citizens and consumers as well as to most businesses operating in or trading with the European Union.
Ralf Grahn
Tuesday, 26 February 2008
Probity European Parliament style
Do you remember the fate of the Santer Commission, when the European Parliament flexed its muscles as a guardian of probity?
Compare it to the current handling of allegations of misuse of public funds by MEP’s themselves.
I have received no direct answer to the query I sent to the EP’s Press Office.
When I checked a short while ago, I found no information on the press web pages of the European Parliament.
If it took Hercules a day to clean the Augean stables, ordinary mortals may need more to get things cleaned up, but the time for the EP to start communicating passed many days ago.
Ralf Grahn
Compare it to the current handling of allegations of misuse of public funds by MEP’s themselves.
I have received no direct answer to the query I sent to the EP’s Press Office.
When I checked a short while ago, I found no information on the press web pages of the European Parliament.
If it took Hercules a day to clean the Augean stables, ordinary mortals may need more to get things cleaned up, but the time for the EP to start communicating passed many days ago.
Ralf Grahn
EU TFEU: Environmental protection
Environmental protection and sustainable development need action from the individual to the global level, with the European Union an increasingly important actor in between.
Every policy and activity of the EU can and should be scrutinised from these angles.
***
In the Treaty of Lisbon (ToL) the intergovernmental conference gives us this stirring lead in the Treaty establishing the European Community (TEC), renamed the Treaty on the Functioning of the European Union (TFEU). See OJ 17.12.2007 C 306/48:
19) In Article 6, the words ‘referred to in Article 3’ shall be deleted.
***
Should the Lisbon Treaty never enter into force, we have cause to be grateful for the incentive offered by the IGC 2007 to study the existing treaties we would be stuck with.
Here is Article 6 TEC (taken from the latest consolidated version of the current TEU and TEC, published in OJ 29.12.2006 C 321 E/46:
Article 6 TEC
Environmental protection requirements must be integrated into the definition and implementation
of the Community policies and activities referred to in Article 3, in particular with a view to
promoting sustainable development.
***
Bearing in mind that ’Community’ and ’European Community’ belong to the terms marked for extinction under horizontal amendments, and following the instructions handed out, we arrive at the following consolidated text, under Title II Provisions having general application (throughout the treaty):
Article 6 TFEU (ToL), after renumbering Article 11 TFEU
Environmental protection requirements must be integrated into the definition and implementation of the Union policies and activities, in particular with a view to promoting sustainable development.
***
Never mind that the current TEC and the agreed TFEU are substantially the same. Intrepid warriors want to know what that proponent of European democracy, Valéry Giscard d’Estaing, and the European Convention he led, proposed in the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/29):
Article III-4 Draft Constitution
Environmental protection requirements must be integrated into the definition and implementation of the Union policies and activities referred to in this Part, in particular with a view to promoting sustainable development.
***
What did the previous IGC 2004 agree on in the Treaty establishing a Constitution for Europe? A quick look in OJ 16.12.2004 C 310/55:
Article III-119 Constitution
Environmental protection requirements must be integrated into the definition and implementation of the policies and activities referred to in this Part, in particular with a view to promoting sustainable development.
***
Everybody should now be happy: The ones who contend that the Lisbon Treaty is practically the same as the Constitution (and the draft Constitution) can point to identical wording. Those who want to underline the pious rewording of an amending treaty find satisfaction in the substantial similarity between the TEC and the agreed TFEU.
Splendid!
***
What the Europa Glossary has to say about the environment:
http://europa.eu/scadplus/glossary/environment_en.htm
Further reading on the EU and environmental protection:
http://europa.eu/scadplus/leg/en/s15000.htm
For the Europa Glossary introduction to sustainable development:
http://europa.eu/scadplus/glossary/sustainable_development_en.htm
A primer on sustainable development:
http://europa.eu/scadplus/leg/en/s15001.htm
***
If sustainable development meets the needs of the present generation without compromising the ability of future generations to meet their own needs, there are least three important aspects to sustainability: environmental, economic and social-political.
Between the competing claims of growth and prosperity now on the one hand and needs of future generations on the other hand, European regulation and legislation is never going to be boring.
It might even merit the efforts of the best and the brightest.
Ralf Grahn
Every policy and activity of the EU can and should be scrutinised from these angles.
***
In the Treaty of Lisbon (ToL) the intergovernmental conference gives us this stirring lead in the Treaty establishing the European Community (TEC), renamed the Treaty on the Functioning of the European Union (TFEU). See OJ 17.12.2007 C 306/48:
19) In Article 6, the words ‘referred to in Article 3’ shall be deleted.
***
Should the Lisbon Treaty never enter into force, we have cause to be grateful for the incentive offered by the IGC 2007 to study the existing treaties we would be stuck with.
Here is Article 6 TEC (taken from the latest consolidated version of the current TEU and TEC, published in OJ 29.12.2006 C 321 E/46:
Article 6 TEC
Environmental protection requirements must be integrated into the definition and implementation
of the Community policies and activities referred to in Article 3, in particular with a view to
promoting sustainable development.
***
Bearing in mind that ’Community’ and ’European Community’ belong to the terms marked for extinction under horizontal amendments, and following the instructions handed out, we arrive at the following consolidated text, under Title II Provisions having general application (throughout the treaty):
Article 6 TFEU (ToL), after renumbering Article 11 TFEU
Environmental protection requirements must be integrated into the definition and implementation of the Union policies and activities, in particular with a view to promoting sustainable development.
***
Never mind that the current TEC and the agreed TFEU are substantially the same. Intrepid warriors want to know what that proponent of European democracy, Valéry Giscard d’Estaing, and the European Convention he led, proposed in the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/29):
Article III-4 Draft Constitution
Environmental protection requirements must be integrated into the definition and implementation of the Union policies and activities referred to in this Part, in particular with a view to promoting sustainable development.
***
What did the previous IGC 2004 agree on in the Treaty establishing a Constitution for Europe? A quick look in OJ 16.12.2004 C 310/55:
Article III-119 Constitution
Environmental protection requirements must be integrated into the definition and implementation of the policies and activities referred to in this Part, in particular with a view to promoting sustainable development.
***
Everybody should now be happy: The ones who contend that the Lisbon Treaty is practically the same as the Constitution (and the draft Constitution) can point to identical wording. Those who want to underline the pious rewording of an amending treaty find satisfaction in the substantial similarity between the TEC and the agreed TFEU.
Splendid!
***
What the Europa Glossary has to say about the environment:
http://europa.eu/scadplus/glossary/environment_en.htm
Further reading on the EU and environmental protection:
http://europa.eu/scadplus/leg/en/s15000.htm
For the Europa Glossary introduction to sustainable development:
http://europa.eu/scadplus/glossary/sustainable_development_en.htm
A primer on sustainable development:
http://europa.eu/scadplus/leg/en/s15001.htm
***
If sustainable development meets the needs of the present generation without compromising the ability of future generations to meet their own needs, there are least three important aspects to sustainability: environmental, economic and social-political.
Between the competing claims of growth and prosperity now on the one hand and needs of future generations on the other hand, European regulation and legislation is never going to be boring.
It might even merit the efforts of the best and the brightest.
Ralf Grahn
Monday, 25 February 2008
EU TFEU: Combating discrimination
The European Union is bound by prohibitions on discrimination and the European Community is allowed action to combat discrimination on various grounds.
The Treaty of Lisbon introduces a horizontal aim to combat discrimination on specific grounds in the policies and activities of the European Union.
***
The intergovernmental conference (IGC 2007) inserted a new provision having general applicability into the Treaty of Lisbon (ToL), more precisely the Treaty establishing the European Community (TEC), renamed the Treaty on the Functioning of the European Union (TFEU). See OJ 17.12.2007 C 306/48:
Article 5b TFEU (ToL), to be renumbered Article 10 TFEU
In defining and implementing its policies and activities, the Union shall aim to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation.
***
Reading is fine, but understanding is better. We set out to see the origins of this new transversal provision, by looking first at the Treaty establishing a Constitution for Europe, where Title I Provisions of general application of Part III The policies and functioning of the Union has this to offer (OJ 16.12.2004 C 310/55):
Article III-118 Constitution
In defining and implementing the policies and activities referred to in this Part, the Union shall aim to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation.
***
We are able to see that the only difference is of an editorial nature, the substance including the specific grounds for discrimination to combat being identical in the Lisbon Treaty and the Constitution.
***
If we find something in the Constitutional Treaty, there is cause to take a peek at what the European Convention proposed in the draft Treaty establishing a Constitution for Europe. Part III The policies and functioning of the Union, and its Title I Clauses of general application offer us this provision (OJ 18.7.2003 C 169/29):
Article III-3 Draft Constitution
In defining and implementing the policies and activities referred to in this Part, the Union shall aim to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation.
***
The draft Constitution and the Constitution are identical in this respect.
***
Article III-3 of the draft Constitution has been described as a new horizontal provision, which would apply to the Constitution and the Lisbon Reform Treaty, as well.
Let us see if there are any points of reference in the current treaties, the TEU and the TEC.
***
One provision to check would seem to be Article 6 TEU, especially paragraph 2 with its reference to the European Convention for the Protection of Human Rights and Fundamental Freedoms (the latest consolidated version of the current TEU and TEC being found in OJ 29.12.2006 C 321 E/1, with Article 6 TEU on page 12):
Article 6 TEU
1. The Union is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law, principles which are common to the Member States.
2. The Union shall respect fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950 and as they result from the constitutional traditions common to the Member States, as general principles of Community law.
3. The Union shall respect the national identities of its Member States.
4. The Union shall provide itself with the means necessary to attain its objectives and carry through its policies.
***
The European Human Rights Convention, consolidated with later amending protocols, can be found on the web pages of the Council of Europe:
http://conventions.coe.int/Treaty/Commun/QueVoulezVous.asp?NT=005&CM=7&DF=2/25/2008&CL=ENG
Our attention turns to Article 14, as amended by Protocol 11:
Article 14 – Prohibition of discrimination
The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.
***
On the face of it, most of the specific grounds for prohibited discrimination seem to be shared by the European Human Rights Convention and the Lisbon Treaty, but a more thorough examination would be required to ascertain if, for instance, ‘birth or other status’ have been given the same scope by the European Court of Human Rights as ‘disability, age or sexual orientation’ enumerated in the Treaty of Lisbon.
***
One of the mainstays of the common market has been the prohibition of discrimination on grounds of nationality, to be found in the existing Article 12 TEC (OJ 29.12.2006 C 321 E/48):
Article 12 TEC
Within the scope of application of this Treaty, and without prejudice to any special provisions contained therein, any discrimination on grounds of nationality shall be prohibited.
The Council, acting in accordance with the procedure referred to in Article 251, may adopt rules designed to prohibit such discrimination.
***
We come even closer when we take a look at the specific grounds for discrimination to combat in the current Article 13 TEC:
Article 13 TEC
1. Without prejudice to the other provisions of this Treaty and within the limits of the powers conferred by it upon the Community, the Council, acting unanimously on a proposal from the
Commission and after consulting 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.
2. By way of derogation from paragraph 1, when the Council adopts Community incentive measures, excluding any harmonisation of the laws and regulations of the Member States, to support action taken by the Member States in order to contribute to the achievement of the objectives referred to in paragraph 1, it shall act in accordance with the procedure referred to in Article 251.
***
The grounds mentioned in Article 13 TEC and Article 5b TFEU (ToL) are identical, and more than a prohibition against discrimination the current treaty envisions active action to combat discrimination.
We are going to leave the question open for now, if the present requirement for unanimity is upheld in the Treaty of Lisbon.
***
The fundamental rights of the citizens of the European Union (or universally), caused a fair amount of commotion among member states’ governments. This warrants a closer look at the Charter of Fundamental Rights and related expressions of concern.
We take note of the fact that the Charter of Fundamental Rights of the European Union includes a prohibition of discrimination, by the EU institutions and the member states when implementing EU law, on various grounds, many of them fairly familiar by now (OJ 14.12.2007 C 303/7):
Article 21 Charter
Non-discrimination
1. Any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation shall be prohibited.
2. Within the scope of application of the Treaties and without prejudice to any of their specific provisions, any discrimination on grounds of nationality shall be prohibited.
***
We refer the interested reader to the Explanations relating to the Charter of Fundamental Rights (OJ 14.12.2007 C 303/24):
Explanation on Article 21 — Non-discrimination
Paragraph 1 draws on Article 13 of the EC Treaty, now replaced by Article 19 of the Treaty on the Functioning of the European Union, Article 14 of the ECHR and Article 11 of the Convention on Human Rights and Biomedicine as regards genetic heritage. In so far as this corresponds to Article 14 of the ECHR, it applies in compliance with it.
