Not only goods, services and capital, but humans looking for work are meant to be able to move freely within the European Community (European Union).
We take a brief look at what the freedom of movement of workers looks like at treaty level, when the Treaty of Lisbon has entered into force.
***
We continue our study of Part Three ‘Policies and internal actions of the Union’ in the light of the Lisbon Treaty.
Title III ‘Free movement of persons, services and capital’ of the Treaty establishing the European Community (TEC), first becomes Title III with the same name of the Treaty of Lisbon (ToL) version of the Treaty on the Functioning of the European Union (TFEU), later to be renumbered Title IV.
Chapter 1 ‘Workers’ retains its name and number throughout. (See OJ 17.12.2007 C 306/207-208.)
***
Arriving at Article 39 TEC the intergovernmental conference (IGC 2007) was far from loquacious (OJ 17.12.2007 C 306/54):
FREE MOVEMENT OF WORKERS
50) In Article 39(3)(d), the word ‘implementing’ shall be deleted.
***
With one word to delete, we have a certain need to find the precious rest of the provision. The latest consolidated version of the current TEU and TEC is found in OJ 29.12.2006 C 321 E/57-58:
TITLE III
FREE MOVEMENT OF PERSONS, SERVICES AND CAPITAL
CHAPTER 1
WORKERS
Article 39 TEC
1. Freedom of movement for workers shall be secured within the Community.
2. Such freedom of movement shall entail the abolition of any discrimination based on nationality between workers of the Member States as regards employment, remuneration and other conditions of work and employment.
3. It shall entail the right, subject to limitations justified on grounds of public policy, public security or public health:
(a) to accept offers of employment actually made;
(b) to move freely within the territory of Member States for this purpose;
(c) to stay in a Member State for the purpose of employment in accordance with the provisions governing the employment of nationals of that State laid down by law, regulation or administrative action;
(d) to remain in the territory of a Member State after having been employed in that State, subject to conditions which shall be embodied in implementing regulations to be drawn up by the Commission.
4. The provisions of this Article shall not apply to employment in the public service.
***
A consolidated Lisbon Treaty version of an Article builds upon the express amendments (here only one), possible horizontal amendments and the future renumbering. Indicating the setting of the provision, we should end up with the following result:
Part Three ‘Policies and internal actions of the Union’
Title III (renumbered Title IV) ‘Free movement of persons, services and capital’
Chapter 1 ‘Workers’
Article 39 TFEU (ToL), renumbered Article 45 TFEU
1. Freedom of movement for workers shall be secured within the Union.
2. Such freedom of movement shall entail the abolition of any discrimination based on nationality between workers of the Member States as regards employment, remuneration and other conditions of work and employment.
3. It shall entail the right, subject to limitations justified on grounds of public policy, public security or public health:
(a) to accept offers of employment actually made;
(b) to move freely within the territory of Member States for this purpose;
(c) to stay in a Member State for the purpose of employment in accordance with the provisions governing the employment of nationals of that State laid down by law, regulation or administrative action;
(d) to remain in the territory of a Member State after having been employed in that State, subject to conditions which shall be embodied in regulations to be drawn up by the Commission.
4. The provisions of this Article shall not apply to employment in the public service.
***
In Article III-18 of the draft Treaty establishing a Constitution for Europe nothing changed the substance of the provision, but some readers may prefer the plain language of the European Convention in a few details while others may miss the formula ‘freedom of movement for workers’ (OJ 18.7.2003 C 169/31):
SECTION 2
Free movement of persons and services
Subsection 1
Workers
Article III-18 Draft Constitution
1. Workers shall have the right to move freely within the Union.
2. Any discrimination based on nationality between workers of the Member States as regards employment, remuneration and other conditions of work and employment shall be prohibited.
3. Workers shall have the right, subject to limitations justified on grounds of public policy, public security or public health:
(a) to accept offers of employment actually made;
(b) to move freely within the territory of Member States for this purpose;
(c) to stay in a Member State for the purpose of employment in accordance with the provisions governing the employment of nationals of that State laid down by law, regulation or administrative action;
(d) to remain in the territory of a Member State after having been employed in that State, subject to conditions which shall be embodied in European regulations adopted by the Commission.
4. This Article shall not apply to employment in the public service.
***
The corresponding Article III-133 of the Treaty establishing a Constitution for Europe repeated the text of the draft word for word, so the Lisbon Treaty can be said to have reverted to the TEC text, as far as there are any differences, and none of them material.
***
The reader who wants to begin exploring the right to move freely can start from the Commission’s pages on Employment and Social Affairs, Free Movement of Workers ‘Free Movement of Workers and the Principle of Equal Treatment’ and the links offered:
http://ec.europa.eu/employment_social/free_movement/index_en.htm
Ralf Grahn
Monday, 31 March 2008
Sunday, 30 March 2008
EU TFEU: Agricultural countervailing import and export charges
If EU agriculutural products are outside a common market organisation and the internal market is disrupted by national measures, the Commission can decide on countervailing charges to offset the imbalance.
***
Article 38 of the Treaty establishing the European Community (TEC) is one of those provisions, where the intergovernmental conference (IGC 2007) had nothing specific to say in the Treaty of Lisbon (ToL). Cf. OJ 17.12.2007 C 306/54.
We fetch the current Article 38 TEC from the latest consolidated version of the treaties (OJ 29.12.2006 C 321 E/57), add the numbering of the Tables of equivalences as well as the headings indicating the context of the provision (OJ 17.12.2007 C 306/207-208) and watch out for possible horizontal amendments (none, as far as I see). Here is what the Article should look like, before we check against a few earlier consolidations (IIEA, FCO, Statewatch and Fischer):
Part Three Policies and internal actions of the Union
Title II (renumbered Title III) Agriculture and fisheries
Article 38 TFEU (ToL), renumbered Article 44 TFEU
Where in a Member State a product is subject to a national market organisation or to internal rules having equivalent effect which affect the competitive position of similar production in another Member State, a countervailing charge shall be applied by Member States to imports of this product coming from the Member State where such organisation or rules exist, unless that State applies a countervailing charge on export.
The Commission shall fix the amount of these charges at the level required to redress the balance; it may also authorise other measures, the conditions and details of which it shall determine.
***
If we look at the draft Treaty establishing a Constitution for Europe, we notice only the more developed terminology for statutory instruments proposed by the European Convention and abandoned by the Lisbon Treaty as part of the ‘constitutional concept’ (OJ 18.7.2003 C 169/52):
Article III-128 Draft Constitution
Where in a Member State a product is subject to a national market organisation or to internal rules having equivalent effect which affect the competitive position of similar production in another Member State, a countervailing charge shall be applied by Member States to imports of this product coming from the Member State where such organisation or rules exist, unless that State applies a countervailing charge on export.
The Commission shall adopt European regulations or decisions fixing the amount of these charges at the level required to redress the balance; it may also authorise other measures, the conditions and details of which it shall determine.
***
The corresponding Article III-232 of the Treaty establishing a Constitution for Europe divided the last sentence into two (instead of using a semicolon), but otherwise adopted the draft text wholesale (OJ 16.12.2004 C 310/102).
***
Countervailing duties (counterbalancing or offsetting) are perhaps more generally known in international trade, but ‘duties’ and ‘charges’ are used interchangeably, and no customs duties were supposed to exist within the then common market (wholly replaced by the term ‘internal market’ by the Lisbon Treaty). And the common agricultural policy (CAP) aims at instituting a common market for agricultural goods, too.
The provision concerns only a small part of agricultural products, namely those outside a common market organisation.
Ralf Grahn
***
Article 38 of the Treaty establishing the European Community (TEC) is one of those provisions, where the intergovernmental conference (IGC 2007) had nothing specific to say in the Treaty of Lisbon (ToL). Cf. OJ 17.12.2007 C 306/54.
We fetch the current Article 38 TEC from the latest consolidated version of the treaties (OJ 29.12.2006 C 321 E/57), add the numbering of the Tables of equivalences as well as the headings indicating the context of the provision (OJ 17.12.2007 C 306/207-208) and watch out for possible horizontal amendments (none, as far as I see). Here is what the Article should look like, before we check against a few earlier consolidations (IIEA, FCO, Statewatch and Fischer):
Part Three Policies and internal actions of the Union
Title II (renumbered Title III) Agriculture and fisheries
Article 38 TFEU (ToL), renumbered Article 44 TFEU
Where in a Member State a product is subject to a national market organisation or to internal rules having equivalent effect which affect the competitive position of similar production in another Member State, a countervailing charge shall be applied by Member States to imports of this product coming from the Member State where such organisation or rules exist, unless that State applies a countervailing charge on export.
The Commission shall fix the amount of these charges at the level required to redress the balance; it may also authorise other measures, the conditions and details of which it shall determine.
***
If we look at the draft Treaty establishing a Constitution for Europe, we notice only the more developed terminology for statutory instruments proposed by the European Convention and abandoned by the Lisbon Treaty as part of the ‘constitutional concept’ (OJ 18.7.2003 C 169/52):
Article III-128 Draft Constitution
Where in a Member State a product is subject to a national market organisation or to internal rules having equivalent effect which affect the competitive position of similar production in another Member State, a countervailing charge shall be applied by Member States to imports of this product coming from the Member State where such organisation or rules exist, unless that State applies a countervailing charge on export.
The Commission shall adopt European regulations or decisions fixing the amount of these charges at the level required to redress the balance; it may also authorise other measures, the conditions and details of which it shall determine.
***
The corresponding Article III-232 of the Treaty establishing a Constitution for Europe divided the last sentence into two (instead of using a semicolon), but otherwise adopted the draft text wholesale (OJ 16.12.2004 C 310/102).
***
Countervailing duties (counterbalancing or offsetting) are perhaps more generally known in international trade, but ‘duties’ and ‘charges’ are used interchangeably, and no customs duties were supposed to exist within the then common market (wholly replaced by the term ‘internal market’ by the Lisbon Treaty). And the common agricultural policy (CAP) aims at instituting a common market for agricultural goods, too.
The provision concerns only a small part of agricultural products, namely those outside a common market organisation.
Ralf Grahn
Saturday, 29 March 2008
EU TFEU: Agricultural legislation and decisions
The Treaty of Lisbon enhances the powers of the European Parliament to co-legislate on the fundamental aspects of the common agricultural policy (CAP) of the European Union, but the Commission proposes and the Council disposes in all concrete matters concerning agriculture and fisheries even when the Lisbon Treaty has entered into force.
Once again we see a provision where the real originator of the amending Lisbon Treaty is the European Convention, chaired by Valéry Giscard d’Estaing.
***
Point 49 of the Treaty of Lisbon (ToL) takes on Article 37 of the Treaty establishing the European Community. Here is what the intergovernmental conference (IGC 20007) had to say about the provision, which becomes part of the renamed Treaty on the Functioning of the European Union (TFEU). See Official Journal (OJ) 17.12.2007 C 306/53-54:
49) Article 37 shall be amended as follows:
(a) paragraph 1 shall be deleted;
(b) paragraph 2 shall be renumbered 1; the words ‘Having taken into account the work of the Conference provided for in paragraph 1, after consulting the Economic and Social Committee and within two years of the entry into force of the Treaty, the Commission shall submit proposals’ shall be replaced by ‘The Commission shall submit proposals’, and the third subparagraph shall be deleted;
(c) the following paragraphs shall be inserted as new paragraphs 2 and 3, and the remaining paragraphs shall be renumbered accordingly:
‘2. The European Parliament and the Council, acting in accordance with the ordinary legislative procedure and after consulting the Economic and Social Committee, shall establish the common organisation of agricultural markets provided for in Article 34(1) and the other provisions necessary for the pursuit of the objectives of the common agricultural policy and the common fisheries policy;
3. The Council, on a proposal from the Commission, shall adopt measures on fixing prices, levies, aid and quantitative limitations and on the fixing and allocation of fishing opportunities.’;
(d) in the introductory words to paragraph 3 renumbered 4, the words ‘The Council may, acting by a qualified majority and in accordance with paragraph 2, replace the national market organisations by the common organisation’ shall be replaced by ‘In accordance with paragraph 2, the national market organisations may be replaced by the common organisation’;
(e) at the beginning of paragraph 4 renumbered 5, a change shall be made to the French which does not concern the English version.
***
Because nobody can be sure that the Lisbon Treaty will survive the ratification gauntlet, the IGC 2007 shows its paternal concern by stimulating our reading of the current treaties. The latest consolidated version of the treaties and, more precisely, the provision is found in OJ 29.12.2006 C 321 E/56, where it fills the whole page:
Article 37 TEC
1. In order to evolve the broad lines of a common agricultural policy, the Commission shall, immediately this Treaty enters into force, convene a conference of the Member States with a view to making a comparison of their agricultural policies, in particular by producing a statement of their resources and needs.
2. Having taken into account the work of the Conference provided for in paragraph 1, after consulting the Economic and Social Committee and within two years of the entry into force of this Treaty, the Commission shall submit proposals for working out and implementing the common agricultural policy, including the replacement of the national organisations by one of the forms of common organisation provided for in Article 34(1), and for implementing the measures specified in this title.
These proposals shall take account of the interdependence of the agricultural matters mentioned in this title.
The Council shall, on a proposal from the Commission and after consulting the European Parliament, acting by a qualified majority, make regulations, issue directives, or take decisions, without prejudice to any recommendations it may also make.
3. The Council may, acting by a qualified majority and in accordance with paragraph 2, replace the national market organisations by the common organisation provided for in Article 34(1) if:
(a) the common organisation offers Member States which are opposed to this measure and which have an organisation of their own for the production in question equivalent safeguards for the employment and standard of living of the producers concerned, account being taken of the adjustments that will be possible and the specialisation that will be needed with the passage of time;
(b) such an organisation ensures conditions for trade within the Community similar to those existing in a national market.
4. If a common organisation for certain raw materials is established before a common organisation exists for the corresponding processed products, such raw materials as are used for processed products intended for export to third countries may be imported from outside the Community.
***
Acquainted with the situation ‘de lege lata’ we have to consider the chance that an EU treaty reform could actually enter into force this time around. Express amendments, horizontal amendments and renumbering (including referrals) have to be joined to achieve the wording ‘de lege ferenda’, and we superimpose the context of the Article:
Part Three Policies and internal actions of the Union
Title II (renumbered Title III) Agriculture and fisheries
Article 37 TFEU (ToL), renumbered Article 43 TFEU
1. The Commission shall submit proposals for working out and implementing the common agricultural policy, including the replacement of the national organisations by one of the forms of common organisation provided for in Article 34(1) [ToL, renumbered Article 40(1) TFEU], and for implementing the measures specified in this title.
These proposals shall take account of the interdependence of the agricultural matters mentioned in this title.