There is no contradiction or incompatibility between paragraph 1 and Article 19 of the Treaty on the Functioning of the European Union which has a different scope and purpose: Article 19 confers power on the Union to adopt legislative acts, including harmonisation of the Member States' laws and regulations, to combat certain forms of discrimination, listed exhaustively in that Article. Such legislation may cover action of Member State authorities (as well as relations between private individuals) in any area within the limits of the Union's powers. In contrast, the provision in Article 21(1) does not create any power to enact anti-discrimination laws in these areas of Member State or private action, nor does it lay down a sweeping ban of discrimination in such wide-ranging areas. Instead, it only addresses discriminations by the institutions and bodies of the Union themselves, when exercising powers conferred under the Treaties, and by Member States only when they are implementing Union law. Paragraph 1 therefore does not alter the extent of powers granted under Article 19 nor the interpretation given to that Article.
Paragraph 2 corresponds to the first paragraph of Article 18 of the Treaty on the Functioning of the European Union and must be applied in compliance with that Article.
***
Naturally, should we be confronted with a problem pertaining to the Charter, we have to be aware of the Protocol on the application of the Charter of Fundamental Rights of the European Union to Poland and to the United Kingdom, these countries wanting to evade enforceable rights (OJ 17.12.2007 C 306/154-155):
PROTOCOL
ON THE APPLICATION OF THE CHARTER OF FUNDAMENTAL
RIGHTS OF THE EUROPEAN UNION TO POLAND AND TO THE
UNITED KINGDOM
THE HIGH CONTRACTING PARTIES,
WHEREAS in Article 6 of the Treaty on European Union, the Union recognises the rights, freedoms and principles set out in the Charter of Fundamental Rights of the European Union;
WHEREAS the Charter is to be applied in strict accordance with the provisions of the aforementioned Article 6 and Title VII of the Charter itself;
WHEREAS the aforementioned Article 6 requires the Charter to be applied and interpreted by the courts of Poland and of the United Kingdom strictly in accordance with the explanations referred to in that Article;
WHEREAS the Charter contains both rights and principles;
WHEREAS the Charter contains both provisions which are civil and political in character and those which are economic and social in character;
WHEREAS the Charter reaffirms the rights, freedoms and principles recognised in the Union and makes those rights more visible, but does not create new rights or principles;
RECALLING the obligations devolving upon Poland and the United Kingdom under the Treaty on European Union, the Treaty on the Functioning of the European Union, and Union law generally;
NOTING the wish of Poland and the United Kingdom to clarify certain aspects of the application of the Charter;
DESIROUS therefore of clarifying the application of the Charter in relation to the laws and administrative action of Poland and of the United Kingdom and of its justiciability within Poland and within the United Kingdom;
REAFFIRMING that references in this Protocol to the operation of specific provisions of the Charter are strictly without prejudice to the operation of other provisions of the Charter;
REAFFIRMING that this Protocol is without prejudice to the application of the Charter to other Member States;
REAFFIRMING that this Protocol is without prejudice to other obligations devolving upon Poland and the United Kingdom under the Treaty on European Union, the Treaty on the Functioning of the European Union, and Union law generally,
HAVE AGREED UPON the following provisions, which shall be annexed to the Treaty on European Union and to the Treaty on the Functioning of the European Union:
Article 1
1. The Charter does not extend the ability of the Court of Justice of the European Union, or any court or tribunal of Poland or of the United Kingdom, to find that the laws, regulations or administrative provisions, practices or action of Poland or of the United Kingdom are inconsistent with the fundamental rights, freedoms and principles that it reaffirms.
2. In particular, and for the avoidance of doubt, nothing in Title IV of the Charter creates justiciable rights applicable to Poland or the United Kingdom except in so far as Poland or the United Kingdom has provided for such rights in its national law.
Article 2
To the extent that a provision of the Charter refers to national laws and practices, it shall only apply to Poland or the United Kingdom to the extent that the rights or principles that it contains are recognised in the law or practices of Poland or of the United Kingdom.
***
We have joint Declaration (number 1) concerning the Charter of Fundamental Rights of the
European Union, with one more reminder of the limited impact of the Charter (OJ 17.12.2007 C 306/247):
1. Declaration
The Charter of Fundamental Rights of the European Union, which has legally binding force, confirms the fundamental rights guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and as they result from the constitutional traditions common to the Member States.
The Charter does not extend the field of application of Union law beyond the powers of the Union or establish any new power or task for the Union, or modify powers and tasks as defined by the Treaties.
***
Citizens’ rights received special attention from two member state governments, leading to three additional declarations:
53. Declaration by the Czech Republic on the Charter of Fundamental Rights of the European Union
61. Declaration by the Republic of Poland on the Charter of Fundamental Rights of the European Union
62. Declaration by the Republic of Poland concerning the Protocol on the application of the Charter of Fundamental Rights of the European Union in relation to Poland and the United Kingdom
***
Combating discrimination is set to be a generally applicable principle of EU action.
Ralf Grahn
The Treaty of Lisbon introduces a horizontal aim to combat discrimination on specific grounds in the policies and activities of the European Union.
***
The intergovernmental conference (IGC 2007) inserted a new provision having general applicability into the Treaty of Lisbon (ToL), more precisely the Treaty establishing the European Community (TEC), renamed the Treaty on the Functioning of the European Union (TFEU). See OJ 17.12.2007 C 306/48:
Article 5b TFEU (ToL), to be renumbered Article 10 TFEU
In defining and implementing its policies and activities, the Union shall aim to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation.
***
Reading is fine, but understanding is better. We set out to see the origins of this new transversal provision, by looking first at the Treaty establishing a Constitution for Europe, where Title I Provisions of general application of Part III The policies and functioning of the Union has this to offer (OJ 16.12.2004 C 310/55):
Article III-118 Constitution
In defining and implementing the policies and activities referred to in this Part, the Union shall aim to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation.
***
We are able to see that the only difference is of an editorial nature, the substance including the specific grounds for discrimination to combat being identical in the Lisbon Treaty and the Constitution.
***
If we find something in the Constitutional Treaty, there is cause to take a peek at what the European Convention proposed in the draft Treaty establishing a Constitution for Europe. Part III The policies and functioning of the Union, and its Title I Clauses of general application offer us this provision (OJ 18.7.2003 C 169/29):
Article III-3 Draft Constitution
In defining and implementing the policies and activities referred to in this Part, the Union shall aim to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation.
***
The draft Constitution and the Constitution are identical in this respect.
***
Article III-3 of the draft Constitution has been described as a new horizontal provision, which would apply to the Constitution and the Lisbon Reform Treaty, as well.
Let us see if there are any points of reference in the current treaties, the TEU and the TEC.
***
One provision to check would seem to be Article 6 TEU, especially paragraph 2 with its reference to the European Convention for the Protection of Human Rights and Fundamental Freedoms (the latest consolidated version of the current TEU and TEC being found in OJ 29.12.2006 C 321 E/1, with Article 6 TEU on page 12):
Article 6 TEU
1. The Union is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law, principles which are common to the Member States.
2. The Union shall respect fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950 and as they result from the constitutional traditions common to the Member States, as general principles of Community law.
3. The Union shall respect the national identities of its Member States.
4. The Union shall provide itself with the means necessary to attain its objectives and carry through its policies.
***
The European Human Rights Convention, consolidated with later amending protocols, can be found on the web pages of the Council of Europe:
http://conventions.coe.int/Treaty/Commun/QueVoulezVous.asp?NT=005&CM=7&DF=2/25/2008&CL=ENG
Our attention turns to Article 14, as amended by Protocol 11:
Article 14 – Prohibition of discrimination
The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.
***
On the face of it, most of the specific grounds for prohibited discrimination seem to be shared by the European Human Rights Convention and the Lisbon Treaty, but a more thorough examination would be required to ascertain if, for instance, ‘birth or other status’ have been given the same scope by the European Court of Human Rights as ‘disability, age or sexual orientation’ enumerated in the Treaty of Lisbon.
***
One of the mainstays of the common market has been the prohibition of discrimination on grounds of nationality, to be found in the existing Article 12 TEC (OJ 29.12.2006 C 321 E/48):
Article 12 TEC
Within the scope of application of this Treaty, and without prejudice to any special provisions contained therein, any discrimination on grounds of nationality shall be prohibited.
The Council, acting in accordance with the procedure referred to in Article 251, may adopt rules designed to prohibit such discrimination.
***
We come even closer when we take a look at the specific grounds for discrimination to combat in the current Article 13 TEC:
Article 13 TEC
1. Without prejudice to the other provisions of this Treaty and within the limits of the powers conferred by it upon the Community, the Council, acting unanimously on a proposal from the
Commission and after consulting 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.
2. By way of derogation from paragraph 1, when the Council adopts Community incentive measures, excluding any harmonisation of the laws and regulations of the Member States, to support action taken by the Member States in order to contribute to the achievement of the objectives referred to in paragraph 1, it shall act in accordance with the procedure referred to in Article 251.
***
The grounds mentioned in Article 13 TEC and Article 5b TFEU (ToL) are identical, and more than a prohibition against discrimination the current treaty envisions active action to combat discrimination.
We are going to leave the question open for now, if the present requirement for unanimity is upheld in the Treaty of Lisbon.
***
The fundamental rights of the citizens of the European Union (or universally), caused a fair amount of commotion among member states’ governments. This warrants a closer look at the Charter of Fundamental Rights and related expressions of concern.
We take note of the fact that the Charter of Fundamental Rights of the European Union includes a prohibition of discrimination, by the EU institutions and the member states when implementing EU law, on various grounds, many of them fairly familiar by now (OJ 14.12.2007 C 303/7):
Article 21 Charter
Non-discrimination
1. Any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation shall be prohibited.
2. Within the scope of application of the Treaties and without prejudice to any of their specific provisions, any discrimination on grounds of nationality shall be prohibited.
***
We refer the interested reader to the Explanations relating to the Charter of Fundamental Rights (OJ 14.12.2007 C 303/24):
Explanation on Article 21 — Non-discrimination
Paragraph 1 draws on Article 13 of the EC Treaty, now replaced by Article 19 of the Treaty on the Functioning of the European Union, Article 14 of the ECHR and Article 11 of the Convention on Human Rights and Biomedicine as regards genetic heritage. In so far as this corresponds to Article 14 of the ECHR, it applies in compliance with it.
There is no contradiction or incompatibility between paragraph 1 and Article 19 of the Treaty on the Functioning of the European Union which has a different scope and purpose: Article 19 confers power on the Union to adopt legislative acts, including harmonisation of the Member States' laws and regulations, to combat certain forms of discrimination, listed exhaustively in that Article. Such legislation may cover action of Member State authorities (as well as relations between private individuals) in any area within the limits of the Union's powers. In contrast, the provision in Article 21(1) does not create any power to enact anti-discrimination laws in these areas of Member State or private action, nor does it lay down a sweeping ban of discrimination in such wide-ranging areas. Instead, it only addresses discriminations by the institutions and bodies of the Union themselves, when exercising powers conferred under the Treaties, and by Member States only when they are implementing Union law. Paragraph 1 therefore does not alter the extent of powers granted under Article 19 nor the interpretation given to that Article.
Paragraph 2 corresponds to the first paragraph of Article 18 of the Treaty on the Functioning of the European Union and must be applied in compliance with that Article.
***
Naturally, should we be confronted with a problem pertaining to the Charter, we have to be aware of the Protocol on the application of the Charter of Fundamental Rights of the European Union to Poland and to the United Kingdom, these countries wanting to evade enforceable rights (OJ 17.12.2007 C 306/154-155):
PROTOCOL
ON THE APPLICATION OF THE CHARTER OF FUNDAMENTAL
RIGHTS OF THE EUROPEAN UNION TO POLAND AND TO THE
UNITED KINGDOM
THE HIGH CONTRACTING PARTIES,
WHEREAS in Article 6 of the Treaty on European Union, the Union recognises the rights, freedoms and principles set out in the Charter of Fundamental Rights of the European Union;
WHEREAS the Charter is to be applied in strict accordance with the provisions of the aforementioned Article 6 and Title VII of the Charter itself;
WHEREAS the aforementioned Article 6 requires the Charter to be applied and interpreted by the courts of Poland and of the United Kingdom strictly in accordance with the explanations referred to in that Article;
WHEREAS the Charter contains both rights and principles;
WHEREAS the Charter contains both provisions which are civil and political in character and those which are economic and social in character;
WHEREAS the Charter reaffirms the rights, freedoms and principles recognised in the Union and makes those rights more visible, but does not create new rights or principles;
RECALLING the obligations devolving upon Poland and the United Kingdom under the Treaty on European Union, the Treaty on the Functioning of the European Union, and Union law generally;
NOTING the wish of Poland and the United Kingdom to clarify certain aspects of the application of the Charter;
DESIROUS therefore of clarifying the application of the Charter in relation to the laws and administrative action of Poland and of the United Kingdom and of its justiciability within Poland and within the United Kingdom;
REAFFIRMING that references in this Protocol to the operation of specific provisions of the Charter are strictly without prejudice to the operation of other provisions of the Charter;
REAFFIRMING that this Protocol is without prejudice to the application of the Charter to other Member States;
REAFFIRMING that this Protocol is without prejudice to other obligations devolving upon Poland and the United Kingdom under the Treaty on European Union, the Treaty on the Functioning of the European Union, and Union law generally,
HAVE AGREED UPON the following provisions, which shall be annexed to the Treaty on European Union and to the Treaty on the Functioning of the European Union:
Article 1
1. The Charter does not extend the ability of the Court of Justice of the European Union, or any court or tribunal of Poland or of the United Kingdom, to find that the laws, regulations or administrative provisions, practices or action of Poland or of the United Kingdom are inconsistent with the fundamental rights, freedoms and principles that it reaffirms.
2. In particular, and for the avoidance of doubt, nothing in Title IV of the Charter creates justiciable rights applicable to Poland or the United Kingdom except in so far as Poland or the United Kingdom has provided for such rights in its national law.
Article 2
To the extent that a provision of the Charter refers to national laws and practices, it shall only apply to Poland or the United Kingdom to the extent that the rights or principles that it contains are recognised in the law or practices of Poland or of the United Kingdom.
***
We have joint Declaration (number 1) concerning the Charter of Fundamental Rights of the
European Union, with one more reminder of the limited impact of the Charter (OJ 17.12.2007 C 306/247):
1. Declaration
The Charter of Fundamental Rights of the European Union, which has legally binding force, confirms the fundamental rights guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and as they result from the constitutional traditions common to the Member States.
The Charter does not extend the field of application of Union law beyond the powers of the Union or establish any new power or task for the Union, or modify powers and tasks as defined by the Treaties.
***
Citizens’ rights received special attention from two member state governments, leading to three additional declarations:
53. Declaration by the Czech Republic on the Charter of Fundamental Rights of the European Union
61. Declaration by the Republic of Poland on the Charter of Fundamental Rights of the European Union
62. Declaration by the Republic of Poland concerning the Protocol on the application of the Charter of Fundamental Rights of the European Union in relation to Poland and the United Kingdom
***
Combating discrimination is set to be a generally applicable principle of EU action.
Ralf Grahn
Sunday, 24 February 2008
EU Lisbon Treaty: Ratification and consolidation in Finland
The government of Finland has communicated its intentions concerning the Treaty of Lisbon in two regards:
The ratification bill for the Lisbon Treaty is going to be sent to parliament in March.
The promised consolidated versions of the Lisbon Reform Treaty, in Finnish and Swedish, have now been given a more precise publishing date, by mid April.
***
Since Finland belonged to the two thirds majority of EU member states that approved the Constitutional Treaty, renewed parliamentary ratification of the ‘Constitution Light’ would not appear to cause serious problems.
The consolidated Finnish language version of the Lisbon Treaty is going to be a real addition, whereas there is a complete Swedish version available from Sieps, the Swedish Institute for European Policy Studies,
www.sieps.se
and their new web pages on the Lisbon Treaty
http://www.lissabonfordraget.se/
As reported earlier, SNS Förlag in Sweden is going to publish a pocket version of the amending treaties.
Ralf Grahn
Here is the Finnish government’s press release in its entirety:
Government Communications Unit
22.2.2008 13.16
Preparations for the implementation of the Lisbon Treaty
Preparations for the implementation of the EU Treaty of Lisbon have begun during the Slovenian Presidency which started on 1 January 2008. Work will continue during the French Presidency during the latter half of 2008. The purpose is to prepare for the entry into force of the Treaty. Preparations concern issues with details that were left to be adopted at a later stage.
The EU Member States signed the Treaty of Lisbon which reforms the Union’s functioning in December 2007. The aim is to have the Treaty take effect as of the beginning of 2009.
In January, the Slovenian Presidency presented a work programme of the themes that need to be discussed before the entry into force of the Treaty. The work programme, which covers, for example, Justice and Home Affairs, institutional issues and issues concerning external relations and defence, will be discussed at the EU Ambassadors’ meetings during spring 2008. Discussions will cover, for example, the procedures and conditions to be applied to citizens’ initiatives, the transfer of the ongoing legislative proposals under the ordinary legislative procedure and the role of the permanent President of the European Council.
Finland is to submit a government proposal on the Lisbon Treaty to the Finnish Parliament in March 2008. Parliament will make a decision on the ratification of the Treaty.
A more reader-friendly, consolidated version is currently under compilation of the text of the Lisbon Treaty and of the ensuing changes to the basic treaties. The consolidated version will be a document integrating the articles of the various Treaties in one text. Finnish and Swedish versions are to be issued by mid-April.
The entry into force of the Lisbon Treaty as of the beginning of 2009 requires that all Member States have ratified the Treaty by that date.
Further information: Arno Liukko, Counsellor, Government Secretariat for EU Affairs, tel. +358 9 1602 2190
The ratification bill for the Lisbon Treaty is going to be sent to parliament in March.
The promised consolidated versions of the Lisbon Reform Treaty, in Finnish and Swedish, have now been given a more precise publishing date, by mid April.
***
Since Finland belonged to the two thirds majority of EU member states that approved the Constitutional Treaty, renewed parliamentary ratification of the ‘Constitution Light’ would not appear to cause serious problems.
The consolidated Finnish language version of the Lisbon Treaty is going to be a real addition, whereas there is a complete Swedish version available from Sieps, the Swedish Institute for European Policy Studies,
www.sieps.se
and their new web pages on the Lisbon Treaty
http://www.lissabonfordraget.se/
As reported earlier, SNS Förlag in Sweden is going to publish a pocket version of the amending treaties.
Ralf Grahn
Here is the Finnish government’s press release in its entirety:
Government Communications Unit
22.2.2008 13.16
Preparations for the implementation of the Lisbon Treaty
Preparations for the implementation of the EU Treaty of Lisbon have begun during the Slovenian Presidency which started on 1 January 2008. Work will continue during the French Presidency during the latter half of 2008. The purpose is to prepare for the entry into force of the Treaty. Preparations concern issues with details that were left to be adopted at a later stage.
The EU Member States signed the Treaty of Lisbon which reforms the Union’s functioning in December 2007. The aim is to have the Treaty take effect as of the beginning of 2009.
In January, the Slovenian Presidency presented a work programme of the themes that need to be discussed before the entry into force of the Treaty. The work programme, which covers, for example, Justice and Home Affairs, institutional issues and issues concerning external relations and defence, will be discussed at the EU Ambassadors’ meetings during spring 2008. Discussions will cover, for example, the procedures and conditions to be applied to citizens’ initiatives, the transfer of the ongoing legislative proposals under the ordinary legislative procedure and the role of the permanent President of the European Council.
Finland is to submit a government proposal on the Lisbon Treaty to the Finnish Parliament in March 2008. Parliament will make a decision on the ratification of the Treaty.
A more reader-friendly, consolidated version is currently under compilation of the text of the Lisbon Treaty and of the ensuing changes to the basic treaties. The consolidated version will be a document integrating the articles of the various Treaties in one text. Finnish and Swedish versions are to be issued by mid-April.
The entry into force of the Lisbon Treaty as of the beginning of 2009 requires that all Member States have ratified the Treaty by that date.
Further information: Arno Liukko, Counsellor, Government Secretariat for EU Affairs, tel. +358 9 1602 2190
EU TFEU: They work for us?
How should you approach the Treaty of Lisbon? Is it the rehashed Constitution, or should we rather look at how the Lisbon Treaty amends and improves the existing EU and EC Treaties?
***
In the Treaty of Lisbon (ToL) the intergovernmental conference (IGC 2007) decided to insert a new provision having general application into the Treaty establishing the European Community (TEC), renamed the Treaty on the Functioning of the European Union (TFEU). See OJ 17.12.2007 C 306/48:
17) The following Article 5a shall be inserted:
Article 5a TFEU (ToL), to be renumbered Article 9 TFEU
In defining and implementing its policies and activities, the Union shall take into account requirements linked to the promotion of a high level of employment, the guarantee of adequate social protection, the fight against social exclusion, and a high level of education, training and protection of human health.
***
This provision did not appear out of the blue, so we take a look at what the IGC 2004 agreed on three years earlier. In the Treaty establishing a Constitution for Europe, Part III The policies and functioning of the Union, Title I Provisions of general application, we find the following Article III-117 (OJ 16.12.2004 C 310/55):
Article III-117
In defining and implementing the policies and actions referred to in this Part, the Union shall take into account requirements linked to the promotion of a high level of employment, the guarantee of adequate social protection, the fight against social exclusion, and a high level of education, training and protection of human health.
***
The resemblance between the Constitution and the Lisbon Treaty is striking, but contrary to most instances we would look in vain for a corresponding Article proposed by the European Convention in the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169).
Here the IGC 2004 filled a void between the EU’s objectives on the one hand and its policies and actions on the other hand.
Thus, the IGC 2004 can be seen as the true originator of this provision, giving us an example of one of the few improvements authored by the intergovernmental conference when compared to the draft proposed by the European Convention.
***
We can now change tack, to offer another explanation of the new Article in the Lisbon Treaty. Given that the Lisbon Reform Treaty amends the existing Treaty on European Union (TEU) and the TEC, the origins of a provision can be sought in the current treaties.
This is what the UK Foreign and Commonwealth Office does in its Command Paper 7311 A comparative table of the current EC and EU Treaties as amended by the Treaty of Lisbon, concerning Article 9 (5a) TFEU (page 6):
“Draws on Article 2 TEU, and Articles 2, 127, 136, 137, 140, 149, 150 and 152 TEC.”
Earlier, the Explanatory Note has given us the following definition:
“Draws on – where a provision takes elements of existing provisions”
***
The diligent student may want to trace the elements from each of the Articles mentioned, but we are content to present the two main provisions for the sake of comparison, and as a convenient excuse to refresh our memory concerning the treaties in force.
First, we turn to the current Article 2 TEU on the Union’s objectives under Title I Common provisions (in the latest consolidated version, to be found in OJ 29.12.2006 C 321 E/11):
Article 2 TEU
The Union shall set itself the following objectives:
— to promote economic and social progress and a high level of employment and to achieve balanced and sustainable development, in particular through the creation of an area without internal frontiers, through the strengthening of economic and social cohesion and through the establishment of economic and monetary union, ultimately including a single currency in accordance with the provisions of this Treaty,
— to assert its identity on the international scene, in particular through the implementation of a common foreign and security policy including the progressive framing of a common defence policy, which might lead to a common defence, in accordance with the provisions of Article 17,
— to strengthen the protection of the rights and interests of the nationals of its Member States through the introduction of a citizenship of the Union,
— to maintain and develop the Union as an area of freedom, security and justice, in which the free movement of persons is assured in conjunction with appropriate measures with respect to external border controls, asylum, immigration and the prevention and combating of crime,
— to maintain in full the acquis communautaire and build on it with a view to considering to what extent the policies and forms of cooperation introduced by this Treaty may need to be revised with the aim of ensuring the effectiveness of the mechanisms and the institutions of the Community.
The objectives of the Union shall be achieved as provided in this Treaty and in accordance with the conditions and the timetable set out therein while respecting the principle of subsidiarity as defined in Article 5 of the Treaty establishing the European Community.
***
Second, we rehearse the current Article 2 TEC, in Part One, Principles (OJ, page 44):
Article 2 TEC
The Community shall have as its task, by establishing a common market and an economic and monetary union and by implementing common policies or activities referred to in Articles 3 and 4, to promote throughout the Community a harmonious, balanced and sustainable development of economic activities, a high level of employment and of social protection, equality between men and women, sustainable and non-inflationary growth, a high degree of competitiveness and convergence of economic performance, a high level of protection and improvement of the quality of the environment, the raising of the standard of living and quality of life, and economic and social cohesion and solidarity among Member States.
***
Without advancing further into the provisions mentioned by Cm 7311, we notice that the objectives of the EU, with the catch-all phrase of ‘economic and social progress’ and ‘a high level of employment’ as well as ‘economic and social cohesion’, and the tasks of the EC with ‘a harmonious, balanced and sustainable development of economic activities, a high level of employment and of social protection’ offer us enough to go on to believe that the rest of Article 5a TFEU (ToL) can plausibly be explained to draw on the provisions mentioned.