2. The European Parliament and the Council, acting in accordance with the ordinary legislative procedure and after consulting the Economic and Social Committee, shall establish the common organisation of agricultural markets provided for in Article 34(1) [ToL, renumbered Article 40(1) TFEU] and the other provisions necessary for the pursuit of the objectives of the common agricultural policy and the common fisheries policy.
3. The Council, on a proposal from the Commission, shall adopt measures on fixing prices, levies, aid and quantitative limitations and on the fixing and allocation of fishing opportunities.
4. In accordance with paragraph 2, the national market organisations may be replaced by the common organisation provided for in Article 34(1) [ToL, renumbered Article 40(1) TFEU] if:
(a) the common organisation offers Member States which are opposed to this measure and which have an organisation of their own for the production in question equivalent safeguards for the employment and standard of living of the producers concerned, account being taken of the adjustments that will be possible and the specialisation that will be needed with the passage of time;
(b) such an organisation ensures conditions for trade within the Union similar to those existing in a national market.
5. If a common organisation for certain raw materials is established before a common organisation exists for the corresponding processed products, such raw materials as are used for processed products intended for export to third countries may be imported from outside the Union.
***
Even a short consolidation exercise easily leads to error, so I use the opportunity to check my result against some of those who have gone before me, namely the IIEA, FCO, Statewatch and Fischer consolidations.
More exact references to these and other existing as well as coming consolidated language versions are to be found in today’s earlier post ‘Consolidated EU Lisbon Treaty Update 29 March 2008’, including the Post Scriptum:
http://grahnlaw.blogspot.com/2008/03/consolidated-eu-lisbon-treaty-update-29.html
***
You are now offered the following piece in the jigsaw puzzle. The European Convention proposed the following Article III-127 of the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/52):
Article III-127 Draft Constitution
1. The Commission shall submit proposals for working out and implementing the common agricultural policy, including the replacement of the national organisations by one of the forms of common organisation provided for in Article III- 124(1), and for implementing the measures referred to in this Section.
These proposals shall take account of the interdependence of the agricultural matters mentioned in this Section.
2. European laws or framework laws shall establish the common organisation of the market provided for in Article III- 124(1) and the other provisions necessary for the achievement of the objectives of the common agricultural policy and the common fisheries policy. They shall be adopted after consultation of the Economic and Social Committee.
3. The Council of Ministers, on a proposal from the Commission, shall adopt the European regulations or decisions on fixing prices, levies, aid and quantitative limitations and on the fixing and allocation of fishing opportunities.
4. In accordance with paragraph 2, the national market organisations may be replaced by the common organisation provided for in Article III-124(1) if:
(a) the common organisation offers Member States which are opposed to this measure and which have an organisation of their own for the production in question equivalent safeguards for the employment and standard of living of the producers concerned, account being taken of the adjustments that will be possible and the specialisation that will be needed with the passage of time;
(b) such an organisation ensures conditions for trade within the Union similar to those existing in a national market.
5. If a common organisation for certain raw materials is established before a common organisation exists for the corresponding processed products, such raw materials as are used for processed products intended for export to third countries may be imported from outside the Union.
***
You can draw your own conclusions, but I would say that once more what little change there is between the current TEC and the ToL can essentially be credited to the European Convention.
Terminology and referrals apart, the structure of draft Constitution and the ToL provision is identical and the wording almost so. The visible or substantial amendments were the following:
Article 37(1) and the beginning of paragraph 2 had become obsolete by the Conference of Stresa (1958) and the subsequent decisions, at the beginning of the 1960’s, to launch the common agricultural policy (CAP). Deleting these references was a tidying up exercise.
The European Parliament was strengthened by giving it co-decision powers concerning the upper level of secondary norms, instead of mere consultative powers.
Although acting on proposals by the Commission, the Council retained its extensive powers to make the concrete CAP decisions.
***
There is not that much to add about the corresponding Article III-231 of the Treaty establishing a Constitution for Europe (OJ 16.12.2004 C 310/101-102). I counted four instances of different wording, but without material effect.
***
Curiosity has been a noteworthy human trait, at least from the Garden of Eden, so let us take a look at one change of no concern to us, as the IGC 2007 told us in point 49(e).
What happens to the French version without touching upon the English one?
Point 49(e) offers us the beginning of an answer (JO 17.12.2007 C 306/55):
e) dans le premier membre de phrase du paragraphe 4 renuméroté 5, le mot «existe» est remplacé par «n'existe».
Perhaps the rest will be evident if we look at the French version of Article 37 TEC (JO 29.12.2006 C 321 E/56):
4. S’il est créé une organisation commune pour certaines matières premières, sans qu’il existe encore une organisation commune pour les produits de transformation correspondants, les matières premières en cause utilisées pour les produits de transformation destinés à l’exportation vers les pays tiers peuvent être importées de l’extérieur de la Communauté.
So, we have been confronted with one of the wonders of French grammar; by the way, an error uncorrected in the draft Constitution but remedied in the Constitutional Treaty. The IGC 2004 did some good, after all. Now the ungrateful French have to wait at least until the beginning of 2009 to enjoy the fruits of its labours.
Ralf Grahn
Once again we see a provision where the real originator of the amending Lisbon Treaty is the European Convention, chaired by Valéry Giscard d’Estaing.
***
Point 49 of the Treaty of Lisbon (ToL) takes on Article 37 of the Treaty establishing the European Community. Here is what the intergovernmental conference (IGC 20007) had to say about the provision, which becomes part of the renamed Treaty on the Functioning of the European Union (TFEU). See Official Journal (OJ) 17.12.2007 C 306/53-54:
49) Article 37 shall be amended as follows:
(a) paragraph 1 shall be deleted;
(b) paragraph 2 shall be renumbered 1; the words ‘Having taken into account the work of the Conference provided for in paragraph 1, after consulting the Economic and Social Committee and within two years of the entry into force of the Treaty, the Commission shall submit proposals’ shall be replaced by ‘The Commission shall submit proposals’, and the third subparagraph shall be deleted;
(c) the following paragraphs shall be inserted as new paragraphs 2 and 3, and the remaining paragraphs shall be renumbered accordingly:
‘2. The European Parliament and the Council, acting in accordance with the ordinary legislative procedure and after consulting the Economic and Social Committee, shall establish the common organisation of agricultural markets provided for in Article 34(1) and the other provisions necessary for the pursuit of the objectives of the common agricultural policy and the common fisheries policy;
3. The Council, on a proposal from the Commission, shall adopt measures on fixing prices, levies, aid and quantitative limitations and on the fixing and allocation of fishing opportunities.’;
(d) in the introductory words to paragraph 3 renumbered 4, the words ‘The Council may, acting by a qualified majority and in accordance with paragraph 2, replace the national market organisations by the common organisation’ shall be replaced by ‘In accordance with paragraph 2, the national market organisations may be replaced by the common organisation’;
(e) at the beginning of paragraph 4 renumbered 5, a change shall be made to the French which does not concern the English version.
***
Because nobody can be sure that the Lisbon Treaty will survive the ratification gauntlet, the IGC 2007 shows its paternal concern by stimulating our reading of the current treaties. The latest consolidated version of the treaties and, more precisely, the provision is found in OJ 29.12.2006 C 321 E/56, where it fills the whole page:
Article 37 TEC
1. In order to evolve the broad lines of a common agricultural policy, the Commission shall, immediately this Treaty enters into force, convene a conference of the Member States with a view to making a comparison of their agricultural policies, in particular by producing a statement of their resources and needs.
2. Having taken into account the work of the Conference provided for in paragraph 1, after consulting the Economic and Social Committee and within two years of the entry into force of this Treaty, the Commission shall submit proposals for working out and implementing the common agricultural policy, including the replacement of the national organisations by one of the forms of common organisation provided for in Article 34(1), and for implementing the measures specified in this title.
These proposals shall take account of the interdependence of the agricultural matters mentioned in this title.
The Council shall, on a proposal from the Commission and after consulting the European Parliament, acting by a qualified majority, make regulations, issue directives, or take decisions, without prejudice to any recommendations it may also make.
3. The Council may, acting by a qualified majority and in accordance with paragraph 2, replace the national market organisations by the common organisation provided for in Article 34(1) if:
(a) the common organisation offers Member States which are opposed to this measure and which have an organisation of their own for the production in question equivalent safeguards for the employment and standard of living of the producers concerned, account being taken of the adjustments that will be possible and the specialisation that will be needed with the passage of time;
(b) such an organisation ensures conditions for trade within the Community similar to those existing in a national market.
4. If a common organisation for certain raw materials is established before a common organisation exists for the corresponding processed products, such raw materials as are used for processed products intended for export to third countries may be imported from outside the Community.
***
Acquainted with the situation ‘de lege lata’ we have to consider the chance that an EU treaty reform could actually enter into force this time around. Express amendments, horizontal amendments and renumbering (including referrals) have to be joined to achieve the wording ‘de lege ferenda’, and we superimpose the context of the Article:
Part Three Policies and internal actions of the Union
Title II (renumbered Title III) Agriculture and fisheries
Article 37 TFEU (ToL), renumbered Article 43 TFEU
1. The Commission shall submit proposals for working out and implementing the common agricultural policy, including the replacement of the national organisations by one of the forms of common organisation provided for in Article 34(1) [ToL, renumbered Article 40(1) TFEU], and for implementing the measures specified in this title.
These proposals shall take account of the interdependence of the agricultural matters mentioned in this title.
2. The European Parliament and the Council, acting in accordance with the ordinary legislative procedure and after consulting the Economic and Social Committee, shall establish the common organisation of agricultural markets provided for in Article 34(1) [ToL, renumbered Article 40(1) TFEU] and the other provisions necessary for the pursuit of the objectives of the common agricultural policy and the common fisheries policy.
3. The Council, on a proposal from the Commission, shall adopt measures on fixing prices, levies, aid and quantitative limitations and on the fixing and allocation of fishing opportunities.
4. In accordance with paragraph 2, the national market organisations may be replaced by the common organisation provided for in Article 34(1) [ToL, renumbered Article 40(1) TFEU] if:
(a) the common organisation offers Member States which are opposed to this measure and which have an organisation of their own for the production in question equivalent safeguards for the employment and standard of living of the producers concerned, account being taken of the adjustments that will be possible and the specialisation that will be needed with the passage of time;
(b) such an organisation ensures conditions for trade within the Union similar to those existing in a national market.
5. If a common organisation for certain raw materials is established before a common organisation exists for the corresponding processed products, such raw materials as are used for processed products intended for export to third countries may be imported from outside the Union.
***
Even a short consolidation exercise easily leads to error, so I use the opportunity to check my result against some of those who have gone before me, namely the IIEA, FCO, Statewatch and Fischer consolidations.
More exact references to these and other existing as well as coming consolidated language versions are to be found in today’s earlier post ‘Consolidated EU Lisbon Treaty Update 29 March 2008’, including the Post Scriptum:
http://grahnlaw.blogspot.com/2008/03/consolidated-eu-lisbon-treaty-update-29.html
***
You are now offered the following piece in the jigsaw puzzle. The European Convention proposed the following Article III-127 of the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/52):
Article III-127 Draft Constitution
1. The Commission shall submit proposals for working out and implementing the common agricultural policy, including the replacement of the national organisations by one of the forms of common organisation provided for in Article III- 124(1), and for implementing the measures referred to in this Section.
These proposals shall take account of the interdependence of the agricultural matters mentioned in this Section.
2. European laws or framework laws shall establish the common organisation of the market provided for in Article III- 124(1) and the other provisions necessary for the achievement of the objectives of the common agricultural policy and the common fisheries policy. They shall be adopted after consultation of the Economic and Social Committee.
3. The Council of Ministers, on a proposal from the Commission, shall adopt the European regulations or decisions on fixing prices, levies, aid and quantitative limitations and on the fixing and allocation of fishing opportunities.
4. In accordance with paragraph 2, the national market organisations may be replaced by the common organisation provided for in Article III-124(1) if:
(a) the common organisation offers Member States which are opposed to this measure and which have an organisation of their own for the production in question equivalent safeguards for the employment and standard of living of the producers concerned, account being taken of the adjustments that will be possible and the specialisation that will be needed with the passage of time;
(b) such an organisation ensures conditions for trade within the Union similar to those existing in a national market.
5. If a common organisation for certain raw materials is established before a common organisation exists for the corresponding processed products, such raw materials as are used for processed products intended for export to third countries may be imported from outside the Union.
***
You can draw your own conclusions, but I would say that once more what little change there is between the current TEC and the ToL can essentially be credited to the European Convention.
Terminology and referrals apart, the structure of draft Constitution and the ToL provision is identical and the wording almost so. The visible or substantial amendments were the following:
Article 37(1) and the beginning of paragraph 2 had become obsolete by the Conference of Stresa (1958) and the subsequent decisions, at the beginning of the 1960’s, to launch the common agricultural policy (CAP). Deleting these references was a tidying up exercise.
The European Parliament was strengthened by giving it co-decision powers concerning the upper level of secondary norms, instead of mere consultative powers.
Although acting on proposals by the Commission, the Council retained its extensive powers to make the concrete CAP decisions.
***
There is not that much to add about the corresponding Article III-231 of the Treaty establishing a Constitution for Europe (OJ 16.12.2004 C 310/101-102). I counted four instances of different wording, but without material effect.
***
Curiosity has been a noteworthy human trait, at least from the Garden of Eden, so let us take a look at one change of no concern to us, as the IGC 2007 told us in point 49(e).
What happens to the French version without touching upon the English one?
Point 49(e) offers us the beginning of an answer (JO 17.12.2007 C 306/55):
e) dans le premier membre de phrase du paragraphe 4 renuméroté 5, le mot «existe» est remplacé par «n'existe».
Perhaps the rest will be evident if we look at the French version of Article 37 TEC (JO 29.12.2006 C 321 E/56):
4. S’il est créé une organisation commune pour certaines matières premières, sans qu’il existe encore une organisation commune pour les produits de transformation correspondants, les matières premières en cause utilisées pour les produits de transformation destinés à l’exportation vers les pays tiers peuvent être importées de l’extérieur de la Communauté.
So, we have been confronted with one of the wonders of French grammar; by the way, an error uncorrected in the draft Constitution but remedied in the Constitutional Treaty. The IGC 2004 did some good, after all. Now the ungrateful French have to wait at least until the beginning of 2009 to enjoy the fruits of its labours.
Ralf Grahn
Consolidated EU Lisbon Treaty Update 29 March 2008
My search for readable, consolidated versions of the coming EU Reform Treaty, the Treaty of Lisbon, started in October 2007 and continues until the Council has published consolidated versions of the Lisbon Treaty in every official language of the European Union.