In conclusion, we can say that the comparison depends on your choice of angle.
***
There are undeniable similarities between the Constitution and the Lisbon Treaty, since the objective of the IGC 2007 was to preserve much of the advances made by the IGC 2004.
On the other hand, the readers of a book or the audience at a concert are usually more interested in the work published or performed than in the various drafts or the stages of rehearsal that preceded their experience. These are, more often than not, the domain of literary researchers or musicologists, not the public at large.
***
Regardless, I presume that ‘a high level of employment, the guarantee of adequate social protection, the fight against social exclusion, and a high level of education, training and protection of human health’ would find favour with most citizens of the European Union.
Can we truly say of the institutions of the EU: They work for us?
Ralf Grahn
Source:
Foreign and Commonwealth Office: A comparative table of the current EC and EU Treaties as amended by the Treaty of Lisbon; Command Paper (Cm) 7311; 21 January 2008;
http://www.official-documents.gov.uk/document/cm73/7311/7311.asp
***
In the Treaty of Lisbon (ToL) the intergovernmental conference (IGC 2007) decided to insert a new provision having general application into the Treaty establishing the European Community (TEC), renamed the Treaty on the Functioning of the European Union (TFEU). See OJ 17.12.2007 C 306/48:
17) The following Article 5a shall be inserted:
Article 5a TFEU (ToL), to be renumbered Article 9 TFEU
In defining and implementing its policies and activities, the Union shall take into account requirements linked to the promotion of a high level of employment, the guarantee of adequate social protection, the fight against social exclusion, and a high level of education, training and protection of human health.
***
This provision did not appear out of the blue, so we take a look at what the IGC 2004 agreed on three years earlier. In the Treaty establishing a Constitution for Europe, Part III The policies and functioning of the Union, Title I Provisions of general application, we find the following Article III-117 (OJ 16.12.2004 C 310/55):
Article III-117
In defining and implementing the policies and actions referred to in this Part, the Union shall take into account requirements linked to the promotion of a high level of employment, the guarantee of adequate social protection, the fight against social exclusion, and a high level of education, training and protection of human health.
***
The resemblance between the Constitution and the Lisbon Treaty is striking, but contrary to most instances we would look in vain for a corresponding Article proposed by the European Convention in the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169).
Here the IGC 2004 filled a void between the EU’s objectives on the one hand and its policies and actions on the other hand.
Thus, the IGC 2004 can be seen as the true originator of this provision, giving us an example of one of the few improvements authored by the intergovernmental conference when compared to the draft proposed by the European Convention.
***
We can now change tack, to offer another explanation of the new Article in the Lisbon Treaty. Given that the Lisbon Reform Treaty amends the existing Treaty on European Union (TEU) and the TEC, the origins of a provision can be sought in the current treaties.
This is what the UK Foreign and Commonwealth Office does in its Command Paper 7311 A comparative table of the current EC and EU Treaties as amended by the Treaty of Lisbon, concerning Article 9 (5a) TFEU (page 6):
“Draws on Article 2 TEU, and Articles 2, 127, 136, 137, 140, 149, 150 and 152 TEC.”
Earlier, the Explanatory Note has given us the following definition:
“Draws on – where a provision takes elements of existing provisions”
***
The diligent student may want to trace the elements from each of the Articles mentioned, but we are content to present the two main provisions for the sake of comparison, and as a convenient excuse to refresh our memory concerning the treaties in force.
First, we turn to the current Article 2 TEU on the Union’s objectives under Title I Common provisions (in the latest consolidated version, to be found in OJ 29.12.2006 C 321 E/11):
Article 2 TEU
The Union shall set itself the following objectives:
— to promote economic and social progress and a high level of employment and to achieve balanced and sustainable development, in particular through the creation of an area without internal frontiers, through the strengthening of economic and social cohesion and through the establishment of economic and monetary union, ultimately including a single currency in accordance with the provisions of this Treaty,
— to assert its identity on the international scene, in particular through the implementation of a common foreign and security policy including the progressive framing of a common defence policy, which might lead to a common defence, in accordance with the provisions of Article 17,
— to strengthen the protection of the rights and interests of the nationals of its Member States through the introduction of a citizenship of the Union,
— to maintain and develop the Union as an area of freedom, security and justice, in which the free movement of persons is assured in conjunction with appropriate measures with respect to external border controls, asylum, immigration and the prevention and combating of crime,
— to maintain in full the acquis communautaire and build on it with a view to considering to what extent the policies and forms of cooperation introduced by this Treaty may need to be revised with the aim of ensuring the effectiveness of the mechanisms and the institutions of the Community.
The objectives of the Union shall be achieved as provided in this Treaty and in accordance with the conditions and the timetable set out therein while respecting the principle of subsidiarity as defined in Article 5 of the Treaty establishing the European Community.
***
Second, we rehearse the current Article 2 TEC, in Part One, Principles (OJ, page 44):
Article 2 TEC
The Community shall have as its task, by establishing a common market and an economic and monetary union and by implementing common policies or activities referred to in Articles 3 and 4, to promote throughout the Community a harmonious, balanced and sustainable development of economic activities, a high level of employment and of social protection, equality between men and women, sustainable and non-inflationary growth, a high degree of competitiveness and convergence of economic performance, a high level of protection and improvement of the quality of the environment, the raising of the standard of living and quality of life, and economic and social cohesion and solidarity among Member States.
***
Without advancing further into the provisions mentioned by Cm 7311, we notice that the objectives of the EU, with the catch-all phrase of ‘economic and social progress’ and ‘a high level of employment’ as well as ‘economic and social cohesion’, and the tasks of the EC with ‘a harmonious, balanced and sustainable development of economic activities, a high level of employment and of social protection’ offer us enough to go on to believe that the rest of Article 5a TFEU (ToL) can plausibly be explained to draw on the provisions mentioned.
In conclusion, we can say that the comparison depends on your choice of angle.
***
There are undeniable similarities between the Constitution and the Lisbon Treaty, since the objective of the IGC 2007 was to preserve much of the advances made by the IGC 2004.
On the other hand, the readers of a book or the audience at a concert are usually more interested in the work published or performed than in the various drafts or the stages of rehearsal that preceded their experience. These are, more often than not, the domain of literary researchers or musicologists, not the public at large.
***
Regardless, I presume that ‘a high level of employment, the guarantee of adequate social protection, the fight against social exclusion, and a high level of education, training and protection of human health’ would find favour with most citizens of the European Union.
Can we truly say of the institutions of the EU: They work for us?
Ralf Grahn
Source:
Foreign and Commonwealth Office: A comparative table of the current EC and EU Treaties as amended by the Treaty of Lisbon; Command Paper (Cm) 7311; 21 January 2008;
http://www.official-documents.gov.uk/document/cm73/7311/7311.asp
Saturday, 23 February 2008
EU: Complete Dutch consolidated Lisbon Treaty
I want to thank Anonymous who brought to our attention that the government of the Netherlands has published a complete Dutch version of the Treaty of Lisbon on the web pages of the Foreign Ministry,
www.minbuza.nl
The web pages offer us the TEU, TFEU, Euratom Treaty, the Protocols and the Final Act:
1. Verdrag betreffende de Europese Unie
2. Verdrag betreffende de werking van de Europese Unie (voorheen EG-Verdrag)
3. Verdrag tot oprichting van de Europese Gemeenschap voor Atoomenergie (Euratom)
4. Protocollen gehecht aan het Verdrag betreffende de Europese Unie, het Verdrag betreffende de werking van de Europese Unie en/of het Verdrag tot oprichting van de Europese Gemeenschap voor Atoomenergie
5. Slotakte bij het Verdrag van Lissabon, inclusief Verklaringen
Earlier we reported on the private Dutch consolidation compiled by René Barents.
For this and the other consolidated language versions I am aware of, see the latest comprehensive update, the post Consolidated Lisbon Treaty Update (16 February 2008).
Additional information from you, dear readers, is eagerly awaited.
Ralf Grahn
Source:
Nederlands Ministerie van Buitenlands Zaken: Geactualiseerde versies van de Verdragen van de Europese Unie nu beschikbaar; 22 feb 2008;
http://www.minbuza.nl/verdragen/nl/Geconsolideerde_EU_en_EG_Verdragen
www.minbuza.nl
The web pages offer us the TEU, TFEU, Euratom Treaty, the Protocols and the Final Act:
1. Verdrag betreffende de Europese Unie
2. Verdrag betreffende de werking van de Europese Unie (voorheen EG-Verdrag)
3. Verdrag tot oprichting van de Europese Gemeenschap voor Atoomenergie (Euratom)
4. Protocollen gehecht aan het Verdrag betreffende de Europese Unie, het Verdrag betreffende de werking van de Europese Unie en/of het Verdrag tot oprichting van de Europese Gemeenschap voor Atoomenergie
5. Slotakte bij het Verdrag van Lissabon, inclusief Verklaringen
Earlier we reported on the private Dutch consolidation compiled by René Barents.
For this and the other consolidated language versions I am aware of, see the latest comprehensive update, the post Consolidated Lisbon Treaty Update (16 February 2008).
Additional information from you, dear readers, is eagerly awaited.
Ralf Grahn
Source:
Nederlands Ministerie van Buitenlands Zaken: Geactualiseerde versies van de Verdragen van de Europese Unie nu beschikbaar; 22 feb 2008;
http://www.minbuza.nl/verdragen/nl/Geconsolideerde_EU_en_EG_Verdragen
EU TFEU: Gender equality
A new European political star was born. In retrospect the defining moment must have been when she addressed a packed audience at her final election rally with these resounding words:
If I am elected, I am going to do my utmost to repeal paragraph 1 of Article 3, leave paragraph 2 unnumbered and replace the words ‘the activities referred to in this Article’ by ‘its activities’.
[Wild cheers.]
***
Am I pulling your leg? Yes and no.
No politician in her right mind would address even her most devoted followers like this.
On the other hand, this is the direct result of the decisions made by the leading lights of European Union politics, the heads of state or government.
Unbelievable, you say. You need proof, do you?
Can there be anything more convincing than the verification offered by the Official Journal on the unanimous agreement of our national leaders?
***
Here is what the intergovernmental conference (IGC 2007) had to say in the Treaty of Lisbon (ToL) on Article 3 of the Treaty establishing the European Community (TEC), renamed the Treaty on the Functioning of the European Union (TFEU). See OJ 17.12.2007 C 306/48:
14) Paragraph 1 of Article 3 shall be repealed. Paragraph 2 shall be left unnumbered, and the words ‘the activities referred to in this Article,’ shall be replaced by ‘its activities,’.
***
You are excused if you have not grasped their noble intentions. For that we need an excerpt from the current Article 3 TEC (in the latest consolidated version of the TEU and the TEC, OJ 29.12.2006 C 321 E/44-45):
Article 3 TEC
1. For the purposes set out in Article 2, the activities of the Community shall include, as provided in this Treaty and in accordance with the timetable set out therein:
(a) the prohibition, as between Member States, of customs duties and quantitative restrictions on the import and export of goods, and of all other measures having equivalent effect;
(b) a common commercial policy;
(c) an internal market characterised by the abolition, as between Member States, of obstacles to the free movement of goods, persons, services and capital;
(d) measures concerning the entry and movement of persons as provided for in Title IV;
(e) a common policy in the sphere of agriculture and fisheries;
(f) a common policy in the sphere of transport;
(g) a system ensuring that competition in the internal market is not distorted;
(h) the approximation of the laws of Member States to the extent required for the functioning of the common market;
(i) the promotion of coordination between employment policies of the Member States with a view to enhancing their effectiveness by developing a coordinated strategy for employment;
(j) a policy in the social sphere comprising a European Social Fund;
(k) the strengthening of economic and social cohesion;
(l) a policy in the sphere of the environment;
(m) the strengthening of the competitiveness of Community industry;
(n) the promotion of research and technological development;
(o) encouragement for the establishment and development of trans-European networks;
(p) a contribution to the attainment of a high level of health protection;
(q) a contribution to education and training of quality and to the flowering of the cultures of
the Member States;
(r) a policy in the sphere of development cooperation;
(s) the association of the overseas countries and territories in order to increase trade and promote jointly economic and social development;
(t) a contribution to the strengthening of consumer protection;
(u) measures in the spheres of energy, civil protection and tourism.
2. In all the activities referred to in this Article, the Community shall aim to eliminate inequalities, and to promote equality, between men and women.