The goal is in sight, but we are not yet there. Therefore I want to present a short update, which builds on the latest relevant posts.
***
The latest overview of existing consolidated language versions is to be found in the 5 March 2008 post ‘EU UE: Lisbon Lissabon Lisboa Lisbonne Lisbona Lisboa’:
http://grahnlaw.blogspot.com/2008/03/eu-ue-lisbon-lissabon-lisboa-lisbonne.html
***
Then there is the 25 March 2008 addendum ‘Complete French Consolidated Lisbon Treaty’ about two language versions. The Swedish pocket version has now been published, and since the post I have received my own copy. It was a positive surprise that it contains the Charter of Fundamental Rights, Protocols, a Table of equivalences and a five page Register in addition to the consolidated treaty texts.
The post spread the announcement of a new French consolidated version by Christine Kaddous and Fabrice Picod:
http://grahnlaw.blogspot.com/2008/03/complete-french-consolidated-lisbon.html
***
The latest addition was the confirmation in the press release of the government of Finland that the Council is actually going to publish consolidated versions of the Treaty of Lisbon in every official language of the European Union, in April. See the 27 March 2008 post ‘Finland: EU Lisbon Treaty ratification bill’
http://grahnlaw.blogspot.com/2008/03/finland-eu-lisbon-treaty-ratification.html
***
Naturally, it is a great step forward when there are consolidated versions of the Lisbon Treaty available to all EU citizens, but experience has shown that both printed and other web versions are still in demand.
In order to keep the readers of this blog informed, I appreciate if you tell me about new consolidations and secondary literature on the Treaty of Lisbon (and the European Union in general), such as official documents, brochures, commentaries, scholarly assessments and textbooks in different languages.
Ralf Grahn
P.S. Updated update: The Commission has quietly updated its Questions and Answers section about the Lisbon Treaty in the following way:
“A consolidated version of the Treaty will be published on 15 April on the web and on 9 May on paper version.”
http://europa.eu/lisbon_treaty/faq/index_en.htm#20
The goal is in sight, but we are not yet there. Therefore I want to present a short update, which builds on the latest relevant posts.
***
The latest overview of existing consolidated language versions is to be found in the 5 March 2008 post ‘EU UE: Lisbon Lissabon Lisboa Lisbonne Lisbona Lisboa’:
http://grahnlaw.blogspot.com/2008/03/eu-ue-lisbon-lissabon-lisboa-lisbonne.html
***
Then there is the 25 March 2008 addendum ‘Complete French Consolidated Lisbon Treaty’ about two language versions. The Swedish pocket version has now been published, and since the post I have received my own copy. It was a positive surprise that it contains the Charter of Fundamental Rights, Protocols, a Table of equivalences and a five page Register in addition to the consolidated treaty texts.
The post spread the announcement of a new French consolidated version by Christine Kaddous and Fabrice Picod:
http://grahnlaw.blogspot.com/2008/03/complete-french-consolidated-lisbon.html
***
The latest addition was the confirmation in the press release of the government of Finland that the Council is actually going to publish consolidated versions of the Treaty of Lisbon in every official language of the European Union, in April. See the 27 March 2008 post ‘Finland: EU Lisbon Treaty ratification bill’
http://grahnlaw.blogspot.com/2008/03/finland-eu-lisbon-treaty-ratification.html
***
Naturally, it is a great step forward when there are consolidated versions of the Lisbon Treaty available to all EU citizens, but experience has shown that both printed and other web versions are still in demand.
In order to keep the readers of this blog informed, I appreciate if you tell me about new consolidations and secondary literature on the Treaty of Lisbon (and the European Union in general), such as official documents, brochures, commentaries, scholarly assessments and textbooks in different languages.
Ralf Grahn
P.S. Updated update: The Commission has quietly updated its Questions and Answers section about the Lisbon Treaty in the following way:
“A consolidated version of the Treaty will be published on 15 April on the web and on 9 May on paper version.”
http://europa.eu/lisbon_treaty/faq/index_en.htm#20
Friday, 28 March 2008
EU TFEU: CAP competition rules and state aid
In principle, the common agricultural policy (CAP) is exempt from the rules on competition and state aid deemed beneficial for the internal market in general. The European Union’s Treaty of Lisbon extends the European Parliament’s power to co-legislate, but changes nothing in substance at the treaty level.
On the other hand, at the level of secondary legislation a more nuanced picture emerges regarding the role of competition and state aid in production of and trade in agricultural products.
***
We arrive at Article 36 of the Treaty establishing the European Community (TEC). The intergovernmental conference (IGC 2007) actually mentions amendments to be made in what becomes the Treaty on the Functioning of the European Union (TFEU). Here is what the Treaty of Lisbon (ToL) has to say (OJ 17.12.2007 C 306/53):
48) Article 36 shall be amended as follows:
(a) in the first paragraph, the words ‘the European Parliament and’ shall be inserted before ‘the Council’ and the words ‘and (3)’ shall be deleted;
(b) in the second paragraph, the introductory sentence shall be replaced by the following:
‘The Council, on a proposal from the Commission, may authorise the granting of aid:’.
***
Bringing the proposed amendments into context requires a trip to the current Article 36 TEC (found in the latest consolidated version of the existing treaties, OJ 29.12.2006 C 321 E/55):
Article 36 TEC
The provisions of the Chapter relating to rules on competition shall apply to production of and trade in agricultural products only to the extent determined by the Council within the framework of Article 37(2) and (3) and in accordance with the procedure laid down therein, account being taken of the objectives set out in Article 33.
The Council may, in particular, authorise the granting of aid:
(a) for the protection of enterprises handicapped by structural or natural conditions;
(b) within the framework of economic development programmes.
***
The new Lisbon Treaty wording is achieved by inserting the express amendments, adding the context of the provision and taking note of the future renumbering of the Article in question and its referrals (OJ 17.12.2007 C 306/207). No horizontal amendments seem to apply, so the amended Article 36 should look like this:
Part Three Policies and internal actions of the Union
Title II (renumbered Title III) Agriculture and fisheries
Article 36 TFEU (ToL), renumbered Article 42 TFEU
The provisions of the Chapter relating to rules on competition shall apply to production of and trade in agricultural products only to the extent determined by the European Parliament and the Council within the framework of Article 37(2) [ToL, renumbered Article 43(2) TFEU] and in accordance with the procedure laid down therein, account being taken of the objectives set out in Article 33 [ToL, renumbered Article 39 TFEU].
The Council, on a proposal from the Commission, may authorise the granting of aid:
(a) for the protection of enterprises handicapped by structural or natural conditions;
(b) within the framework of economic development programmes.
***
The European Convention presented its view in Article III-126 of the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/52):
Article III-126 Draft Constitution
1. The Section relating to rules on competition shall apply to production of and trade in agricultural products only to the extent determined by European laws or framework laws in accordance with Article III-127(2), having regard to the objectives set out in Article III-123.
2. The Council of Ministers, on a proposal from the Commission, may adopt a European regulation or decision authorising the granting of aid:
(a) for the protection of enterprises handicapped by structural or natural conditions;
(b) within the framework of economic development programmes.
***
European laws or framework laws meant the ordinary legislative procedure, where the Commission makes a proposal and the Council and the European Parliament acts as joint legislators. In the first paragraph the draft Constitution upgraded the European Parliament from being merely consulted.
The second paragraph added the mention that the Council authorises the granting of aid on a proposal from the Commission. But was this a real change, taking Article 37 TEC into account?
***
Article III-230 of the Treaty establishing a Constitution for Europe was practically the same as the draft Constitution (OJ 16.12.2004 C 310/101).
***
In principle, normal EC (EU) competition and state aid rules do not apply to agricultural production and trade within the context of the CAP. On the contrary, examples of state aid which can be authorised are mentioned.
A general search of EC competition policy can start from the Commission’s Competition web page:
http://ec.europa.eu/comm/competition/index_en.html
The reader who desires an introduction to state aid rules could take a look at the Commission’s web page ‘State Aid control – Overview’:
http://ec.europa.eu/comm/competition/state_aid/overview/index_en.cfm
‘Vademecum Community rules on state aid’, with a view to Structural Fund operations and last updated 15 February 2007:
http://ec.europa.eu/comm/competition/state_aid/studies_reports/vademecum_on_rules_2007_en.pdf
***
In practice, the common agricultural policy (CAP) is less averse to the competition and state aid rules of European Community (European Union) than the main principle mentioned above would lead one to believe.
Take note of Council Regulation (EC) No 1184/2006 of 24 July 2006 applying certain rules of competition to the production of, and trade in, agricultural products (OJ 4.8.2006 L 214/7):
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2006:214:0007:0009:EN:PDF
A presentation of state aid rules is found on the Commission’s web page Agriculture and Rural Development ‘State Aid: introduction’:
http://ec.europa.eu/agriculture/stateaid/index_en.htm
The Scadplus pages offer an introduction to ‘State aid in the agricultural sector’:
http://europa.eu/scadplus/leg/en/lvb/l11082.htm
Ralf Grahn
On the other hand, at the level of secondary legislation a more nuanced picture emerges regarding the role of competition and state aid in production of and trade in agricultural products.
***
We arrive at Article 36 of the Treaty establishing the European Community (TEC). The intergovernmental conference (IGC 2007) actually mentions amendments to be made in what becomes the Treaty on the Functioning of the European Union (TFEU). Here is what the Treaty of Lisbon (ToL) has to say (OJ 17.12.2007 C 306/53):
48) Article 36 shall be amended as follows:
(a) in the first paragraph, the words ‘the European Parliament and’ shall be inserted before ‘the Council’ and the words ‘and (3)’ shall be deleted;
(b) in the second paragraph, the introductory sentence shall be replaced by the following:
‘The Council, on a proposal from the Commission, may authorise the granting of aid:’.
***
Bringing the proposed amendments into context requires a trip to the current Article 36 TEC (found in the latest consolidated version of the existing treaties, OJ 29.12.2006 C 321 E/55):
Article 36 TEC
The provisions of the Chapter relating to rules on competition shall apply to production of and trade in agricultural products only to the extent determined by the Council within the framework of Article 37(2) and (3) and in accordance with the procedure laid down therein, account being taken of the objectives set out in Article 33.
The Council may, in particular, authorise the granting of aid:
(a) for the protection of enterprises handicapped by structural or natural conditions;
(b) within the framework of economic development programmes.
***
The new Lisbon Treaty wording is achieved by inserting the express amendments, adding the context of the provision and taking note of the future renumbering of the Article in question and its referrals (OJ 17.12.2007 C 306/207). No horizontal amendments seem to apply, so the amended Article 36 should look like this:
Part Three Policies and internal actions of the Union
Title II (renumbered Title III) Agriculture and fisheries
Article 36 TFEU (ToL), renumbered Article 42 TFEU
The provisions of the Chapter relating to rules on competition shall apply to production of and trade in agricultural products only to the extent determined by the European Parliament and the Council within the framework of Article 37(2) [ToL, renumbered Article 43(2) TFEU] and in accordance with the procedure laid down therein, account being taken of the objectives set out in Article 33 [ToL, renumbered Article 39 TFEU].
The Council, on a proposal from the Commission, may authorise the granting of aid:
(a) for the protection of enterprises handicapped by structural or natural conditions;
(b) within the framework of economic development programmes.
***
The European Convention presented its view in Article III-126 of the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/52):
Article III-126 Draft Constitution
1. The Section relating to rules on competition shall apply to production of and trade in agricultural products only to the extent determined by European laws or framework laws in accordance with Article III-127(2), having regard to the objectives set out in Article III-123.
2. The Council of Ministers, on a proposal from the Commission, may adopt a European regulation or decision authorising the granting of aid:
(a) for the protection of enterprises handicapped by structural or natural conditions;
(b) within the framework of economic development programmes.
***
European laws or framework laws meant the ordinary legislative procedure, where the Commission makes a proposal and the Council and the European Parliament acts as joint legislators. In the first paragraph the draft Constitution upgraded the European Parliament from being merely consulted.
The second paragraph added the mention that the Council authorises the granting of aid on a proposal from the Commission. But was this a real change, taking Article 37 TEC into account?
***
Article III-230 of the Treaty establishing a Constitution for Europe was practically the same as the draft Constitution (OJ 16.12.2004 C 310/101).
***
In principle, normal EC (EU) competition and state aid rules do not apply to agricultural production and trade within the context of the CAP. On the contrary, examples of state aid which can be authorised are mentioned.
A general search of EC competition policy can start from the Commission’s Competition web page:
http://ec.europa.eu/comm/competition/index_en.html
The reader who desires an introduction to state aid rules could take a look at the Commission’s web page ‘State Aid control – Overview’:
http://ec.europa.eu/comm/competition/state_aid/overview/index_en.cfm
‘Vademecum Community rules on state aid’, with a view to Structural Fund operations and last updated 15 February 2007:
http://ec.europa.eu/comm/competition/state_aid/studies_reports/vademecum_on_rules_2007_en.pdf
***
In practice, the common agricultural policy (CAP) is less averse to the competition and state aid rules of European Community (European Union) than the main principle mentioned above would lead one to believe.
Take note of Council Regulation (EC) No 1184/2006 of 24 July 2006 applying certain rules of competition to the production of, and trade in, agricultural products (OJ 4.8.2006 L 214/7):
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2006:214:0007:0009:EN:PDF
A presentation of state aid rules is found on the Commission’s web page Agriculture and Rural Development ‘State Aid: introduction’:
http://ec.europa.eu/agriculture/stateaid/index_en.htm
The Scadplus pages offer an introduction to ‘State aid in the agricultural sector’:
http://europa.eu/scadplus/leg/en/lvb/l11082.htm
Ralf Grahn
Thursday, 27 March 2008
Finland: EU Lisbon Treaty ratification bill
The government of Finland has approved the bill on ratification of the EU Treaty of Lisbon. Formally the bill is sent to the Parliament by the president tomorrow, 28 March 2008. The government’s press release recapitulates the main points of the Lisbon Treaty, and it misses only the latest of the six ratifying member states, Bulgaria.
Bearing in mind the Council’s reticence to publish consolidated versions of the amending treaty, the Finnish government’s press release confirms one interesting detail of general European interest, long awaited, namely that the Council is relenting, although the press release does not call it that.
It just states that a consolidated version of the treaties is expected to be finalised in April, in every official language of the European Union.
The press release was available in Finnish and Swedish a short while ago, but not (yet?) in English.