***
What a delightful way to refresh our memories concerning the existing activities of the European Community (EC), rewritten elsewhere in the Lisbon Treaty.
Having scrapped paragraph 1 and eliminated the number from paragraph 2, we seem to end up with the following:
Article 3 TFEU (ToL), to be renumbered Article 8 TFEU
In all its activities, the Union shall aim to eliminate inequalities, and to promote equality, between men and women.
***
We have a sentence which makes sense. Rather noble and delightful in the end, don’t you agree?
However demanding the quest for equality, one could almost say of the IGC 2007: Easier done than said.
***
We take a look at the intermediary stages, with the European Convention and its draft Treaty establishing a Constitution for Europe, under Title I Clauses of general application (OJ 18.7.2003 C 169/29):
Article III-2
In all the activities referred to in this Part, the Union shall aim to eliminate inequalities, and to promote equality, between men and women.
***
We turn to the Treaty establishing a Constitution for Europe, where the corresponding Article is (OJ 16.12.2004 C 310/55):
Article III-116
In all the activities referred to in this Part, the Union shall aim to eliminate inequalities, and to
promote equality, between women and men.
***
We have seen that we have an unbroken line of provisions from the current TEC, via the draft Constitution and the Constitution until the Lisbon Reform Treaty.
Article 3 TFEU (ToL) addresses all of the institutions and all of the activities of the EU.
Eliminating gender inequality (sex discrimination) is a general principle of Union law.
Promotion of equality requires positive action and secondary legislation.
***
Domestic violence
The Lisbon Treaty takes up a third aspect of gender equality at a political level.
The Final Act of the Treaty of Lisbon contains the relevant Declaration 19, which the IGC 2007 took over word for word from the Constitutional Treaty (where it was numbered 13. Declaration on Article III-116). See OJ 17.12.2007 C 306/255:
19. Declaration on Article 3 of the Treaty on the Functioning of the European Union
The Conference agrees that, in its general efforts to eliminate inequalities between women and men, the Union will aim in its different policies to combat all kinds of domestic violence. The Member States should take all necessary measures to prevent and punish these criminal acts and to support and protect the victims.
***
Part and parcel of the EU legal system, gender equality is something every acceding country has to buy into.
Ralf Grahn
If I am elected, I am going to do my utmost to repeal paragraph 1 of Article 3, leave paragraph 2 unnumbered and replace the words ‘the activities referred to in this Article’ by ‘its activities’.
[Wild cheers.]
***
Am I pulling your leg? Yes and no.
No politician in her right mind would address even her most devoted followers like this.
On the other hand, this is the direct result of the decisions made by the leading lights of European Union politics, the heads of state or government.
Unbelievable, you say. You need proof, do you?
Can there be anything more convincing than the verification offered by the Official Journal on the unanimous agreement of our national leaders?
***
Here is what the intergovernmental conference (IGC 2007) had to say in the Treaty of Lisbon (ToL) on Article 3 of the Treaty establishing the European Community (TEC), renamed the Treaty on the Functioning of the European Union (TFEU). See OJ 17.12.2007 C 306/48:
14) Paragraph 1 of Article 3 shall be repealed. Paragraph 2 shall be left unnumbered, and the words ‘the activities referred to in this Article,’ shall be replaced by ‘its activities,’.
***
You are excused if you have not grasped their noble intentions. For that we need an excerpt from the current Article 3 TEC (in the latest consolidated version of the TEU and the TEC, OJ 29.12.2006 C 321 E/44-45):
Article 3 TEC
1. For the purposes set out in Article 2, the activities of the Community shall include, as provided in this Treaty and in accordance with the timetable set out therein:
(a) the prohibition, as between Member States, of customs duties and quantitative restrictions on the import and export of goods, and of all other measures having equivalent effect;
(b) a common commercial policy;
(c) an internal market characterised by the abolition, as between Member States, of obstacles to the free movement of goods, persons, services and capital;
(d) measures concerning the entry and movement of persons as provided for in Title IV;
(e) a common policy in the sphere of agriculture and fisheries;
(f) a common policy in the sphere of transport;
(g) a system ensuring that competition in the internal market is not distorted;
(h) the approximation of the laws of Member States to the extent required for the functioning of the common market;
(i) the promotion of coordination between employment policies of the Member States with a view to enhancing their effectiveness by developing a coordinated strategy for employment;
(j) a policy in the social sphere comprising a European Social Fund;
(k) the strengthening of economic and social cohesion;
(l) a policy in the sphere of the environment;
(m) the strengthening of the competitiveness of Community industry;
(n) the promotion of research and technological development;
(o) encouragement for the establishment and development of trans-European networks;
(p) a contribution to the attainment of a high level of health protection;
(q) a contribution to education and training of quality and to the flowering of the cultures of
the Member States;
(r) a policy in the sphere of development cooperation;
(s) the association of the overseas countries and territories in order to increase trade and promote jointly economic and social development;
(t) a contribution to the strengthening of consumer protection;
(u) measures in the spheres of energy, civil protection and tourism.
2. In all the activities referred to in this Article, the Community shall aim to eliminate inequalities, and to promote equality, between men and women.
***
What a delightful way to refresh our memories concerning the existing activities of the European Community (EC), rewritten elsewhere in the Lisbon Treaty.
Having scrapped paragraph 1 and eliminated the number from paragraph 2, we seem to end up with the following:
Article 3 TFEU (ToL), to be renumbered Article 8 TFEU
In all its activities, the Union shall aim to eliminate inequalities, and to promote equality, between men and women.
***
We have a sentence which makes sense. Rather noble and delightful in the end, don’t you agree?
However demanding the quest for equality, one could almost say of the IGC 2007: Easier done than said.
***
We take a look at the intermediary stages, with the European Convention and its draft Treaty establishing a Constitution for Europe, under Title I Clauses of general application (OJ 18.7.2003 C 169/29):
Article III-2
In all the activities referred to in this Part, the Union shall aim to eliminate inequalities, and to promote equality, between men and women.
***
We turn to the Treaty establishing a Constitution for Europe, where the corresponding Article is (OJ 16.12.2004 C 310/55):
Article III-116
In all the activities referred to in this Part, the Union shall aim to eliminate inequalities, and to
promote equality, between women and men.
***
We have seen that we have an unbroken line of provisions from the current TEC, via the draft Constitution and the Constitution until the Lisbon Reform Treaty.
Article 3 TFEU (ToL) addresses all of the institutions and all of the activities of the EU.
Eliminating gender inequality (sex discrimination) is a general principle of Union law.
Promotion of equality requires positive action and secondary legislation.
***
Domestic violence
The Lisbon Treaty takes up a third aspect of gender equality at a political level.
The Final Act of the Treaty of Lisbon contains the relevant Declaration 19, which the IGC 2007 took over word for word from the Constitutional Treaty (where it was numbered 13. Declaration on Article III-116). See OJ 17.12.2007 C 306/255:
19. Declaration on Article 3 of the Treaty on the Functioning of the European Union
The Conference agrees that, in its general efforts to eliminate inequalities between women and men, the Union will aim in its different policies to combat all kinds of domestic violence. The Member States should take all necessary measures to prevent and punish these criminal acts and to support and protect the victims.
***
Part and parcel of the EU legal system, gender equality is something every acceding country has to buy into.
Ralf Grahn
Friday, 22 February 2008
European Parliament: Fraud or worse?
It is bad enough if there has been widespread misuse of funds by members of the European Parliament. It would be far worse if the European Parliament does not act swiftly to put things right.
First, the EP’s leadership should announce when the complete findings of the report on alleged misappropriations is to be put in the public domain. Yes, complete and unsanitized.
Second, the EP should presently tell the public how it is going to proceed to bring the culprits to justice and to eradicate further abuse of public funds.
Third, the EP should report openly and extensively on the results of its actions.
***
Fraud is bad enough, and it should rightly miscredit guilty parties and lead to court action, if such is warranted. Cover up by the EP would miscredit the whole institution.
Only swift and decisive action can restore faith in the European Parliament as the representative body of 490 million EU citizens.
Ralf Grahn
P.S. Please, inform us if action has been taken.
P.S. II, Later addition: Having tried, in vain, to find 'crisis communication' of the web site of the European Parliament, I sent the following request to the EP's Press Office:
A little while ago I tried to find information on the EP's web site on allegations of misappropriation of public funds by members of the European Parliament.
A situation like this would require swift and decisive information from any institution.
Not finding any, I beg you to inform me when action is taken in order to present the situation as fairly as possible to the readers of my blog.
Best regards,
Ralf Grahn
First, the EP’s leadership should announce when the complete findings of the report on alleged misappropriations is to be put in the public domain. Yes, complete and unsanitized.
Second, the EP should presently tell the public how it is going to proceed to bring the culprits to justice and to eradicate further abuse of public funds.
Third, the EP should report openly and extensively on the results of its actions.
***
Fraud is bad enough, and it should rightly miscredit guilty parties and lead to court action, if such is warranted. Cover up by the EP would miscredit the whole institution.
Only swift and decisive action can restore faith in the European Parliament as the representative body of 490 million EU citizens.
Ralf Grahn
P.S. Please, inform us if action has been taken.
P.S. II, Later addition: Having tried, in vain, to find 'crisis communication' of the web site of the European Parliament, I sent the following request to the EP's Press Office:
A little while ago I tried to find information on the EP's web site on allegations of misappropriation of public funds by members of the European Parliament.
A situation like this would require swift and decisive information from any institution.
Not finding any, I beg you to inform me when action is taken in order to present the situation as fairly as possible to the readers of my blog.
Best regards,
Ralf Grahn
EU TFEU: Consistency
Today we start to look at a new Title in the Treaty of Lisbon, with Provisions having general application, meaning that they apply across the Treaty on the Functioning of the European Union (TFEU).
Out of academic interest, we run a genetics test on a newborn provision.
***
In the Treaty of Lisbon (ToL) the Treaty establishing the European Community (TEC), under its new name, the Treaty on the Functioning of the European Union (TFEU), Part One of the treaty introduces a Title II Provisions having general application.
At the beginning of Title II, the intergovernmental conference (IGC 2007) inserted a new Article 2f into the Treaty of Lisbon, under (OJ 17.12.2007 C 306/47):
Article 2f TFEU (ToL), to be renumbered Article 7 TFEU
The Union shall ensure consistency between its policies and activities, taking all of its objectives
into account and in accordance with the principle of conferral of powers.
***
When we turn to the corresponding Article III-115 in the Treaty establishing a Constitution for Europe, we notice that it stands at the beginning of Part III The policies and functioning of the Union and its Title I Provisions of general application.
We have often looked at the similarities between corresponding Articles in the Lisbon Treaty, the Constitution and the draft Constitution, but here we have an opportunity to notice how much in common the different versions have structurally. Part III on the … functioning of the Union reminds us of the Treaty on the Functioning of the European Union.
And the Title level headings are almost identical between the Lisbon Treaty and the Constitution.
The likeness does not end there, as you see if you read Article III-115 of the Constitutional Treaty and notice only a small change of style (OJ 16.12.2004 C 310/55):
PART III
THE POLICIES AND FUNCTIONING OF THE UNION
TITLE I
PROVISIONS OF GENERAL APPLICATION
Article III-115
The Union shall ensure consistency between the policies and activities referred to in this Part, taking all of its objectives into account and in accordance with the principle of conferral of powers.
***
Next, our Time Machine takes us to the draft Treaty establishing a Constitution for Europe. We look at both the structure and the wording (OJ 18.7.2003 C 169/29):
PART III
THE POLICIES AND FUNCTIONING OF THE UNION
TITLE I
CLAUSES OF GENERAL APPLICATION
Article III-1
The Union shall ensure consistency between the different policies and activities referred to in this Part, taking all of the Union's objectives into account and in accordance with the principle of conferring of powers.
***
As you can see, there is not much between the three versions, and since the provision is new, it leads to the conclusion that after a few years of stagnation we might actually be allowed to benefit from the work of the European Convention.
***
The origins of Article 2f TFEU (ToL) have been attributed differently. The UK Foreign and Commonwealth Office (FCO) rounds up the widest circle of suspects, four different Articles:
“Draws on Articles 1 and 3 TEU, and Articles 5 and 7 TEC.”
The number of paternity candidates does not matter that much, although it is intriguing how a short Article like 2f TFEU can draw on such an extensive gene pool, but each of them gives us an opportunity to get acquainted with the TEU and TEC, the treaties in force. For the latest consolidated version of the current treaties we go to OJ 29.12.2006 C 321 E/1.
So, out of academic interest, let us see what Article 1 TEU has to offer:
Article 1 TEU
By this Treaty, the HIGH CONTRACTING PARTIES establish among themselves a EUROPEAN
UNION, hereinafter called ‘the Union’.
This Treaty marks a new stage in the process of creating an ever closer union among the peoples
of Europe, in which decisions are taken as openly as possible and as closely as possible to the
citizen.
The Union shall be founded on the European Communities, supplemented by the policies and
forms of cooperation established by this Treaty. Its task shall be to organise, in a manner
demonstrating consistency and solidarity, relations between the Member States and between their
peoples.
***
Article 1 TEU at least gave us ‘policies’ and ’consistency’, and Article 3 TEU mentions ‘activies’ and ‘consistency’ (thrice):
Article 3 TEU
The Union shall be served by a single institutional framework which shall ensure the consistency
and the continuity of the activities carried out in order to attain its objectives while respecting and building upon the acquis communautaire.
The Union shall in particular ensure the consistency of its external activities as a whole in the
context of its external relations, security, economic and development policies. The Council and the Commission shall be responsible for ensuring such consistency and shall cooperate to this end. They shall ensure the implementation of these policies, each in accordance with its respective powers.
***
Article 5 TEC seems to contribute with ’powers conferred’ and ‘objectives’:
Article 5 TEC
The Community shall act within the limits of the powers conferred upon it by this Treaty and of
the objectives assigned to it therein.
In areas which do not fall within its exclusive competence, the Community shall take action, in
accordance with the principle of subsidiarity, only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States and can therefore, by reason of the scale or effects of the proposed action, be better achieved by the Community.
Any action by the Community shall not go beyond what is necessary to achieve the objectives of
this Treaty.
***
Beaming with pride, Article 7 TEC lays claim to the striking family resemblance with its ‘powers conferred’:
Article 7 TEC
1. The tasks entrusted to the Community shall be carried out by the following institutions:
— a EUROPEAN PARLIAMENT,
— a COUNCIL,
— a COMMISSION,
— a COURT OF JUSTICE,
— a COURT OF AUDITORS.
Each institution shall act within the limits of the powers conferred upon it by this Treaty.
2. The Council and the Commission shall be assisted by an Economic and Social Committee
and a Committee of the Regions acting in an advisory capacity.
***
We do not know if Article 2f TFEU is going to survive the perilous times of infant mortality that EU treaties are prone to before ratification, but we know that newborn has inherited a number of its noble traits from its elders.
Ralf Grahn
Source:
Foreign and Commonwealth Office: A comparative table of the current EC and EU Treaties as amended by the Treaty of Lisbon; Command Paper (Cm) 7311; 21 January 2008;
http://www.official-documents.gov.uk/document/cm73/7311/7311.asp
Out of academic interest, we run a genetics test on a newborn provision.
***
In the Treaty of Lisbon (ToL) the Treaty establishing the European Community (TEC), under its new name, the Treaty on the Functioning of the European Union (TFEU), Part One of the treaty introduces a Title II Provisions having general application.
At the beginning of Title II, the intergovernmental conference (IGC 2007) inserted a new Article 2f into the Treaty of Lisbon, under (OJ 17.12.2007 C 306/47):
Article 2f TFEU (ToL), to be renumbered Article 7 TFEU
The Union shall ensure consistency between its policies and activities, taking all of its objectives
into account and in accordance with the principle of conferral of powers.
***
When we turn to the corresponding Article III-115 in the Treaty establishing a Constitution for Europe, we notice that it stands at the beginning of Part III The policies and functioning of the Union and its Title I Provisions of general application.
We have often looked at the similarities between corresponding Articles in the Lisbon Treaty, the Constitution and the draft Constitution, but here we have an opportunity to notice how much in common the different versions have structurally. Part III on the … functioning of the Union reminds us of the Treaty on the Functioning of the European Union.
And the Title level headings are almost identical between the Lisbon Treaty and the Constitution.
The likeness does not end there, as you see if you read Article III-115 of the Constitutional Treaty and notice only a small change of style (OJ 16.12.2004 C 310/55):
PART III
THE POLICIES AND FUNCTIONING OF THE UNION
TITLE I
PROVISIONS OF GENERAL APPLICATION
Article III-115
The Union shall ensure consistency between the policies and activities referred to in this Part, taking all of its objectives into account and in accordance with the principle of conferral of powers.
***
Next, our Time Machine takes us to the draft Treaty establishing a Constitution for Europe. We look at both the structure and the wording (OJ 18.7.2003 C 169/29):
PART III
THE POLICIES AND FUNCTIONING OF THE UNION
TITLE I
CLAUSES OF GENERAL APPLICATION
Article III-1
The Union shall ensure consistency between the different policies and activities referred to in this Part, taking all of the Union's objectives into account and in accordance with the principle of conferring of powers.
***
As you can see, there is not much between the three versions, and since the provision is new, it leads to the conclusion that after a few years of stagnation we might actually be allowed to benefit from the work of the European Convention.
***
The origins of Article 2f TFEU (ToL) have been attributed differently. The UK Foreign and Commonwealth Office (FCO) rounds up the widest circle of suspects, four different Articles:
“Draws on Articles 1 and 3 TEU, and Articles 5 and 7 TEC.”
The number of paternity candidates does not matter that much, although it is intriguing how a short Article like 2f TFEU can draw on such an extensive gene pool, but each of them gives us an opportunity to get acquainted with the TEU and TEC, the treaties in force. For the latest consolidated version of the current treaties we go to OJ 29.12.2006 C 321 E/1.
So, out of academic interest, let us see what Article 1 TEU has to offer:
Article 1 TEU
By this Treaty, the HIGH CONTRACTING PARTIES establish among themselves a EUROPEAN
UNION, hereinafter called ‘the Union’.
This Treaty marks a new stage in the process of creating an ever closer union among the peoples
of Europe, in which decisions are taken as openly as possible and as closely as possible to the
citizen.
The Union shall be founded on the European Communities, supplemented by the policies and
forms of cooperation established by this Treaty. Its task shall be to organise, in a manner
demonstrating consistency and solidarity, relations between the Member States and between their
peoples.
***
Article 1 TEU at least gave us ‘policies’ and ’consistency’, and Article 3 TEU mentions ‘activies’ and ‘consistency’ (thrice):
Article 3 TEU
The Union shall be served by a single institutional framework which shall ensure the consistency
and the continuity of the activities carried out in order to attain its objectives while respecting and building upon the acquis communautaire.
The Union shall in particular ensure the consistency of its external activities as a whole in the
context of its external relations, security, economic and development policies. The Council and the Commission shall be responsible for ensuring such consistency and shall cooperate to this end. They shall ensure the implementation of these policies, each in accordance with its respective powers.
***
Article 5 TEC seems to contribute with ’powers conferred’ and ‘objectives’:
Article 5 TEC
The Community shall act within the limits of the powers conferred upon it by this Treaty and of
the objectives assigned to it therein.
In areas which do not fall within its exclusive competence, the Community shall take action, in
accordance with the principle of subsidiarity, only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States and can therefore, by reason of the scale or effects of the proposed action, be better achieved by the Community.
Any action by the Community shall not go beyond what is necessary to achieve the objectives of
this Treaty.
***
Beaming with pride, Article 7 TEC lays claim to the striking family resemblance with its ‘powers conferred’:
Article 7 TEC
1. The tasks entrusted to the Community shall be carried out by the following institutions:
— a EUROPEAN PARLIAMENT,
— a COUNCIL,
— a COMMISSION,
— a COURT OF JUSTICE,
— a COURT OF AUDITORS.
Each institution shall act within the limits of the powers conferred upon it by this Treaty.
2. The Council and the Commission shall be assisted by an Economic and Social Committee
and a Committee of the Regions acting in an advisory capacity.
***
We do not know if Article 2f TFEU is going to survive the perilous times of infant mortality that EU treaties are prone to before ratification, but we know that newborn has inherited a number of its noble traits from its elders.
Ralf Grahn
Source:
Foreign and Commonwealth Office: A comparative table of the current EC and EU Treaties as amended by the Treaty of Lisbon; Command Paper (Cm) 7311; 21 January 2008;
http://www.official-documents.gov.uk/document/cm73/7311/7311.asp
Thursday, 21 February 2008
EU TFEU: Support, coordinate and supplement
There are at least three kinds of changes to look out for, when we try to make sense of what the Treaty of Lisbon means for the European Union (EU):
1) Where do the amended treaties, the Treaty on European Union (TEU) and the Treaty establishing the European Community (TEC), renamed the Treaty on the Functioning of the European Union (TFEU) introduce substantial or material changes?
2) When do the differences aim at better methodology or presentation?
3) Which amendments, including most horizontal ones, merely result from certain choices of terminology followed throughout?
The provisions introducing EU (‘Community’) competences in the TFEU offer us examples from each group.
You are offered an opportunity to test your own thinking, based on the following presentation.
***
The intergovernmental conference decided to supplement its exposition of EU competences by inserting an Article 2e TFEU in the Treaty of Lisbon (ToL). See OJ 17.12.2007 c 306/47:
Article 2e TFEU (ToL), after renumbering 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.
***
Going backwards we can compare TFEU Article 2e of the Lisbon Treaty with its nearest antecedent, Article I-17 Areas of supporting, coordinating or complementary action of the Treaty establishing a Constitution for Europe (OJ 16.12.2004 C 310/17):
Article I-17
Areas of supporting, coordinating or complementary action
The Union shall have competence to carry out supporting, coordinating or complementary action. 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, youth, sport and vocational training;
(f) civil protection;
(g) administrative cooperation.
***
The differences between the corresponding Articles in the ToL and the Constitution are minute (supplement / complement).
***
The basis for the IGC 2004 which agreed on the Constitutional Treaty was the European Convention and its draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/11):
Article I-16
Areas of supporting, coordinating or complementary action
1. The Union may take supporting, coordinating or complementary action.
2. The areas for supporting, coordinating or complementary action shall be, at European level:
— industry,
— protection and improvement of human health,
— education, vocational training, youth and sport,
— culture,
— civil protection.
3. Legally binding acts adopted by the Union on the basis of the provisions specific to these areas in Part III may not entail harmonisation of Member States' laws or regulations.
***
There are some differences between the draft Constitution and the Constitution. Let us take a closer look.
If we disregard the changes which appear to be only of an editorial nature, we notice the addition of two areas between the Convention and the Constitution. The IGC 2004 added tourism and administrative cooperation.
Dropping paragraph 3 of the Convention draft does not extend EU powers to harmonise member states’ legislation, since Article 12(5) of the Constitutional Treaty (OJ 16.12.2004 C 310/15) and Article 2a(5) TFEU (ToL) already provide this restriction:
Article 2a(5) TFEU (ToL)
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.
***
The Constitution and the Convention are only intermediary stages in a long reform process leading up to the Lisbon Treaty. The meaningful comparison, from a material point of view, is what the Reform Treaty changes compared to the current treaties.
Let us look briefly at the different areas. What stays the same? What is new and when was it introduced?
The general, but less systematic presentation in the existing Article 3 TEC offers us a picture of the activities of the European Community (latest consolidated version OJ 29.12.2006 C 321 E/44-45).
Article 3 TEC
1. For the purposes set out in Article 2, the activities of the Community shall include, as provided in this Treaty and in accordance with the timetable set out therein:
(a) the prohibition, as between Member States, of customs duties and quantitative restrictions on the import and export of goods, and of all other measures having equivalent effect;
(b) a common commercial policy;
(c) an internal market characterised by the abolition, as between Member States, of obstacles to the free movement of goods, persons, services and capital;
(d) measures concerning the entry and movement of persons as provided for in Title IV;
(e) a common policy in the sphere of agriculture and fisheries;
(f) a common policy in the sphere of transport;
(g) a system ensuring that competition in the internal market is not distorted;
(h) the approximation of the laws of Member States to the extent required for the functioning of the common market;
(i) the promotion of coordination between employment policies of the Member States with a view to enhancing their effectiveness by developing a coordinated strategy for employment;
(j) a policy in the social sphere comprising a European Social Fund;
(k) the strengthening of economic and social cohesion;
(l) a policy in the sphere of the environment;
(m) the strengthening of the competitiveness of Community industry;
(n) the promotion of research and technological development;
(o) encouragement for the establishment and development of trans-European networks;
(p) a contribution to the attainment of a high level of health protection;
(q) a contribution to education and training of quality and to the flowering of the cultures of the Member States;
(r) a policy in the sphere of development cooperation;
(s) the association of the overseas countries and territories in order to increase trade and promote jointly economic and social development;
(t) a contribution to the strengthening of consumer protection;
(u) measures in the spheres of energy, civil protection and tourism.