Ralf Grahn
Hallituksen esitys Lissabonin sopimuksen hyväksymisestä eduskunnan käsiteltäväksi; Tiedote 99/2008, Ulkoasiainministeriö, 27.3.2008 13:59;
Link in Finnish:
http://www.valtioneuvosto.fi/ajankohtaista/tiedotteet/tiedote/fi.jsp?oid=224386
Regeringens proposition om godkännande av Lissabonfördraget överlämnas till riksdagen; Pressmeddelande 99/2008, Utrikesministeriet, 27.3.2008 14:02;
Link in Swedish:
http://www.valtioneuvosto.fi/ajankohtaista/tiedotteet/tiedote/fi.jsp?oid=224388
Bearing in mind the Council’s reticence to publish consolidated versions of the amending treaty, the Finnish government’s press release confirms one interesting detail of general European interest, long awaited, namely that the Council is relenting, although the press release does not call it that.
It just states that a consolidated version of the treaties is expected to be finalised in April, in every official language of the European Union.
The press release was available in Finnish and Swedish a short while ago, but not (yet?) in English.
Ralf Grahn
Hallituksen esitys Lissabonin sopimuksen hyväksymisestä eduskunnan käsiteltäväksi; Tiedote 99/2008, Ulkoasiainministeriö, 27.3.2008 13:59;
Link in Finnish:
http://www.valtioneuvosto.fi/ajankohtaista/tiedotteet/tiedote/fi.jsp?oid=224386
Regeringens proposition om godkännande av Lissabonfördraget överlämnas till riksdagen; Pressmeddelande 99/2008, Utrikesministeriet, 27.3.2008 14:02;
Link in Swedish:
http://www.valtioneuvosto.fi/ajankohtaista/tiedotteet/tiedote/fi.jsp?oid=224388
EU TFEU: CAP flanking measures
Can the dissemination of knowledge and the promotion of foodstuffs save European agriculture?
Yes or no, the Lisbon Treaty of the European Union preserves the supporting or flanking measures of the common agricultural policy (CAP) at treaty level.
***
Article 35 of the Treaty establishing the European Community (TEC) is one of those basic provisions left without specific mention by the Treaty of Lisbon (ToL). See OJ 17.12.2007 C 306/53. The intergovernmental conference (IGC 2007) only presents the future numbering in the Tables of equivalences annexed to the Lisbon Treaty (OJ 17.12.2007 C 306/207).
We fetch the present text from the latest consolidated version of the current treaties (OJ 29.12.2006 C 321 E/55), add the framework on top and note the future numbering of the referral:
Part Three Policies and internal actions of the Union
Title II (renumbered Title III) Agriculture and fisheries
Article 35 TFEU (ToL), renumbered Article 41 TFEU
To enable the objectives set out in Article 33 [ToL, renumbered Article 39 TFEU] to be attained, provision may be made within the framework of the common agricultural policy for measures such as:
(a) an effective coordination of efforts in the spheres of vocational training, of research and of the dissemination of agricultural knowledge; this may include joint financing of projects or institutions;
(b) joint measures to promote consumption of certain products.
***
The corresponding Article of the draft Treaty establishing a Constitution for Europe was III-125 (OJ 18.7.2003 C 169/52). Naturally, the referral was different, but otherwise the wording was the same as in the current TEC.
Article III-229 was home to the corresponding, unchanged provision of the Treaty establishing a Constitution for Europe.
***
We can see a hierarchy of norms within the Title on agriculture and fisheries if we look back at the provisions we have dealt with until today:
Article 32 TFEU (ToL), renumbered Article 38 TFEU, presents the scope of the common agricultural and fisheries policy (CAP).
Article 33 TFEU (ToL), renumbered Article 39 TFEU, lists the CAP objectives (in all their post-war glory).
Article 34 TFEU (ToL), renumbered Article 40 TFEU, adds the main means to attain the goals, namely the common agricultural markets organisation.
Article 35 TFEU (ToL), renumbered Article 41 TFEU, is rather the poor relation of the preceding strong-arm provision, allowing support or flanking measures supplementing the interventionist means.
Gaining and disseminating knowledge are time-honoured crafts of modernisation.
***
Now for a subjective discussion starter (or stopper):
Joint measures to promote consumption of certain products may raise a few eyebrows. If the Commission (ultimately the member states) finds that there are lakes of fatty milk or intoxicating wine hard to dispose of, they are at liberty to devise measures to ‘force-feed’ populations already obese or intemperate.
Given the framework of CAP decision making we can not rest assured that human health or consumer considerations will top the agenda.
***
Earlier CAP posts have suggested further reading for interested citizens. An additional CAP primer is offered by the Wikipedia article ‘Common Agricultural Policy’. The article has a UK perspective, and despite the latest modification on 25 March 2008 it is in need of editing and updating, but it is still a useful introduction:
http://en.wikipedia.org/wiki/Common_Agricultural_Policy
Ralf Grahn
Yes or no, the Lisbon Treaty of the European Union preserves the supporting or flanking measures of the common agricultural policy (CAP) at treaty level.
***
Article 35 of the Treaty establishing the European Community (TEC) is one of those basic provisions left without specific mention by the Treaty of Lisbon (ToL). See OJ 17.12.2007 C 306/53. The intergovernmental conference (IGC 2007) only presents the future numbering in the Tables of equivalences annexed to the Lisbon Treaty (OJ 17.12.2007 C 306/207).
We fetch the present text from the latest consolidated version of the current treaties (OJ 29.12.2006 C 321 E/55), add the framework on top and note the future numbering of the referral:
Part Three Policies and internal actions of the Union
Title II (renumbered Title III) Agriculture and fisheries
Article 35 TFEU (ToL), renumbered Article 41 TFEU
To enable the objectives set out in Article 33 [ToL, renumbered Article 39 TFEU] to be attained, provision may be made within the framework of the common agricultural policy for measures such as:
(a) an effective coordination of efforts in the spheres of vocational training, of research and of the dissemination of agricultural knowledge; this may include joint financing of projects or institutions;
(b) joint measures to promote consumption of certain products.
***
The corresponding Article of the draft Treaty establishing a Constitution for Europe was III-125 (OJ 18.7.2003 C 169/52). Naturally, the referral was different, but otherwise the wording was the same as in the current TEC.
Article III-229 was home to the corresponding, unchanged provision of the Treaty establishing a Constitution for Europe.
***
We can see a hierarchy of norms within the Title on agriculture and fisheries if we look back at the provisions we have dealt with until today:
Article 32 TFEU (ToL), renumbered Article 38 TFEU, presents the scope of the common agricultural and fisheries policy (CAP).
Article 33 TFEU (ToL), renumbered Article 39 TFEU, lists the CAP objectives (in all their post-war glory).
Article 34 TFEU (ToL), renumbered Article 40 TFEU, adds the main means to attain the goals, namely the common agricultural markets organisation.
Article 35 TFEU (ToL), renumbered Article 41 TFEU, is rather the poor relation of the preceding strong-arm provision, allowing support or flanking measures supplementing the interventionist means.
Gaining and disseminating knowledge are time-honoured crafts of modernisation.
***
Now for a subjective discussion starter (or stopper):
Joint measures to promote consumption of certain products may raise a few eyebrows. If the Commission (ultimately the member states) finds that there are lakes of fatty milk or intoxicating wine hard to dispose of, they are at liberty to devise measures to ‘force-feed’ populations already obese or intemperate.
Given the framework of CAP decision making we can not rest assured that human health or consumer considerations will top the agenda.
***
Earlier CAP posts have suggested further reading for interested citizens. An additional CAP primer is offered by the Wikipedia article ‘Common Agricultural Policy’. The article has a UK perspective, and despite the latest modification on 25 March 2008 it is in need of editing and updating, but it is still a useful introduction:
http://en.wikipedia.org/wiki/Common_Agricultural_Policy
Ralf Grahn
Wednesday, 26 March 2008
EU TFEU: Common organisation of agricultural markets
The common agricultural policy of the European Community (European Union) progresses slowly towards an EU wide internal market in agricultural products instead of national markets, but it basically excludes the rest of the world from the benefits of free trade.
This post offers a look at the regulatory and budgetary ‘tools’ of the CAP in the light of the Lisbon Treaty, and it gives a few hints on further reading.
***
In the Treaty of Lisbon (ToL) the intergovernmental conference (IGC 2007) does not specifically mention Article 34 of the Treaty establishing the European Community (TEC) among the amendments (see OJ 17.12.2007 C 306/53).
The Treaty is renamed the Treaty on the Functioning of the European Union (TFEU). We indicate the new framework, look out for horizontal amendments (replacing ‘Community’ by ‘Union’) and take the coming renumbering into account concerning the provision and its referrals (Tables of equivalences, OJ 17.12.2007 C 306/207). This is how the provision should look according to the Lisbon Treaty, based on the latest consolidated version of the TEC (OJ 29.12.2006 C 321 E/54-55):
Part Three Policies and internal actions of the Union
Title II (renumbered Title III) Agriculture and fisheries
Article 34 TFEU (ToL), renumbered Article 40 TFEU
1. In order to attain the objectives set out in Article 33 [ToL, renumbered Article 39 TFEU] a common organisation of agricultural markets shall be established.
This organisation shall take one of the following forms, depending on the product concerned:
(a) common rules on competition;
(b) compulsory coordination of the various national market organisations;
(c) a European market organisation.
2. The common organisation established in accordance with paragraph 1 may include all measures required to attain the objectives set out in Article 33 [ToL, renumbered Article 39 TFEU], in particular regulation of prices, aids for the production and marketing of the various products, storage and carryover arrangements and common machinery for stabilising imports or exports.
The common organisation shall be limited to pursuit of the objectives set out in Article 33 [ToL, renumbered Article 39 TFEU] and shall exclude any discrimination between producers or consumers within the Union.
Any common price policy shall be based on common criteria and uniform methods of calculation.
3. In order to enable the common organisation referred to in paragraph 1 to attain its objectives, one or more agricultural guidance and guarantee funds may be set up.
***
The European Convention numbered the provision Article III-124 of the draft Treaty establishing a Constitution for Europe. The word ‘Union’ was introduced to take the place of ‘Community’ and the Article referred to was numbered differently, but otherwise not a word was changed (OJ 18.7.2003 C 169/51-52).
The IGC 2004 took over the provision as Article III-228 of the Treaty establishing a Constitution for Europe without changing the wording (OJ 16.12.2004 C 319/100-101).
***
The ‘toolbox’ offered by the provision on common market organisations allows deep cuts in the normal principles of market economy. Here is the description given by the Europa Glossary:
“The common market organisations (CMOs) represent the first pillar of the common agricultural policy (CAP). They are the fundamental market regulation tool governing the production of and trade in agricultural products in all the Member States of the European Union by:
eliminating obstacles to intra-Community trade in agricultural products;
maintaining a common customs barrier with respect to third countries.
Since the reform of the CAP in 2003, most CMOs have been subject to the new system of a single farm payment and decoupling. The Member States which joined the Union on 1 May 2004 participate directly in the new system. Changes have also been made to crisis management arrangements and environmental classification of farms.” See:
http://europa.eu/scadplus/glossary/common_agricultural_markets_en.htm
The Commission’s Scadplus web pages with summaries of legislation offer the basics on ‘Common organisation of the agricultural markets: introduction’, although the page was last updated 27 September 2004. See:
http://europa.eu/scadplus/leg/en/lvb/l11047.htm
A starting point for more up to date information, including latest news, is found on the Commission’s web pages ‘Agriculture and Rural development’:
http://ec.europa.eu/agriculture/index_en.htm
Without outsiders’ views the common agricultural policy (CAP) would be left to government and farming interest insiders. First, a reminder of the sources mentioned in yesterday’s article:
Those who want to understand the present common agricultural policy and its future can turn to the UK House of Lords European Union Committee’s report ‘The Future of the Common Agricultural Policy’, with Volume I: Report (HL Paper 54-I) and Volume II: Evidence (HL Paper 54-II) (7th Report of Session 2007-08, published 6 March 2008):
http://www.publications.parliament.uk/pa/ld200708/ldselect/ldeucom/54/54.pdf
France is known for its addiction to the CAP. The French think tank Notre Europe runs projects which aim at budget reform and CAP reform post 2013. Among a plethora of policy papers there is a fresh one by Eulalia Rubio ‘EUBudget Review: Addressing the Thorny Issues’, published 7 March 2008. The CAP 2013 project is preparing proposals. A presentation including links to preparatory work is offered in English on the following web page (although the French page has been updated later):
http://www.notre-europe.eu/en/axes/competition-cooperation-solidarity/projects/projet/proposals-for-the-cap-post-2013/
Second, I would like to mention three high quality blogs shedding light on the CAP:
CAP Health Check, with Jack Thurston as coordinator and various contributors, describes itself as “Towards better European farming, food and rural policies”:
http://caphealthcheck.eu/
Wyn Grant comments on the Common Agricultural Policy blog:
http://commonagpolicy.blogspot.com/
Jack Thurston manages Farmsubsidy.org dedicated to transparency, with the motto ‘Who gets what from the Common Agricultural Policy’:
http://www.farmsubsidy.org/
Economics, weight in the EU budget, consumer interests, taxpayers, the (developing) world outside the European Union’s customs and quota borders – Clausewitz would have found the CAP too important to be left in the care of vested interests.
Ralf Grahn
This post offers a look at the regulatory and budgetary ‘tools’ of the CAP in the light of the Lisbon Treaty, and it gives a few hints on further reading.
***
In the Treaty of Lisbon (ToL) the intergovernmental conference (IGC 2007) does not specifically mention Article 34 of the Treaty establishing the European Community (TEC) among the amendments (see OJ 17.12.2007 C 306/53).
The Treaty is renamed the Treaty on the Functioning of the European Union (TFEU). We indicate the new framework, look out for horizontal amendments (replacing ‘Community’ by ‘Union’) and take the coming renumbering into account concerning the provision and its referrals (Tables of equivalences, OJ 17.12.2007 C 306/207). This is how the provision should look according to the Lisbon Treaty, based on the latest consolidated version of the TEC (OJ 29.12.2006 C 321 E/54-55):
Part Three Policies and internal actions of the Union
Title II (renumbered Title III) Agriculture and fisheries
Article 34 TFEU (ToL), renumbered Article 40 TFEU
1. In order to attain the objectives set out in Article 33 [ToL, renumbered Article 39 TFEU] a common organisation of agricultural markets shall be established.
This organisation shall take one of the following forms, depending on the product concerned:
(a) common rules on competition;
(b) compulsory coordination of the various national market organisations;
(c) a European market organisation.
2. The common organisation established in accordance with paragraph 1 may include all measures required to attain the objectives set out in Article 33 [ToL, renumbered Article 39 TFEU], in particular regulation of prices, aids for the production and marketing of the various products, storage and carryover arrangements and common machinery for stabilising imports or exports.
The common organisation shall be limited to pursuit of the objectives set out in Article 33 [ToL, renumbered Article 39 TFEU] and shall exclude any discrimination between producers or consumers within the Union.