2. In all the activities referred to in this Article, the Community shall aim to eliminate
inequalities, and to promote equality, between men and women.
***
Existing areas
The following areas mentioned in the TFEU (ToL) are already covered by detailed TEC provisions:
(a) Complementing member states’ activities for human health protection is elaborated in Article 152 TEC. (Article III-179 draft Constitution, Article III-278 Constitution).
(b) Actions to ensure that the conditions necessary for the competitiveness of the Community's industry exist are elaborated in Article 157 TEC. (Article III-180 draft Constitution, Article III-279 Constitution)
(c) Cultural cooperation is covered in Article 151 TEC. (Article III-181 draft Constitution, Article III-280 Constitution).
(e) Article 149 TEC takes up education, vocational training and youth. (Articles III-182 and III-183 draft Constitution, Articles III-282 and III-283 Constitution).
***
“Orphans”
Civil protection and tourism, introduced by the Treaty of Maastricht, are mentioned in Article 3(1)(u) TEC, but lack material provisions. This means that action has relied on and been confined to the unanimity and other requirements of the flexibility clause, Article 308 TEC.
These “orphans” were “adopted” by giving them “parents” in the form of substantial provisions in the following way:
Civil protection (f) was taken up and given a substantial provision by the Convention, Article III-184 draft Constitution. (Article III-284 Constitution).
Tourism (d) was accorded the same treatment only by the IGC 2004, with the material Constitutional Treaty Article III-281.
***
New areas
Sport (e) was introduced by the Convention, inserted into the substantial Article III-182 draft Constitution. (Article III-282 Constitution).
Administrative cooperation (g) was introduced by the Convention, with Article III-185 of the draft Constitution offering contents. (Article III-285 Constitution).
***
If you want to get a closer look at EU supporting action in a certain area, your next stop would be to look up the relevant TFEU provision in the Reform Treaty (and, perhaps, trace the changes from its antecedents).
***
We can see that both the Convention and the IGC 2004 contributed towards the ToL novelties concerning EU action to support, coordinate or supplement the actions of the member states, but that the IGC 2007 added nothing to what had been reached in the previous intergovernmental conference.
Ralf Grahn
1) Where do the amended treaties, the Treaty on European Union (TEU) and the Treaty establishing the European Community (TEC), renamed the Treaty on the Functioning of the European Union (TFEU) introduce substantial or material changes?
2) When do the differences aim at better methodology or presentation?
3) Which amendments, including most horizontal ones, merely result from certain choices of terminology followed throughout?
The provisions introducing EU (‘Community’) competences in the TFEU offer us examples from each group.
You are offered an opportunity to test your own thinking, based on the following presentation.
***
The intergovernmental conference decided to supplement its exposition of EU competences by inserting an Article 2e TFEU in the Treaty of Lisbon (ToL). See OJ 17.12.2007 c 306/47:
Article 2e TFEU (ToL), after renumbering 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.
***
Going backwards we can compare TFEU Article 2e of the Lisbon Treaty with its nearest antecedent, Article I-17 Areas of supporting, coordinating or complementary action of the Treaty establishing a Constitution for Europe (OJ 16.12.2004 C 310/17):
Article I-17
Areas of supporting, coordinating or complementary action
The Union shall have competence to carry out supporting, coordinating or complementary action. 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, youth, sport and vocational training;
(f) civil protection;
(g) administrative cooperation.
***
The differences between the corresponding Articles in the ToL and the Constitution are minute (supplement / complement).
***
The basis for the IGC 2004 which agreed on the Constitutional Treaty was the European Convention and its draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/11):
Article I-16
Areas of supporting, coordinating or complementary action
1. The Union may take supporting, coordinating or complementary action.
2. The areas for supporting, coordinating or complementary action shall be, at European level:
— industry,
— protection and improvement of human health,
— education, vocational training, youth and sport,
— culture,
— civil protection.
3. Legally binding acts adopted by the Union on the basis of the provisions specific to these areas in Part III may not entail harmonisation of Member States' laws or regulations.
***
There are some differences between the draft Constitution and the Constitution. Let us take a closer look.
If we disregard the changes which appear to be only of an editorial nature, we notice the addition of two areas between the Convention and the Constitution. The IGC 2004 added tourism and administrative cooperation.
Dropping paragraph 3 of the Convention draft does not extend EU powers to harmonise member states’ legislation, since Article 12(5) of the Constitutional Treaty (OJ 16.12.2004 C 310/15) and Article 2a(5) TFEU (ToL) already provide this restriction:
Article 2a(5) TFEU (ToL)
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.
***
The Constitution and the Convention are only intermediary stages in a long reform process leading up to the Lisbon Treaty. The meaningful comparison, from a material point of view, is what the Reform Treaty changes compared to the current treaties.
Let us look briefly at the different areas. What stays the same? What is new and when was it introduced?
The general, but less systematic presentation in the existing Article 3 TEC offers us a picture of the activities of the European Community (latest consolidated version OJ 29.12.2006 C 321 E/44-45).
Article 3 TEC
1. For the purposes set out in Article 2, the activities of the Community shall include, as provided in this Treaty and in accordance with the timetable set out therein:
(a) the prohibition, as between Member States, of customs duties and quantitative restrictions on the import and export of goods, and of all other measures having equivalent effect;
(b) a common commercial policy;
(c) an internal market characterised by the abolition, as between Member States, of obstacles to the free movement of goods, persons, services and capital;
(d) measures concerning the entry and movement of persons as provided for in Title IV;
(e) a common policy in the sphere of agriculture and fisheries;
(f) a common policy in the sphere of transport;
(g) a system ensuring that competition in the internal market is not distorted;
(h) the approximation of the laws of Member States to the extent required for the functioning of the common market;
(i) the promotion of coordination between employment policies of the Member States with a view to enhancing their effectiveness by developing a coordinated strategy for employment;
(j) a policy in the social sphere comprising a European Social Fund;
(k) the strengthening of economic and social cohesion;
(l) a policy in the sphere of the environment;
(m) the strengthening of the competitiveness of Community industry;
(n) the promotion of research and technological development;
(o) encouragement for the establishment and development of trans-European networks;
(p) a contribution to the attainment of a high level of health protection;
(q) a contribution to education and training of quality and to the flowering of the cultures of the Member States;
(r) a policy in the sphere of development cooperation;
(s) the association of the overseas countries and territories in order to increase trade and promote jointly economic and social development;
(t) a contribution to the strengthening of consumer protection;
(u) measures in the spheres of energy, civil protection and tourism.
2. In all the activities referred to in this Article, the Community shall aim to eliminate
inequalities, and to promote equality, between men and women.
***
Existing areas
The following areas mentioned in the TFEU (ToL) are already covered by detailed TEC provisions:
(a) Complementing member states’ activities for human health protection is elaborated in Article 152 TEC. (Article III-179 draft Constitution, Article III-278 Constitution).
(b) Actions to ensure that the conditions necessary for the competitiveness of the Community's industry exist are elaborated in Article 157 TEC. (Article III-180 draft Constitution, Article III-279 Constitution)
(c) Cultural cooperation is covered in Article 151 TEC. (Article III-181 draft Constitution, Article III-280 Constitution).
(e) Article 149 TEC takes up education, vocational training and youth. (Articles III-182 and III-183 draft Constitution, Articles III-282 and III-283 Constitution).
***
“Orphans”
Civil protection and tourism, introduced by the Treaty of Maastricht, are mentioned in Article 3(1)(u) TEC, but lack material provisions. This means that action has relied on and been confined to the unanimity and other requirements of the flexibility clause, Article 308 TEC.
These “orphans” were “adopted” by giving them “parents” in the form of substantial provisions in the following way:
Civil protection (f) was taken up and given a substantial provision by the Convention, Article III-184 draft Constitution. (Article III-284 Constitution).
Tourism (d) was accorded the same treatment only by the IGC 2004, with the material Constitutional Treaty Article III-281.
***
New areas
Sport (e) was introduced by the Convention, inserted into the substantial Article III-182 draft Constitution. (Article III-282 Constitution).
Administrative cooperation (g) was introduced by the Convention, with Article III-185 of the draft Constitution offering contents. (Article III-285 Constitution).
***
If you want to get a closer look at EU supporting action in a certain area, your next stop would be to look up the relevant TFEU provision in the Reform Treaty (and, perhaps, trace the changes from its antecedents).
***
We can see that both the Convention and the IGC 2004 contributed towards the ToL novelties concerning EU action to support, coordinate or supplement the actions of the member states, but that the IGC 2007 added nothing to what had been reached in the previous intergovernmental conference.
Ralf Grahn
Wednesday, 20 February 2008
EU: TFEU Policy coordination
The systematic approach towards competences of the European Union in the Treaty of Lisbon includes mandatory coordination of member states policies in two important areas, economic and employment policies, with an option to take coordinating initiatives in a third, social policies.
Drafting novelties for better presentation do not necessarily change the way the European Union works. A mechanical comparison between the Lisbon Treaty and the Constitution is therefore of limited value, unless we elucidate the substantial changes or lack of them, and consider what they mean in relation to the present treaties, the ones which actually are amended.
To contribute to the knowledge of all sides about the EU and its workings, regardless of the recipients’ (and the comparer’s) preconceived views, these comparisons have to be made as objectively as possible.
In addition, I allow myself both value judgments and banter, trying to make clear when I am writing in objective and when in subjective mode. (Today’s epistle is not especially representative of the latter, being almost wholly factual in tone.)
***
In the Treaty of Lisbon (ToL) the intergovernmental conference inserted a new Article 2d TFEU (OJ 17.12.2007 C 306/47):
Article 2d TFEU (ToL), to be renumbered Article 5 TFEU
1. The Member States shall coordinate their economic policies within the Union. To this end, the Council shall adopt measures, in particular broad guidelines for these policies.
Specific provisions shall apply to those Member States whose currency is the euro.
2. The Union shall take measures to ensure coordination of the employment policies of the Member States, in particular by defining guidelines for these policies.
3. The Union may take initiatives to ensure coordination of Member States' social policies.
***
Since many visitors seem to be interested in the similarities and differences between the Lisbon Treaty and the Constitution, we can track the history backwards until we reach the existing treaties, the ones actually being amended.
The Treaty establishing a Constitution for Europe contained the following Article I-15 The coordination of economic and employment policies (OJ 16.12.2004 C 310/17):
Article I-15
The coordination of economic and employment policies
1. The Member States shall coordinate their economic policies within the Union. To this end, the Council of Ministers shall adopt measures, in particular broad guidelines for these policies.
Specific provisions shall apply to those Member States whose currency is the euro.
2. The Union shall take measures to ensure coordination of the employment policies of the Member States, in particular by defining guidelines for these policies.
3. The Union may take initiatives to ensure coordination of Member States' social policies.
***
We can conclude that the Lisbon Treaty has taken over this Article of the Constitutional Treaty unchanged.
The following stop is the European Convention and its draft Treaty establishing a Constitution for Europe, where the corresponding provision is Article I-14 (OJ 18.7.2003 C 169/11):
Article 14
The coordination of economic and employment policies
1. The Union shall adopt measures to ensure coordination of the economic policies of the Member States, in particular by adopting broad guidelines for these policies. The Member States shall coordinate their economic policies within the Union.
2. Specific provisions shall apply to those Member States which have adopted the euro.
3. The Union shall adopt measures to ensure coordination of the employment policies of the Member States, in particular by adopting guidelines for these policies.
4. The Union may adopt initiatives to ensure coordination of Member States' social policies.
***
Basically, the new Article was introduced by the Convention, although the IGC 2004 made some editorial changes. Paragraph 1 of each version seems to indicate some substantial shift, the Constitution being slightly more wishy-washy than its predecessor.
***
Coordination of member states’ economic policies, including the broad economic policy guidelines, is firmly based in the current TEC, where Articles 98 and 99 offers a range of activities (for the latest consolidated version of the TEU and TEC, go to OJ 29.12.2006 C 321 E/82-83):
CHAPTER 1 TEC
ECONOMIC POLICY
Article 98
Member States shall conduct their economic policies with a view to contributing to the achievement of the objectives of the Community, as defined in Article 2, and in the context of the broad guidelines referred to in Article 99(2). The Member States and the Community shall act in accordance with the principle of an open market economy with free competition, favouring an efficient allocation of resources, and in compliance with the principles set out in Article 4.
Article 99
1. Member States shall regard their economic policies as a matter of common concern and shall coordinate them within the Council, in accordance with the provisions of Article 98.
2. The Council shall, acting by a qualified majority on a recommendation from the Commission, formulate a draft for the broad guidelines of the economic policies of the Member States and of the Community, and shall report its findings to the European Council.