Any common price policy shall be based on common criteria and uniform methods of calculation.
3. In order to enable the common organisation referred to in paragraph 1 to attain its objectives, one or more agricultural guidance and guarantee funds may be set up.
***
The European Convention numbered the provision Article III-124 of the draft Treaty establishing a Constitution for Europe. The word ‘Union’ was introduced to take the place of ‘Community’ and the Article referred to was numbered differently, but otherwise not a word was changed (OJ 18.7.2003 C 169/51-52).
The IGC 2004 took over the provision as Article III-228 of the Treaty establishing a Constitution for Europe without changing the wording (OJ 16.12.2004 C 319/100-101).
***
The ‘toolbox’ offered by the provision on common market organisations allows deep cuts in the normal principles of market economy. Here is the description given by the Europa Glossary:
“The common market organisations (CMOs) represent the first pillar of the common agricultural policy (CAP). They are the fundamental market regulation tool governing the production of and trade in agricultural products in all the Member States of the European Union by:
eliminating obstacles to intra-Community trade in agricultural products;
maintaining a common customs barrier with respect to third countries.
Since the reform of the CAP in 2003, most CMOs have been subject to the new system of a single farm payment and decoupling. The Member States which joined the Union on 1 May 2004 participate directly in the new system. Changes have also been made to crisis management arrangements and environmental classification of farms.” See:
http://europa.eu/scadplus/glossary/common_agricultural_markets_en.htm
The Commission’s Scadplus web pages with summaries of legislation offer the basics on ‘Common organisation of the agricultural markets: introduction’, although the page was last updated 27 September 2004. See:
http://europa.eu/scadplus/leg/en/lvb/l11047.htm
A starting point for more up to date information, including latest news, is found on the Commission’s web pages ‘Agriculture and Rural development’:
http://ec.europa.eu/agriculture/index_en.htm
Without outsiders’ views the common agricultural policy (CAP) would be left to government and farming interest insiders. First, a reminder of the sources mentioned in yesterday’s article:
Those who want to understand the present common agricultural policy and its future can turn to the UK House of Lords European Union Committee’s report ‘The Future of the Common Agricultural Policy’, with Volume I: Report (HL Paper 54-I) and Volume II: Evidence (HL Paper 54-II) (7th Report of Session 2007-08, published 6 March 2008):
http://www.publications.parliament.uk/pa/ld200708/ldselect/ldeucom/54/54.pdf
France is known for its addiction to the CAP. The French think tank Notre Europe runs projects which aim at budget reform and CAP reform post 2013. Among a plethora of policy papers there is a fresh one by Eulalia Rubio ‘EUBudget Review: Addressing the Thorny Issues’, published 7 March 2008. The CAP 2013 project is preparing proposals. A presentation including links to preparatory work is offered in English on the following web page (although the French page has been updated later):
http://www.notre-europe.eu/en/axes/competition-cooperation-solidarity/projects/projet/proposals-for-the-cap-post-2013/
Second, I would like to mention three high quality blogs shedding light on the CAP:
CAP Health Check, with Jack Thurston as coordinator and various contributors, describes itself as “Towards better European farming, food and rural policies”:
http://caphealthcheck.eu/
Wyn Grant comments on the Common Agricultural Policy blog:
http://commonagpolicy.blogspot.com/
Jack Thurston manages Farmsubsidy.org dedicated to transparency, with the motto ‘Who gets what from the Common Agricultural Policy’:
http://www.farmsubsidy.org/
Economics, weight in the EU budget, consumer interests, taxpayers, the (developing) world outside the European Union’s customs and quota borders – Clausewitz would have found the CAP too important to be left in the care of vested interests.
Ralf Grahn
Tuesday, 25 March 2008
Complete French Consolidated Lisbon Treaty
Every readable version of the EU’s Treaty of Lisbon gives cause for joy to students, teachers, practitioners and active citizens. Since my latest, 22 March 2008 post ‘EU: Consolidated Lisbon Treaty’ I have received publishers’ information about two developments (but I have not yet seen the books myself):
Swedish
It has been announced that the promised pocket version of the Treaty of Lisbon has been published by SNS Förlag.
French
I relay the following information to you, dear readers, about a complete consolidated version of the Lisbon Treaty in French:
Traité sur l’Union européenne / Traité sur le fonctionnement de l’Union européenne
Christine Kaddous / Fabrice Picod
Recueil de textes, paru le 18 février 2008 Staempfli SA (Berne), Bruylant (Bruxelles), L.G.D.J. (Paris) 342 pages, CHF 59.-, 43 euros, ISBN 978-3-7272-9144-9
L’objectif de cet ouvrage est de procurer aux lecteurs un accès aisé aux nouveaux traités sur l’Union européenne et sur le fonctionnement de l’Union européenne, tels qu’ils résultent des modifications apportées par le traité de Lisbonne du 13 décembre 2007.
Il regroupe, dans une version consolidée :
le traité sur l’Union européenne,
le traité sur le fonctionnement de l’Union européenne,
deux tables de concordance,
les protocoles et déclarations,
la Charte des droits fondamentaux de l’Union européenne et les explications y relatives.
Une introduction présente les principaux apports du traité de Lisbonne.
Christine Kaddous, Professeur à l’Université de Genève, Chaire Jean Monnet, dirige le Centre d’études juridiques européennes
Fabrice Picod, Professeur à l’Université Panthéon- Assas (Paris II)
***
I am grateful if you want to share your information on consolidations as well as official documents and secondary literature in different languages on the amending Lisbon Treaty.
Ralf Grahn
Swedish
It has been announced that the promised pocket version of the Treaty of Lisbon has been published by SNS Förlag.
French
I relay the following information to you, dear readers, about a complete consolidated version of the Lisbon Treaty in French:
Traité sur l’Union européenne / Traité sur le fonctionnement de l’Union européenne
Christine Kaddous / Fabrice Picod
Recueil de textes, paru le 18 février 2008 Staempfli SA (Berne), Bruylant (Bruxelles), L.G.D.J. (Paris) 342 pages, CHF 59.-, 43 euros, ISBN 978-3-7272-9144-9
L’objectif de cet ouvrage est de procurer aux lecteurs un accès aisé aux nouveaux traités sur l’Union européenne et sur le fonctionnement de l’Union européenne, tels qu’ils résultent des modifications apportées par le traité de Lisbonne du 13 décembre 2007.
Il regroupe, dans une version consolidée :
le traité sur l’Union européenne,
le traité sur le fonctionnement de l’Union européenne,
deux tables de concordance,
les protocoles et déclarations,
la Charte des droits fondamentaux de l’Union européenne et les explications y relatives.
Une introduction présente les principaux apports du traité de Lisbonne.
Christine Kaddous, Professeur à l’Université de Genève, Chaire Jean Monnet, dirige le Centre d’études juridiques européennes
Fabrice Picod, Professeur à l’Université Panthéon- Assas (Paris II)
***
I am grateful if you want to share your information on consolidations as well as official documents and secondary literature in different languages on the amending Lisbon Treaty.
Ralf Grahn
EU TFEU CAP: Common agricultural policy objectives
The main objectives of common agricultural policy (CAP) of the European Economic Community (EEC) were fixed in the Treaty of Rome in 1957, and the Treaty of Lisbon fifty years later would actually ultimately restore the original Article number, without changing the slightest detail of the contents.
In spite of this immovable background the CAP is a hotly contested policy area and historically the greatest user of Community funds.
The CAP “Helath Check” in 2008, the Budget Review in 2008/09 and the next financial perspective from 2014 are all played out within the framework of the basic treaty provisions.
***
The intergovernmental conference (IGC 2007) had nothing specific to say after Article 32 of the Treaty establishing the European Community (TEC), point 47, until Article 36 TEC, point 48 (OJ 17.12.2007 C 306/33).
The Treaty of Lisbon (ToL) changes the name of the treaty, which becomes the Treaty on the Functioning of the European Union (TFEU), Part Three becomes ‘Policies and internal actions of the Union’ and fisheries are added to Title II (renumbered Title III) which consequently becomes ‘Agriculture and fisheries’ (OJ 17.12.2007 C 306/207).
No horizontal amendments seem to apply to Article 33 TEC, which becomes Article 33 in the Treaty of Lisbon version of the TFEU, but destined for later renumbering to become Article 39 TFEU.
Thus, we present the new setting and retrieve the wording of the provision from the latest consolidated version of the treaties (OJ 29.12.2006 C 321 E/54):
Part Three Policies and internal actions of the Union
Title II (renumbered Title III) Agriculture and fisheries
Article 33 TFEU (ToL), renumbered Article 39 TFEU
1. The objectives of the common agricultural policy shall be:
(a) to increase agricultural productivity by promoting technical progress and by ensuring the rational development of agricultural production and the optimum utilisation of the factors of production, in particular labour;
(b) thus to ensure a fair standard of living for the agricultural community, in particular by increasing the individual earnings of persons engaged in agriculture;
(c) to stabilise markets;
(d) to assure the availability of supplies;
(e) to ensure that supplies reach consumers at reasonable prices.
2. In working out the common agricultural policy and the special methods for its application, account shall be taken of:
(a) the particular nature of agricultural activity, which results from the social structure of agriculture and from structural and natural disparities between the various agricultural regions;
(b) the need to effect the appropriate adjustments by degrees;
(c) the fact that in the Member States agriculture constitutes a sector closely linked with the economy as a whole.
***
The European Convention did not change a comma of corresponding provision of the draft Treaty establishing a Constitution for Europe, Article III-123 (OJ 18.7.2003 C 169/51).
The IGC 2004’s Article III-227 of the Treaty establishing a Constitution for Europe observed the same degree of orthodoxy.
More than that, strict observance is highlighted through the fact that, word for word, the renumbered Article 39 TFEU would be the same as Article 39 of the original Treaty establishing the European Economic Community (Treaty of Rome, 1957).
***
Those who want to understand the present common agricultural policy and its future can turn to the UK House of Lords European Union Committee’s report ‘The Future of the Common Agricultural Policy’, with Volume I: Report (HL Paper 54-I) and Volume II: Evidence (HL Paper 54-II) (7th Report of Session 2007-08, published 6 March 2008):
http://www.publications.parliament.uk/pa/ld200708/ldselect/ldeucom/54/54.pdf
The French think tank Notre Europe runs projects which aim at budget reform and CAP reform post 2013. Among a plethora of policy papers there is a fresh one by Eulalia Rubio ‘EUBudget Review: Addressing the Thorny Issues’, published 7 March 2008. The CAP 2013 project is preparing proposals. A presentation including links to preparatory work is offered in English on the following web page (although the French page has been updated later):
http://www.notre-europe.eu/en/axes/competition-cooperation-solidarity/projects/projet/proposals-for-the-cap-post-2013/
An official tour of CAP legislation and the budget can start from the Commission’s SCADPlus web page Agriculture: General framework:
http://europa.eu/scadplus/leg/en/s04018.htm
Ralf Grahn
In spite of this immovable background the CAP is a hotly contested policy area and historically the greatest user of Community funds.
The CAP “Helath Check” in 2008, the Budget Review in 2008/09 and the next financial perspective from 2014 are all played out within the framework of the basic treaty provisions.
***
The intergovernmental conference (IGC 2007) had nothing specific to say after Article 32 of the Treaty establishing the European Community (TEC), point 47, until Article 36 TEC, point 48 (OJ 17.12.2007 C 306/33).
The Treaty of Lisbon (ToL) changes the name of the treaty, which becomes the Treaty on the Functioning of the European Union (TFEU), Part Three becomes ‘Policies and internal actions of the Union’ and fisheries are added to Title II (renumbered Title III) which consequently becomes ‘Agriculture and fisheries’ (OJ 17.12.2007 C 306/207).
No horizontal amendments seem to apply to Article 33 TEC, which becomes Article 33 in the Treaty of Lisbon version of the TFEU, but destined for later renumbering to become Article 39 TFEU.
Thus, we present the new setting and retrieve the wording of the provision from the latest consolidated version of the treaties (OJ 29.12.2006 C 321 E/54):
Part Three Policies and internal actions of the Union
Title II (renumbered Title III) Agriculture and fisheries
Article 33 TFEU (ToL), renumbered Article 39 TFEU
1. The objectives of the common agricultural policy shall be:
(a) to increase agricultural productivity by promoting technical progress and by ensuring the rational development of agricultural production and the optimum utilisation of the factors of production, in particular labour;
(b) thus to ensure a fair standard of living for the agricultural community, in particular by increasing the individual earnings of persons engaged in agriculture;
(c) to stabilise markets;
(d) to assure the availability of supplies;
(e) to ensure that supplies reach consumers at reasonable prices.
2. In working out the common agricultural policy and the special methods for its application, account shall be taken of:
(a) the particular nature of agricultural activity, which results from the social structure of agriculture and from structural and natural disparities between the various agricultural regions;
(b) the need to effect the appropriate adjustments by degrees;
(c) the fact that in the Member States agriculture constitutes a sector closely linked with the economy as a whole.
***
The European Convention did not change a comma of corresponding provision of the draft Treaty establishing a Constitution for Europe, Article III-123 (OJ 18.7.2003 C 169/51).
The IGC 2004’s Article III-227 of the Treaty establishing a Constitution for Europe observed the same degree of orthodoxy.
More than that, strict observance is highlighted through the fact that, word for word, the renumbered Article 39 TFEU would be the same as Article 39 of the original Treaty establishing the European Economic Community (Treaty of Rome, 1957).
***
Those who want to understand the present common agricultural policy and its future can turn to the UK House of Lords European Union Committee’s report ‘The Future of the Common Agricultural Policy’, with Volume I: Report (HL Paper 54-I) and Volume II: Evidence (HL Paper 54-II) (7th Report of Session 2007-08, published 6 March 2008):
http://www.publications.parliament.uk/pa/ld200708/ldselect/ldeucom/54/54.pdf
The French think tank Notre Europe runs projects which aim at budget reform and CAP reform post 2013. Among a plethora of policy papers there is a fresh one by Eulalia Rubio ‘EUBudget Review: Addressing the Thorny Issues’, published 7 March 2008. The CAP 2013 project is preparing proposals. A presentation including links to preparatory work is offered in English on the following web page (although the French page has been updated later):
http://www.notre-europe.eu/en/axes/competition-cooperation-solidarity/projects/projet/proposals-for-the-cap-post-2013/
An official tour of CAP legislation and the budget can start from the Commission’s SCADPlus web page Agriculture: General framework:
http://europa.eu/scadplus/leg/en/s04018.htm
Ralf Grahn
Monday, 24 March 2008
EU TFEU: Common agriculture and fisheries policy
The common agricultural policy (CAP), including the fisheries policy, of the European Community (European Union) is one of the most conspicuous features of European integration.
Naturally, each farmer and fisherman is a stakeholder, but so is every consumer and taxpayer in the European Union. In short, every citizen of the EU should know the legal and political basics of the CAP.
Here we begin by looking at the fundamental provisions as they stand when the Lisbon Treaty enters into force.
***
Were the European leaders worried enough by the flagging spirits of the so called Eurosceptic anti-EU crowd to devise this supporting action to keep them going and to stimulate recruitment?
Not only was the ‘constitutional concept’ abandoned, but all pretence at plain English (as well as Bulgarian, Czech, Danish, Dutch, Estonian, Finnish, French, German, Greek, Hungarian, Irish, Italian, Latvian, Lithuanian, Maltese, Polish, Portuguese, Romanian, Slovak, Slovenian, Spanish and Swedish).
Anyway, arriving at a new Title we find the intergovernmental conference (IGC 2007) true to its form. Although very little actual change takes place, the master communicators of the IGC 2007 fully used the opportunity to make the reading experience of the amending Treaty of Lisbon (ToL) as unrewarding as possible, requiring the concurrent perusal of the existing treaties to make any sense.
Here is what the Lisbon Treaty has to say at the beginning of the new Title of the Treaty establishing the European Community (TEC), becoming the Treaty on the Functioning of the European Union (TFEU) (OJ 17.12.2007 C 306/53):
AGRICULTURE AND FISHERIES
46) In the heading of Title II, the words ‘AND FISHERIES’ shall be added.
47) Article 32 shall be amended as follows:
(a) in paragraph 1, the following new first subparagraph shall be inserted:
‘1. The Union shall define and implement a common agriculture and fisheries policy.’, the current text of paragraph 1 shall become the second subparagraph.
In the second subparagraph, the word ‘, fisheries’ shall be inserted after ‘agriculture’ in the first sentence and the following sentence shall be added as the last sentence of the subparagraph: ‘References to the common agricultural policy or to agriculture, and the use of the term “agricultural”, shall be understood as also referring to fisheries, having regard to the specific characteristics of this sector.’
(b) in paragraph 2, the words ‘and functioning’ shall be inserted after the word ‘establishment’.
(c) in paragraph 3, the words ‘to this Treaty’ shall be deleted.
***
We have been sent off to fetch the current Article 32 TEC (found in the latest consolidated version of the treaties, OJ 29.12.2006 C 321/53-54):
TITLE II
AGRICULTURE
Article 32 TEC
1. The common market shall extend to agriculture and trade in agricultural products. ‘Agricultural products’ means the products of the soil, of stockfarming and of fisheries and products of first-stage processing directly related to these products.
2. Save as otherwise provided in Articles 33 to 38, the rules laid down for the establishment of the common market shall apply to agricultural products.
3. The products subject to the provisions of Articles 33 to 38 are listed in Annex I to this Treaty.
4. The operation and development of the common market for agricultural products must be accompanied by the establishment of a common agricultural policy.
***
The materials are now at the plant. Assembly can start. This is what appears at the end of the assembly line after joining the numbering of the Tables of equivalences with the express amendments and horizontal amendment 2(g), thrice replacing the ‘common market’ by ‘internal market’:
PART THREE – POLICIES AND INTERNAL ACTIONS OF THE UNION
Title II (renumbered Title III) Agriculture and fisheries
Article 32 TFEU (ToL), renumbered Article 38 TFEU
1. The Union shall define and implement a common agriculture and fisheries policy.
The internal market shall extend to agriculture, fisheries and trade in agricultural products. ‘Agricultural products’ means the products of the soil, of stockfarming and of fisheries and products of first-stage processing directly related to these products. References to the common agricultural policy or to agriculture, and the use of the term “agricultural”, shall be understood as also referring to fisheries, having regard to the specific characteristics of this sector.
2. Save as otherwise provided in Articles 33 to 38 [ToL, new numbering Articles 39 to 44 TFEU], the rules laid down for the establishment and functioning of the internal market shall apply to agricultural products.
3. The products subject to the provisions of Articles 33 to 38 [ToL, new numbering 39 to 44 TFEU] are listed in Annex I.
4. The operation and development of the internal market for agricultural products must be accompanied by the establishment of a common agricultural policy.
***
For easy comparison with the prior phases of the treaty reform process, here are the relevant provisions of the draft Treaty establishing a Constitution for Europe, as proposed by the European Convention. Section 4 Agriculture and fisheries would have been placed away from the Titles on free movement, in Chapter III Policies in other specific areas (after Chapter I Internal market and Chapter II Economic and monetary policy) (OJ 18.7.2003 C 169/51):
SECTION 4
Agriculture and fisheries
Article III-121 Draft Constitution
The Union shall define and implement a common agriculture and fisheries policy.
‘Agricultural products’ means the products of the soil, of stockfarming and of fisheries and products of first-stage processing directly related to these products. References to the common agricultural policy or to agriculture, and the use of the term ‘agricultural’, shall be understood as also referring to fisheries, having regard to the specific characteristics of this sector.
Article III-122 Draft Constitution
1. The internal market shall extend to agriculture and trade in agricultural products.
2. Save as otherwise provided in Articles III-123 to III-128, the rules laid down for the establishment of the internal market shall apply to agricultural products.
3. The products listed in Annex I (*) shall be subject to Articles III-123 to III-128.
4. The operation and development of the internal market for agricultural products must be accompanied by the establishment of a common agricultural policy.
[* The asterisk indicated that Annex I had to be drawn up.]
***
The IGC 2004 took over the draft text in the Treaty establishing a Constitution for Europe (OJ 16.12.2004 C 310/99-100):
SECTION 4
AGRICULTURE AND FISHERIES
Article III-225 Constitution
The Union shall define and implement a common agriculture and fisheries policy.
‘Agricultural products’ means the products of the soil, of stockfarming and of fisheries and products of first-stage processing directly related to these products. References to the common agricultural policy or to agriculture, and the use of the term ‘agricultural’, shall be understood as also referring to fisheries, having regard to the specific characteristics of this sector.
Article III-226 Constitution
1. The internal market shall extend to agriculture and trade in agricultural products.
2. Save as otherwise provided in articles III-227 to III-232, the rules laid down for the establishment and functioning of the internal market shall apply to agricultural products.
3. The products listed in Annex I shall be subject to Articles III-227 to III-232.
4. The operation and development of the internal market for agricultural products must be accompanied by a common agricultural policy.
***
The Constitutional Treaty took over the wording of the draft Constitution with minimal adjustments. The referrals to Articles were adjusted technically, and in the second paragraph ‘and functioning’ was added to the internal market, while ‘the establishment of’ a common agricultural policy was deleted in paragraph 4 of Article III-226.
The Lisbon Treaty merges the Articles of the Constitution and shifts the sentences without altering the contents.
***
Here are the contents of Annex I – the List referred to in Article 32 TEC as presented in the latest consolidated version (OJ 29.12.2006 C 321 E/183-185, where it is presented as an easier to read table). The numbers of chapters and positions refer to the Brussels nomenclature and the following text describes the products:
ANNEX I
LIST
referred to in Article 32 of the Treaty
Chapter 1 Live animals
Chapter 2 Meat and edible meat offal
Chapter 3 Fish, crustaceans and molluscs
Chapter 4 Dairy produce; birds' eggs; natural honey
Chapter 5
05.04 Guts, bladders and stomachs of animals (other than fish), whole and pieces thereof
05.15 Animal products not elsewhere specified or included; dead animals of Chapter 1 or Chapter 3, unfit for human consumption
Chapter 6 Live trees and other plants; bulbs, roots and the like; cut flowers and ornamental foliage
Chapter 7 Edible vegetables and certain roots and tubers
Chapter 8 Edible fruit and nuts; peel of melons or citrus fruit
Chapter 9 Coffee, tea and spices, excluding maté (heading No 0903)
Chapter 10 Cereals
Chapter 11 Products of the milling industry; malt and starches; gluten; inulin
Chapter 12 Oil seeds and oleaginous fruit; miscellaneous grains, seeds and fruit; industrial and medical plants; straw and fodder
Chapter 13
ex 13.03 Pectin
Chapter 15
15.01 Lard and other rendered pig fat; rendered poultry fat
15.02 Unrendered fats of bovine cattle, sheep or goats; tallow (including ‘premier jus’) produced from those fats
15.03 Lard stearin, oleostearin and tallow stearin; lard oil, oleo-oil and tallow oil, not emulsified or mixed or prepared in any way
15.04 Fats and oil, of fish and marine mammals, whether or not refined
15.07 Fixed vegetable oils, fluid or solid, crude, refined or purified
15.12 Animal or vegetable fats and oils, hydrogenated, whether or not refined, but not further prepared
15.13 Margarine, imitation lard and other prepared edible fats
15.17 Residues resulting from the treatment of fatty substances or animal or vegetable waxes
Chapter 16 Preparations of meat, of fish, of crustaceans or molluscs
Chapter 17
17.01 Beet sugar and cane sugar, solid
17.02 Other sugars; sugar syrups; artificial honey (whether or not mixed with natural honey); caramel
17.03 Molasses, whether or not decolourised
17.05 Flavoured or coloured sugars, syrups and molasses, but not including fruit juices containing added sugar in any proportion
Chapter 18
18.01 Cocoa beans, whole or broken, raw or roasted
18.02 Cocoa shells, husks, skins and waste
Chapter 20 Preparations of vegetables, fruit or other parts of plants
Chapter 22
22.04 Grape must, in fermentation or with fermentation arrested otherwise than by the addition of alcohol
22.05 Wine of fresh grapes; grape must with fermentation arrested by the addition of alcohol
22.07 Other fermented beverages (for example, cider, perry and mead)
ex 22.08
ex 22.09
Ethyl alcohol or neutral spirits, whether or not denatured, of any strength, obtained from agricultural products listed in Annex I to the Treaty, excluding liqueurs and other spirituous beverages and compound alcoholic preparations (known as ‘concentrated extracts’) for the manufacture of beverages
ex 22.10 Vinegar and substitutes for vinegar
Chapter 23 Residues and waste from the food industries; prepared animal fodder
Chapter 24
24.01 Unmanufactured tobacco, tobacco refuse
Chapter 45
45.01 Natural cork, unworked, crushed, granulated or ground; waste cork
Chapter 54
54.01 Flax, raw or processed but not spun; flax tow and waste (including pulled or garnetted rags)
Chapter 57
57.01 True hemp (Cannabis sativa), raw or processed but not spun; tow and waste of
true hemp (including pulled or garnetted rags or ropes)
***
Adding fisheries to the Title heading and the text of the Article takes account of existing practice.
Aware of the highly regulated and protectionist nature of the common agriculture and fisheries policy as well as the massive support mechanisms, the reader may be astonished to find out that in principle the rules for the establishment and functioning of the internal market apply to agricultural products.
The concept of first-stage processing is important, as is Annex I listing the products.
Ralf Grahn
Naturally, each farmer and fisherman is a stakeholder, but so is every consumer and taxpayer in the European Union. In short, every citizen of the EU should know the legal and political basics of the CAP.
Here we begin by looking at the fundamental provisions as they stand when the Lisbon Treaty enters into force.
***
Were the European leaders worried enough by the flagging spirits of the so called Eurosceptic anti-EU crowd to devise this supporting action to keep them going and to stimulate recruitment?
Not only was the ‘constitutional concept’ abandoned, but all pretence at plain English (as well as Bulgarian, Czech, Danish, Dutch, Estonian, Finnish, French, German, Greek, Hungarian, Irish, Italian, Latvian, Lithuanian, Maltese, Polish, Portuguese, Romanian, Slovak, Slovenian, Spanish and Swedish).
Anyway, arriving at a new Title we find the intergovernmental conference (IGC 2007) true to its form. Although very little actual change takes place, the master communicators of the IGC 2007 fully used the opportunity to make the reading experience of the amending Treaty of Lisbon (ToL) as unrewarding as possible, requiring the concurrent perusal of the existing treaties to make any sense.
Here is what the Lisbon Treaty has to say at the beginning of the new Title of the Treaty establishing the European Community (TEC), becoming the Treaty on the Functioning of the European Union (TFEU) (OJ 17.12.2007 C 306/53):
AGRICULTURE AND FISHERIES
46) In the heading of Title II, the words ‘AND FISHERIES’ shall be added.
47) Article 32 shall be amended as follows:
(a) in paragraph 1, the following new first subparagraph shall be inserted:
‘1. The Union shall define and implement a common agriculture and fisheries policy.’, the current text of paragraph 1 shall become the second subparagraph.
In the second subparagraph, the word ‘, fisheries’ shall be inserted after ‘agriculture’ in the first sentence and the following sentence shall be added as the last sentence of the subparagraph: ‘References to the common agricultural policy or to agriculture, and the use of the term “agricultural”, shall be understood as also referring to fisheries, having regard to the specific characteristics of this sector.’
(b) in paragraph 2, the words ‘and functioning’ shall be inserted after the word ‘establishment’.
(c) in paragraph 3, the words ‘to this Treaty’ shall be deleted.
***
We have been sent off to fetch the current Article 32 TEC (found in the latest consolidated version of the treaties, OJ 29.12.2006 C 321/53-54):
TITLE II
AGRICULTURE
Article 32 TEC
1. The common market shall extend to agriculture and trade in agricultural products. ‘Agricultural products’ means the products of the soil, of stockfarming and of fisheries and products of first-stage processing directly related to these products.
2. Save as otherwise provided in Articles 33 to 38, the rules laid down for the establishment of the common market shall apply to agricultural products.
3. The products subject to the provisions of Articles 33 to 38 are listed in Annex I to this Treaty.
4. The operation and development of the common market for agricultural products must be accompanied by the establishment of a common agricultural policy.
***
The materials are now at the plant. Assembly can start. This is what appears at the end of the assembly line after joining the numbering of the Tables of equivalences with the express amendments and horizontal amendment 2(g), thrice replacing the ‘common market’ by ‘internal market’:
PART THREE – POLICIES AND INTERNAL ACTIONS OF THE UNION
Title II (renumbered Title III) Agriculture and fisheries
Article 32 TFEU (ToL), renumbered Article 38 TFEU
1. The Union shall define and implement a common agriculture and fisheries policy.
The internal market shall extend to agriculture, fisheries and trade in agricultural products. ‘Agricultural products’ means the products of the soil, of stockfarming and of fisheries and products of first-stage processing directly related to these products. References to the common agricultural policy or to agriculture, and the use of the term “agricultural”, shall be understood as also referring to fisheries, having regard to the specific characteristics of this sector.
2. Save as otherwise provided in Articles 33 to 38 [ToL, new numbering Articles 39 to 44 TFEU], the rules laid down for the establishment and functioning of the internal market shall apply to agricultural products.