The European Council shall, acting on the basis of the report from the Council, discuss a conclusion on the broad guidelines of the economic policies of the Member States and of the Community.
On the basis of this conclusion, the Council shall, acting by a qualified majority, adopt a recommendation setting out these broad guidelines. The Council shall inform the European Parliament of its recommendation.
3. In order to ensure closer coordination of economic policies and sustained convergence of the economic performances of the Member States, the Council shall, on the basis of reports submitted by the Commission, monitor economic developments in each of the Member States and in the Community as well as the consistency of economic policies with the broad guidelines referred to in paragraph 2, and regularly carry out an overall assessment.
For the purpose of this multilateral surveillance, Member States shall forward information to the Commission about important measures taken by them in the field of their economic policy and such other information as they deem necessary.
4. Where it is established, under the procedure referred to in paragraph 3, that the economic policies of a Member State are not consistent with the broad guidelines referred to in paragraph 2 or that they risk jeopardising the proper functioning of economic and monetary union, the Council may, acting by a qualified majority on a recommendation from the Commission, make the necessary recommendations to the Member State concerned. The Council may, acting by a qualified majority on a proposal from the Commission, decide to make its recommendations public.
The President of the Council and the Commission shall report to the European Parliament on the results of multilateral surveillance. The President of the Council may be invited to appear before the competent committee of the European Parliament if the Council has made its recommendations public.
5. The Council, acting in accordance with the procedure referred to in Article 252, may adopt detailed rules for the multilateral surveillance procedure referred to in paragraphs 3 and 4 of this Article.
***
The interested reader can find additional information in the following official documents:
Council Recommendation 2005/601/EC of 12 July 2005 on the broad economic policy guidelines of the Member States and the Community (2005 – 2008) (OJ 6.8.2005 L 205)
Council Recommendation 2007/209/EC of 27 March 2007 on the 2007 update of the broad guidelines for the economic policies of the Member States and the Community and on the implementation of Member States' employment policies (OJ 3.4.2007 L 92)
There is a convenient presentation of the Broad economic policy guidelines (2005 – 2008) available on the Commission’s Scadplus web pages:
http://europa.eu/scadplus/leg/en/lvb/l25078.htm
***
Specific provisions apply to those Member States whose currency is the euro. Monetary policy for the Eurozone is an exclusive EU competence according to the TFEU. How the members belonging to the Eurozone handle their economic policies has direct implications for the monetary policy.
We are going to encounter the detailed provisions later, but at this stage I will only draw your attention to the Protocol on the Euro Group annexed to the Lisbon Treaty, with informal meetings of the (Finance) Ministers and a President elected for two and a half years, an arrangement currently in use (OJ 17.12.2007 C 306/151):
PROTOCOL
ON THE EURO GROUP
THE HIGH CONTRACTING PARTIES,
DESIRING to promote conditions for stronger economic growth in the European Union and, to that end, to develop ever closer coordination of economic policies within the euro area,
CONSCIOUS of the need to lay down special provisions for enhanced dialogue between the Member States whose currency is the euro, pending the euro becoming the currency of all Member States of the Union,
HAVE AGREED UPON the following provisions, which shall be annexed to the Treaty on European Union and to the Treaty on the Functioning of the European Union:
Article 1
The Ministers of the Member States whose currency is the euro shall meet informally. Such meetings shall take place, when necessary, to discuss questions related to the specific responsibilities they share with regard to the single currency. The Commission shall take part in the meetings. The European Central Bank shall be invited to take part in such meetings, which shall be prepared by the representatives of the Ministers with responsibility for finance of the Member States whose currency is the euro and of the Commission.
Article 2
The Ministers of the Member States whose currency is the euro shall elect a president for two and a half years, by a majority of those Member States.
***
After living a life on their own, the employment policy guidelines have been integrated with the Broad Economic Policy Guidelines. For a introduction you could visit the Scadplus web pages of the Commission, Employment policy guidelines (2005 – 2008):
http://europa.eu/scadplus/leg/en/cha/c11323.htm
***
Whereas economic policy and employment policy coordination are mandatory, the coordination of member states’ social policies is an option.
For an overview of DG Employment, Social Affairs and Equal Opportunities, you could start from the DG’s homepage:
http://ec.europa.eu/employment_social/index_en.html
***
I hope that this presentation has supported, coordinated or supplemented your knowledge of EU competences. Anyway, these are the competences we are going to look at next time.
Ralf Grahn
Drafting novelties for better presentation do not necessarily change the way the European Union works. A mechanical comparison between the Lisbon Treaty and the Constitution is therefore of limited value, unless we elucidate the substantial changes or lack of them, and consider what they mean in relation to the present treaties, the ones which actually are amended.
To contribute to the knowledge of all sides about the EU and its workings, regardless of the recipients’ (and the comparer’s) preconceived views, these comparisons have to be made as objectively as possible.
In addition, I allow myself both value judgments and banter, trying to make clear when I am writing in objective and when in subjective mode. (Today’s epistle is not especially representative of the latter, being almost wholly factual in tone.)
***
In the Treaty of Lisbon (ToL) the intergovernmental conference inserted a new Article 2d TFEU (OJ 17.12.2007 C 306/47):
Article 2d TFEU (ToL), to be renumbered Article 5 TFEU
1. The Member States shall coordinate their economic policies within the Union. To this end, the Council shall adopt measures, in particular broad guidelines for these policies.
Specific provisions shall apply to those Member States whose currency is the euro.
2. The Union shall take measures to ensure coordination of the employment policies of the Member States, in particular by defining guidelines for these policies.
3. The Union may take initiatives to ensure coordination of Member States' social policies.
***
Since many visitors seem to be interested in the similarities and differences between the Lisbon Treaty and the Constitution, we can track the history backwards until we reach the existing treaties, the ones actually being amended.
The Treaty establishing a Constitution for Europe contained the following Article I-15 The coordination of economic and employment policies (OJ 16.12.2004 C 310/17):
Article I-15
The coordination of economic and employment policies
1. The Member States shall coordinate their economic policies within the Union. To this end, the Council of Ministers shall adopt measures, in particular broad guidelines for these policies.
Specific provisions shall apply to those Member States whose currency is the euro.
2. The Union shall take measures to ensure coordination of the employment policies of the Member States, in particular by defining guidelines for these policies.
3. The Union may take initiatives to ensure coordination of Member States' social policies.
***
We can conclude that the Lisbon Treaty has taken over this Article of the Constitutional Treaty unchanged.
The following stop is the European Convention and its draft Treaty establishing a Constitution for Europe, where the corresponding provision is Article I-14 (OJ 18.7.2003 C 169/11):
Article 14
The coordination of economic and employment policies
1. The Union shall adopt measures to ensure coordination of the economic policies of the Member States, in particular by adopting broad guidelines for these policies. The Member States shall coordinate their economic policies within the Union.
2. Specific provisions shall apply to those Member States which have adopted the euro.
3. The Union shall adopt measures to ensure coordination of the employment policies of the Member States, in particular by adopting guidelines for these policies.
4. The Union may adopt initiatives to ensure coordination of Member States' social policies.
***
Basically, the new Article was introduced by the Convention, although the IGC 2004 made some editorial changes. Paragraph 1 of each version seems to indicate some substantial shift, the Constitution being slightly more wishy-washy than its predecessor.
***
Coordination of member states’ economic policies, including the broad economic policy guidelines, is firmly based in the current TEC, where Articles 98 and 99 offers a range of activities (for the latest consolidated version of the TEU and TEC, go to OJ 29.12.2006 C 321 E/82-83):
CHAPTER 1 TEC
ECONOMIC POLICY
Article 98
Member States shall conduct their economic policies with a view to contributing to the achievement of the objectives of the Community, as defined in Article 2, and in the context of the broad guidelines referred to in Article 99(2). The Member States and the Community shall act in accordance with the principle of an open market economy with free competition, favouring an efficient allocation of resources, and in compliance with the principles set out in Article 4.
Article 99
1. Member States shall regard their economic policies as a matter of common concern and shall coordinate them within the Council, in accordance with the provisions of Article 98.
2. The Council shall, acting by a qualified majority on a recommendation from the Commission, formulate a draft for the broad guidelines of the economic policies of the Member States and of the Community, and shall report its findings to the European Council.
The European Council shall, acting on the basis of the report from the Council, discuss a conclusion on the broad guidelines of the economic policies of the Member States and of the Community.
On the basis of this conclusion, the Council shall, acting by a qualified majority, adopt a recommendation setting out these broad guidelines. The Council shall inform the European Parliament of its recommendation.
3. In order to ensure closer coordination of economic policies and sustained convergence of the economic performances of the Member States, the Council shall, on the basis of reports submitted by the Commission, monitor economic developments in each of the Member States and in the Community as well as the consistency of economic policies with the broad guidelines referred to in paragraph 2, and regularly carry out an overall assessment.
For the purpose of this multilateral surveillance, Member States shall forward information to the Commission about important measures taken by them in the field of their economic policy and such other information as they deem necessary.
4. Where it is established, under the procedure referred to in paragraph 3, that the economic policies of a Member State are not consistent with the broad guidelines referred to in paragraph 2 or that they risk jeopardising the proper functioning of economic and monetary union, the Council may, acting by a qualified majority on a recommendation from the Commission, make the necessary recommendations to the Member State concerned. The Council may, acting by a qualified majority on a proposal from the Commission, decide to make its recommendations public.
The President of the Council and the Commission shall report to the European Parliament on the results of multilateral surveillance. The President of the Council may be invited to appear before the competent committee of the European Parliament if the Council has made its recommendations public.
5. The Council, acting in accordance with the procedure referred to in Article 252, may adopt detailed rules for the multilateral surveillance procedure referred to in paragraphs 3 and 4 of this Article.
***
The interested reader can find additional information in the following official documents:
Council Recommendation 2005/601/EC of 12 July 2005 on the broad economic policy guidelines of the Member States and the Community (2005 – 2008) (OJ 6.8.2005 L 205)
Council Recommendation 2007/209/EC of 27 March 2007 on the 2007 update of the broad guidelines for the economic policies of the Member States and the Community and on the implementation of Member States' employment policies (OJ 3.4.2007 L 92)
There is a convenient presentation of the Broad economic policy guidelines (2005 – 2008) available on the Commission’s Scadplus web pages:
http://europa.eu/scadplus/leg/en/lvb/l25078.htm
***
Specific provisions apply to those Member States whose currency is the euro. Monetary policy for the Eurozone is an exclusive EU competence according to the TFEU. How the members belonging to the Eurozone handle their economic policies has direct implications for the monetary policy.
We are going to encounter the detailed provisions later, but at this stage I will only draw your attention to the Protocol on the Euro Group annexed to the Lisbon Treaty, with informal meetings of the (Finance) Ministers and a President elected for two and a half years, an arrangement currently in use (OJ 17.12.2007 C 306/151):
PROTOCOL
ON THE EURO GROUP
THE HIGH CONTRACTING PARTIES,
DESIRING to promote conditions for stronger economic growth in the European Union and, to that end, to develop ever closer coordination of economic policies within the euro area,
CONSCIOUS of the need to lay down special provisions for enhanced dialogue between the Member States whose currency is the euro, pending the euro becoming the currency of all Member States of the Union,
HAVE AGREED UPON the following provisions, which shall be annexed to the Treaty on European Union and to the Treaty on the Functioning of the European Union:
Article 1
The Ministers of the Member States whose currency is the euro shall meet informally. Such meetings shall take place, when necessary, to discuss questions related to the specific responsibilities they share with regard to the single currency. The Commission shall take part in the meetings. The European Central Bank shall be invited to take part in such meetings, which shall be prepared by the representatives of the Ministers with responsibility for finance of the Member States whose currency is the euro and of the Commission.
Article 2
The Ministers of the Member States whose currency is the euro shall elect a president for two and a half years, by a majority of those Member States.
***
After living a life on their own, the employment policy guidelines have been integrated with the Broad Economic Policy Guidelines. For a introduction you could visit the Scadplus web pages of the Commission, Employment policy guidelines (2005 – 2008):
http://europa.eu/scadplus/leg/en/cha/c11323.htm
***
Whereas economic policy and employment policy coordination are mandatory, the coordination of member states’ social policies is an option.
For an overview of DG Employment, Social Affairs and Equal Opportunities, you could start from the DG’s homepage:
http://ec.europa.eu/employment_social/index_en.html
***
I hope that this presentation has supported, coordinated or supplemented your knowledge of EU competences. Anyway, these are the competences we are going to look at next time.
Ralf Grahn
Subscribe to:
Posts (Atom)
Subscribe To Grahnlaw
Posts
All Comments