3. The products subject to the provisions of Articles 33 to 38 [ToL, new numbering 39 to 44 TFEU] are listed in Annex I.
4. The operation and development of the internal market for agricultural products must be accompanied by the establishment of a common agricultural policy.
***
For easy comparison with the prior phases of the treaty reform process, here are the relevant provisions of the draft Treaty establishing a Constitution for Europe, as proposed by the European Convention. Section 4 Agriculture and fisheries would have been placed away from the Titles on free movement, in Chapter III Policies in other specific areas (after Chapter I Internal market and Chapter II Economic and monetary policy) (OJ 18.7.2003 C 169/51):
SECTION 4
Agriculture and fisheries
Article III-121 Draft Constitution
The Union shall define and implement a common agriculture and fisheries policy.
‘Agricultural products’ means the products of the soil, of stockfarming and of fisheries and products of first-stage processing directly related to these products. References to the common agricultural policy or to agriculture, and the use of the term ‘agricultural’, shall be understood as also referring to fisheries, having regard to the specific characteristics of this sector.
Article III-122 Draft Constitution
1. The internal market shall extend to agriculture and trade in agricultural products.
2. Save as otherwise provided in Articles III-123 to III-128, the rules laid down for the establishment of the internal market shall apply to agricultural products.
3. The products listed in Annex I (*) shall be subject to Articles III-123 to III-128.
4. The operation and development of the internal market for agricultural products must be accompanied by the establishment of a common agricultural policy.
[* The asterisk indicated that Annex I had to be drawn up.]
***
The IGC 2004 took over the draft text in the Treaty establishing a Constitution for Europe (OJ 16.12.2004 C 310/99-100):
SECTION 4
AGRICULTURE AND FISHERIES
Article III-225 Constitution
The Union shall define and implement a common agriculture and fisheries policy.
‘Agricultural products’ means the products of the soil, of stockfarming and of fisheries and products of first-stage processing directly related to these products. References to the common agricultural policy or to agriculture, and the use of the term ‘agricultural’, shall be understood as also referring to fisheries, having regard to the specific characteristics of this sector.
Article III-226 Constitution
1. The internal market shall extend to agriculture and trade in agricultural products.
2. Save as otherwise provided in articles III-227 to III-232, the rules laid down for the establishment and functioning of the internal market shall apply to agricultural products.
3. The products listed in Annex I shall be subject to Articles III-227 to III-232.
4. The operation and development of the internal market for agricultural products must be accompanied by a common agricultural policy.
***
The Constitutional Treaty took over the wording of the draft Constitution with minimal adjustments. The referrals to Articles were adjusted technically, and in the second paragraph ‘and functioning’ was added to the internal market, while ‘the establishment of’ a common agricultural policy was deleted in paragraph 4 of Article III-226.
The Lisbon Treaty merges the Articles of the Constitution and shifts the sentences without altering the contents.
***
Here are the contents of Annex I – the List referred to in Article 32 TEC as presented in the latest consolidated version (OJ 29.12.2006 C 321 E/183-185, where it is presented as an easier to read table). The numbers of chapters and positions refer to the Brussels nomenclature and the following text describes the products:
ANNEX I
LIST
referred to in Article 32 of the Treaty
Chapter 1 Live animals
Chapter 2 Meat and edible meat offal
Chapter 3 Fish, crustaceans and molluscs
Chapter 4 Dairy produce; birds' eggs; natural honey
Chapter 5
05.04 Guts, bladders and stomachs of animals (other than fish), whole and pieces thereof
05.15 Animal products not elsewhere specified or included; dead animals of Chapter 1 or Chapter 3, unfit for human consumption
Chapter 6 Live trees and other plants; bulbs, roots and the like; cut flowers and ornamental foliage
Chapter 7 Edible vegetables and certain roots and tubers
Chapter 8 Edible fruit and nuts; peel of melons or citrus fruit
Chapter 9 Coffee, tea and spices, excluding maté (heading No 0903)
Chapter 10 Cereals
Chapter 11 Products of the milling industry; malt and starches; gluten; inulin
Chapter 12 Oil seeds and oleaginous fruit; miscellaneous grains, seeds and fruit; industrial and medical plants; straw and fodder
Chapter 13
ex 13.03 Pectin
Chapter 15
15.01 Lard and other rendered pig fat; rendered poultry fat
15.02 Unrendered fats of bovine cattle, sheep or goats; tallow (including ‘premier jus’) produced from those fats
15.03 Lard stearin, oleostearin and tallow stearin; lard oil, oleo-oil and tallow oil, not emulsified or mixed or prepared in any way
15.04 Fats and oil, of fish and marine mammals, whether or not refined
15.07 Fixed vegetable oils, fluid or solid, crude, refined or purified
15.12 Animal or vegetable fats and oils, hydrogenated, whether or not refined, but not further prepared
15.13 Margarine, imitation lard and other prepared edible fats
15.17 Residues resulting from the treatment of fatty substances or animal or vegetable waxes
Chapter 16 Preparations of meat, of fish, of crustaceans or molluscs
Chapter 17
17.01 Beet sugar and cane sugar, solid
17.02 Other sugars; sugar syrups; artificial honey (whether or not mixed with natural honey); caramel
17.03 Molasses, whether or not decolourised
17.05 Flavoured or coloured sugars, syrups and molasses, but not including fruit juices containing added sugar in any proportion
Chapter 18
18.01 Cocoa beans, whole or broken, raw or roasted
18.02 Cocoa shells, husks, skins and waste
Chapter 20 Preparations of vegetables, fruit or other parts of plants
Chapter 22
22.04 Grape must, in fermentation or with fermentation arrested otherwise than by the addition of alcohol
22.05 Wine of fresh grapes; grape must with fermentation arrested by the addition of alcohol
22.07 Other fermented beverages (for example, cider, perry and mead)
ex 22.08
ex 22.09
Ethyl alcohol or neutral spirits, whether or not denatured, of any strength, obtained from agricultural products listed in Annex I to the Treaty, excluding liqueurs and other spirituous beverages and compound alcoholic preparations (known as ‘concentrated extracts’) for the manufacture of beverages
ex 22.10 Vinegar and substitutes for vinegar
Chapter 23 Residues and waste from the food industries; prepared animal fodder
Chapter 24
24.01 Unmanufactured tobacco, tobacco refuse
Chapter 45
45.01 Natural cork, unworked, crushed, granulated or ground; waste cork
Chapter 54
54.01 Flax, raw or processed but not spun; flax tow and waste (including pulled or garnetted rags)
Chapter 57
57.01 True hemp (Cannabis sativa), raw or processed but not spun; tow and waste of
true hemp (including pulled or garnetted rags or ropes)
***
Adding fisheries to the Title heading and the text of the Article takes account of existing practice.
Aware of the highly regulated and protectionist nature of the common agriculture and fisheries policy as well as the massive support mechanisms, the reader may be astonished to find out that in principle the rules for the establishment and functioning of the internal market apply to agricultural products.
The concept of first-stage processing is important, as is Annex I listing the products.
Ralf Grahn
Sunday, 23 March 2008
EU TFEU: Commercial state monopolies
’Politics makes strange bedfellows’, but not more than the free movement of goods and state monopolies of a commercial character within the European Community (European Union).
***
Article 31 of the Treaty establishing the European Community (TEC) first becomes Article 31 of the Treaty on the Functioning of the European Union (TFEU) according to the original Treaty of Lisbon (ToL) numbering. When the amending treaty is consolidated, the provision is renumbered Article 37.
The wording for the unaltered provision is found in the latest consolidated version of the current treaties, Official Journal, OJ 29.12.2006 C 321 E/53, to which we add the Lisbon Treaty context (Tables of equivalence, OJ 17.12.2007 C 306/207):
Part Three Policies and internal actions of the Union
Title Ia (renumbered Title II) Free movement of goods
Chapter 2 (renumbered Chapter 3) Prohibition of quantitative restrictions between Member States
Article 31 TFEU (ToL), renumbered Article 37 TFEU
1. Member States shall adjust any State monopolies of a commercial character so as to ensure that no discrimination regarding the conditions under which goods are procured and marketed exists between nationals of Member States.
The provisions of this Article shall apply to any body through which a Member State, in law or in fact, either directly or indirectly supervises, determines or appreciably influences imports or exports between Member States. These provisions shall likewise apply to monopolies delegated by the State to others.
2. Member States shall refrain from introducing any new measure which is contrary to the principles laid down in paragraph 1 or which restricts the scope of the articles dealing with the prohibition of customs duties and quantitative restrictions between Member States.
3. If a State monopoly of a commercial character has rules which are designed to make it easier to dispose of agricultural products or obtain for them the best return, steps should be taken in applying the rules contained in this Article to ensure equivalent safeguards for the employment and standard of living of the producers concerned.
***
Errata
I apologise for my mistake concerning the Title given as ‘Title I The internal market’ in the posts on Articles 27a to 30 according to the Lisbon Treaty numbering (renumbered Articles 33 to 36). The correct version is ‘Title Ia (renumbered Title II) Free movement of goods’.
I have served myself a generous helping of Easter humble pie.
***
The European Convention took over the contents of the provision, with nearly identical wording in Article III-44 of the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/34).
The same applies to Article III-155 of the Treaty establishing a Constitution for Europe.
***
State monopolies of a commercial character and the principle of free movement of goods are rather awkward companions, but the monopolies are not prohibited by Article 31 TFEU (ToL; renumbered Article 37 TFEU), only to be adjusted to ensure the abolition of discrimination.
The provision applies to goods and between member states (internal market), not regarding third countries.
Existing commercial monopolies have to be adjusted, and the introduction of new measures is forbidden (standstill clause).
***
A few examples:
National monopolies on the sale of alcoholic beverages in Sweden and Finland have been adjusted, but the sale of medicinal preparations in Sweden did not ensure non-discrimination.
In a preliminary ruling the Court of Justice found (case C-438/02) that the way in which Apoteket is organised and operates, and more particularly its system of selecting medicinal preparations, is liable to place trade in medicinal preparations from other Member States at a disadvantage as compared with trade in Swedish medicinal preparations. Thus, that State monopoly is not arranged in such a way as to exclude any discrimination against medicinal preparations from other Member States. It thus infringes Article 31(1) EC.
Ralf Grahn
***
Article 31 of the Treaty establishing the European Community (TEC) first becomes Article 31 of the Treaty on the Functioning of the European Union (TFEU) according to the original Treaty of Lisbon (ToL) numbering. When the amending treaty is consolidated, the provision is renumbered Article 37.
The wording for the unaltered provision is found in the latest consolidated version of the current treaties, Official Journal, OJ 29.12.2006 C 321 E/53, to which we add the Lisbon Treaty context (Tables of equivalence, OJ 17.12.2007 C 306/207):
Part Three Policies and internal actions of the Union
Title Ia (renumbered Title II) Free movement of goods
Chapter 2 (renumbered Chapter 3) Prohibition of quantitative restrictions between Member States
Article 31 TFEU (ToL), renumbered Article 37 TFEU
1. Member States shall adjust any State monopolies of a commercial character so as to ensure that no discrimination regarding the conditions under which goods are procured and marketed exists between nationals of Member States.
The provisions of this Article shall apply to any body through which a Member State, in law or in fact, either directly or indirectly supervises, determines or appreciably influences imports or exports between Member States. These provisions shall likewise apply to monopolies delegated by the State to others.
2. Member States shall refrain from introducing any new measure which is contrary to the principles laid down in paragraph 1 or which restricts the scope of the articles dealing with the prohibition of customs duties and quantitative restrictions between Member States.
3. If a State monopoly of a commercial character has rules which are designed to make it easier to dispose of agricultural products or obtain for them the best return, steps should be taken in applying the rules contained in this Article to ensure equivalent safeguards for the employment and standard of living of the producers concerned.
***
Errata
I apologise for my mistake concerning the Title given as ‘Title I The internal market’ in the posts on Articles 27a to 30 according to the Lisbon Treaty numbering (renumbered Articles 33 to 36). The correct version is ‘Title Ia (renumbered Title II) Free movement of goods’.
I have served myself a generous helping of Easter humble pie.
***
The European Convention took over the contents of the provision, with nearly identical wording in Article III-44 of the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/34).
The same applies to Article III-155 of the Treaty establishing a Constitution for Europe.
***
State monopolies of a commercial character and the principle of free movement of goods are rather awkward companions, but the monopolies are not prohibited by Article 31 TFEU (ToL; renumbered Article 37 TFEU), only to be adjusted to ensure the abolition of discrimination.
The provision applies to goods and between member states (internal market), not regarding third countries.
Existing commercial monopolies have to be adjusted, and the introduction of new measures is forbidden (standstill clause).
***
A few examples:
National monopolies on the sale of alcoholic beverages in Sweden and Finland have been adjusted, but the sale of medicinal preparations in Sweden did not ensure non-discrimination.
In a preliminary ruling the Court of Justice found (case C-438/02) that the way in which Apoteket is organised and operates, and more particularly its system of selecting medicinal preparations, is liable to place trade in medicinal preparations from other Member States at a disadvantage as compared with trade in Swedish medicinal preparations. Thus, that State monopoly is not arranged in such a way as to exclude any discrimination against medicinal preparations from other Member States. It thus infringes Article 31(1) EC.
Ralf Grahn
Saturday, 22 March 2008
EU TFEU: Legitimate restrictions on imports and exports
The free movement of goods is a fundamental principle of the internal market of the European Community (European Union). There are, however, other societal values, which call for attention, and they can vary between the member states.
A balance has to be sought between these different values, leaving scope for national sensitivities, but preventing discriminatory use.
***
Since the intergovernmental conference (IGC 2007) had nothing in particular to say about the contents of Article 30 of the Treaty establishing the European Community (TEC), we start by looking up the provision in the latest consolidation of the treaties OJ 29.12.2006 C 321 E/53:
Article 30 TEC
The provisions of Articles 28 and 29 shall not preclude prohibitions or restrictions on imports, exports or goods in transit justified on grounds of public morality, public policy or public security; the protection of health and life of humans, animals or plants; the protection of national treasures possessing artistic, historic or archaeological value; or the protection of industrial and commercial property. Such prohibitions or restrictions shall not, however, constitute a means of arbitrary discrimination or a disguised restriction on trade between Member States.
***
In the Treaty of Lisbon (ToL) Article 30 TEC becomes Article 30 of the Treaty on the Functioning of the European Union (TFEU). In later consolidated versions the provision and the two Articles referred to are renumbered according to the Tables of equivalences referred to in the IGC 2007 Article 5 of the Treaty of Lisbon (OJ 17.12.2007 C 306/207). We indicate the Article numbers and the location of the provision:
Part Three Policies and internal actions of the Union
Title I The internal market
Chapter 2 (renumbered Chapter 3) Prohibition of quantitative restrictions between Member States
Article 30 TFEU (ToL), new numbering Article 36 TFEU
The provisions of Articles 28 [TFEU (ToL), new number Article 34 TFEU] and 29 [TFEU (ToL), renumbered Article 35 TFEU] shall not preclude prohibitions or restrictions on imports, exports or goods in transit justified on grounds of public morality, public policy or public security; the protection of health and life of humans, animals or plants; the protection of national treasures possessing artistic, historic or archaeological value; or the protection of industrial and commercial property. Such prohibitions or restrictions shall not, however, constitute a means of arbitrary discrimination or a disguised restriction on trade between Member States.
***
I routinely check my rendering against Klemens H. Fischer: Der Vertrag von Lissabon, the IIEA: Treaty on the Functioning of the European Union (Consolidated version) and the Statewatch Analysis by Steve Peers. If I find an anomaly, I check again.
***
Because the draft Treaty establishing a Constitution for Europe had only one Article prohibiting quantitative restrictions on both imports and exports, the referral was different, but otherwise the European Convention took over the text of Article 30 TEC word for word in its Article III-43 (OJ 18.7.2003 C 169/34).
The same goes for Article III-154 of the Treaty establishing a Constitution for Europe (OJ 16.12.2004 C 310/66).
***
The grounds for exceptions (derogations) from the free movement of goods may be easier to read if presented in the form of a list:
· Public morality
· Public policy
· Public security
· Protection of health
· Protection of national treasures
· Protection of industrial and commercial property
These are only possible grounds for prohibitions or restrictions on the free movement of goods by the member states.
In order to override the commercial interest of free flow of goods, the exceptions have to be justified on objective grounds. They have to be necessary to achieve the policy aim in question, and they have to be proportional, namely no more disruptive than needed to attain their objective.
The Court of Justice (‘of the European Union’, as it is to be known) is the final arbiter of when restrictive measures are legitimate and when they constitute a means of arbitrary discrimination or a disguised restriction on trade between Member States. Derogations or exceptions are interpreted narrowly.
One example of a national measure on public morality grounds that would fail is a prohibition of imports of pornographic products, if domestic goods of the same kind were allowed.
Ralf Grahn
A balance has to be sought between these different values, leaving scope for national sensitivities, but preventing discriminatory use.
***
Since the intergovernmental conference (IGC 2007) had nothing in particular to say about the contents of Article 30 of the Treaty establishing the European Community (TEC), we start by looking up the provision in the latest consolidation of the treaties OJ 29.12.2006 C 321 E/53:
Article 30 TEC
The provisions of Articles 28 and 29 shall not preclude prohibitions or restrictions on imports, exports or goods in transit justified on grounds of public morality, public policy or public security; the protection of health and life of humans, animals or plants; the protection of national treasures possessing artistic, historic or archaeological value; or the protection of industrial and commercial property. Such prohibitions or restrictions shall not, however, constitute a means of arbitrary discrimination or a disguised restriction on trade between Member States.
***
In the Treaty of Lisbon (ToL) Article 30 TEC becomes Article 30 of the Treaty on the Functioning of the European Union (TFEU). In later consolidated versions the provision and the two Articles referred to are renumbered according to the Tables of equivalences referred to in the IGC 2007 Article 5 of the Treaty of Lisbon (OJ 17.12.2007 C 306/207). We indicate the Article numbers and the location of the provision:
Part Three Policies and internal actions of the Union
Title I The internal market
Chapter 2 (renumbered Chapter 3) Prohibition of quantitative restrictions between Member States
Article 30 TFEU (ToL), new numbering Article 36 TFEU
The provisions of Articles 28 [TFEU (ToL), new number Article 34 TFEU] and 29 [TFEU (ToL), renumbered Article 35 TFEU] shall not preclude prohibitions or restrictions on imports, exports or goods in transit justified on grounds of public morality, public policy or public security; the protection of health and life of humans, animals or plants; the protection of national treasures possessing artistic, historic or archaeological value; or the protection of industrial and commercial property. Such prohibitions or restrictions shall not, however, constitute a means of arbitrary discrimination or a disguised restriction on trade between Member States.
***
I routinely check my rendering against Klemens H. Fischer: Der Vertrag von Lissabon, the IIEA: Treaty on the Functioning of the European Union (Consolidated version) and the Statewatch Analysis by Steve Peers. If I find an anomaly, I check again.
***
Because the draft Treaty establishing a Constitution for Europe had only one Article prohibiting quantitative restrictions on both imports and exports, the referral was different, but otherwise the European Convention took over the text of Article 30 TEC word for word in its Article III-43 (OJ 18.7.2003 C 169/34).
The same goes for Article III-154 of the Treaty establishing a Constitution for Europe (OJ 16.12.2004 C 310/66).
***
The grounds for exceptions (derogations) from the free movement of goods may be easier to read if presented in the form of a list:
· Public morality
· Public policy
· Public security
· Protection of health
· Protection of national treasures
· Protection of industrial and commercial property
These are only possible grounds for prohibitions or restrictions on the free movement of goods by the member states.
In order to override the commercial interest of free flow of goods, the exceptions have to be justified on objective grounds. They have to be necessary to achieve the policy aim in question, and they have to be proportional, namely no more disruptive than needed to attain their objective.
The Court of Justice (‘of the European Union’, as it is to be known) is the final arbiter of when restrictive measures are legitimate and when they constitute a means of arbitrary discrimination or a disguised restriction on trade between Member States. Derogations or exceptions are interpreted narrowly.
One example of a national measure on public morality grounds that would fail is a prohibition of imports of pornographic products, if domestic goods of the same kind were allowed.
Ralf Grahn
EU: Consolidated Lisbon Treaty
Where do I find a consolidated, readable version of the EU’s Treaty of Lisbon?
How is the accuracy of the Article by Article Lisbon Treaty consolidation appearing on this blog checked?
I answer the questions in reverse order:
After arriving at what I think would be the consolidated wording of an Article, I usually compare it with four existing consolidations to see if I got it right (or if they did). They are the following versions: the IIEA, the FCO, Statewatch and Klemens H. Fischer.
The practical and sane quite naturally access these consolidations or other (language) versions directly. My latest compilation of references to existing consolidated versions of the Lisbon Treaty in different languages is found in the post ‘EU UE: Lisbon Lissabon Lisboa Lisbonne Lisbona Lisboa’ of 5 March 2008:
http://grahnlaw.blogspot.com/2008/03/eu-ue-lisbon-lissabon-lisboa-lisbonne.html
I hope that the Council is aware of the fact that there is a continuing daily trickle of visitors to this blog, who are looking for a consolidated version of the Treaty of Lisbon, but the search engines seem to steer them towards earlier versions of the list.
If the Council cared for transparency and sound priorities, it would surely long ago have published consolidated versions of the Lisbon Treaty in every official language of the European Union, because it is arguably the most important document to emanate from the EU since 2004.
Because the Council has referred to practices concerning earlier treaty reforms, it is meet to point out that both the web and conceptions about public communications have evolved greatly since 2001, when the Treaty of Nice was signed, and that the draft Constitution was published immediately and that the Constitution was published about a month and a half after signing, both in the Official Journal in all the treaty languages.
Why revert to worst practices?
Ralf Grahn
How is the accuracy of the Article by Article Lisbon Treaty consolidation appearing on this blog checked?
I answer the questions in reverse order:
After arriving at what I think would be the consolidated wording of an Article, I usually compare it with four existing consolidations to see if I got it right (or if they did). They are the following versions: the IIEA, the FCO, Statewatch and Klemens H. Fischer.
The practical and sane quite naturally access these consolidations or other (language) versions directly. My latest compilation of references to existing consolidated versions of the Lisbon Treaty in different languages is found in the post ‘EU UE: Lisbon Lissabon Lisboa Lisbonne Lisbona Lisboa’ of 5 March 2008:
http://grahnlaw.blogspot.com/2008/03/eu-ue-lisbon-lissabon-lisboa-lisbonne.html
I hope that the Council is aware of the fact that there is a continuing daily trickle of visitors to this blog, who are looking for a consolidated version of the Treaty of Lisbon, but the search engines seem to steer them towards earlier versions of the list.
If the Council cared for transparency and sound priorities, it would surely long ago have published consolidated versions of the Lisbon Treaty in every official language of the European Union, because it is arguably the most important document to emanate from the EU since 2004.
Because the Council has referred to practices concerning earlier treaty reforms, it is meet to point out that both the web and conceptions about public communications have evolved greatly since 2001, when the Treaty of Nice was signed, and that the draft Constitution was published immediately and that the Constitution was published about a month and a half after signing, both in the Official Journal in all the treaty languages.
Why revert to worst practices?
Ralf Grahn
Friday, 21 March 2008
Two from the same country?
The WhoDoICall blog discusses an entry by Richard Corbett on the possible choice of two Rasmussens from Denmark for EU top posts:
http://www.whodoicall.eu/blog/
It is difficult to imagine that two out of three top jobs would land with citizens of the same member state, if the European Council does not merge the two presidencies, as proposed by the ‘Who do I call?’ initiative.
This is what Declaration number 6 on Article 9 B(5) and (6), Article 9 D(6) and (7) and
Article 9 E of the Treaty on European Union says:
In choosing the persons called upon to hold the offices of President of the European Council, President of the Commission and High Representative of the Union for Foreign Affairs and Security Policy, due account is to be taken of the need to respect the geographical and demographic diversity of the Union and its Member States.
***
To date, the European leaders have spoken publicly only of geographical and demographic diversity, leaving out other factors such as gender and democratic legitimacy.
In spite of the popularity of name dropping, I would want to see more discussion on the fundamentals, as proposed again in my post ‘Heavyweight president for European Council?’ two days ago.
Let us hope that the debate turns a bit more serious, and that European leaders show that their thinking can evolve.
Ralf Grahn
http://www.whodoicall.eu/blog/
It is difficult to imagine that two out of three top jobs would land with citizens of the same member state, if the European Council does not merge the two presidencies, as proposed by the ‘Who do I call?’ initiative.
This is what Declaration number 6 on Article 9 B(5) and (6), Article 9 D(6) and (7) and
Article 9 E of the Treaty on European Union says:
In choosing the persons called upon to hold the offices of President of the European Council, President of the Commission and High Representative of the Union for Foreign Affairs and Security Policy, due account is to be taken of the need to respect the geographical and demographic diversity of the Union and its Member States.
***
To date, the European leaders have spoken publicly only of geographical and demographic diversity, leaving out other factors such as gender and democratic legitimacy.
In spite of the popularity of name dropping, I would want to see more discussion on the fundamentals, as proposed again in my post ‘Heavyweight president for European Council?’ two days ago.
Let us hope that the debate turns a bit more serious, and that European leaders show that their thinking can evolve.
Ralf Grahn
EU TFEU: Quantitative export restrictions
The provisions of the European Community (in the future the European Union) banning quantitative restrictions on imports and exports in the single market, and all measures having equivalent effect, look like mirror images (except for two commas).
Still, there is a difference, because barriers against imports inevitably raise the question of protectionist intentions, whereas member states generally look favourably on exports.
***
In the Treaty of Lisbon (ToL) the intergovernmental conference (IGC 2007) observes silence between point 45 on Customs cooperation and point 46 on Agriculture and fisheries (OJ 17.12.2007 C 306/52-53). The annexed Tables of equivalences however give us an indication that there is a whole chapter to look at, brief but of fundamental importance to the internal market (OJ 17.12.2007 C 306/207).
We notice that Article 29 of the Treaty establishing the European Community (TEC) first becomes Article 29 of the Treaty on the Functioning of the European Union (TFEU) in the Lisbon Treaty version (ToL), later to be renumbered Article 35 TFEU in the coming consolidated versions.
We set the provision into its future context (from the Tables of equivalences) and present its contents (taken from the latest consolidated version of the current treaties, OJ 29.12.2006 C 321 E/53):
Part Three Policies and internal actions of the Union
Title I The internal market
Chapter 2 (renumbered Chapter 3) Prohibition of quantitative restrictions between Member States
Article 29 TFEU (ToL), renumbered Article 35 TFEU
Quantitative restrictions on exports, and all measures having equivalent effect, shall be prohibited between Member States.
***
The European Convention proposed the following Article III-42 of the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/34):
Subsection 3
Prohibition of quantitative restrictions
Article III-42 Draft Constitution
Quantitative restrictions on imports and exports and all measures having equivalent effect shall be prohibited between Member States.
***
The IGC 2004 took over the draft text ‘verbatim’ as you see in Article III-153 of the Treaty establishing a Constitution for Europe (OJ 16.12.2004 C 310/65):
Subsection 3
Prohibition of quantitative restrictions
Article III-153 Constitution
Quantitative restrictions on imports and exports and all measures having equivalent effect shall be prohibited between Member States.
***
If we take a look at the following Articles of the current TEC and the proposed TFEU, we are able to see that they have separate provisions concerning quantitative restrictions on imports and on exports, whereas the draft Constitution and the Constitution shortened the text by merging the two.
***
Restrictions on import as well as on exports can hinder the free flow of goods in the internal market. Article 29 TFEU (ToL; 35 TFEU) concerns trade between member states, and it is clear enough to be directly applicable, potentially striking down national provisions or practices with contrary effects. Restrictions in relation to third countries are dealt with under external trade provisions.
Examples of prohibited export restrictions include express export quotas, export bans and systematic controls on export goods.
Whereas restrictions on imports raise the presumption of protectionist motives, domestic practices concerning potential exports are less harshly judged. General national measures putting national potential exporters at a disadvantage (reverse discrimination) are tolerated to a certain extent. Examples include less favourable working hours in bakeries and restrictive opening hours for shops serving a cross-border clientele.
Grounds for justifiable domestic measures are found in the following Article 30 TEC and TFEU (ToL), renumbered Article 36 TFEU.
Article 296(1)(b) TEC and TFEU (ToL), renumbered Article 346 TFEU, contains a specific authorisation, on security grounds, of restrictions pertaining to the trade in arms, munitions and war material (but not to products not intended for specifically military purposes).
Ralf Grahn
Still, there is a difference, because barriers against imports inevitably raise the question of protectionist intentions, whereas member states generally look favourably on exports.
***
In the Treaty of Lisbon (ToL) the intergovernmental conference (IGC 2007) observes silence between point 45 on Customs cooperation and point 46 on Agriculture and fisheries (OJ 17.12.2007 C 306/52-53). The annexed Tables of equivalences however give us an indication that there is a whole chapter to look at, brief but of fundamental importance to the internal market (OJ 17.12.2007 C 306/207).
We notice that Article 29 of the Treaty establishing the European Community (TEC) first becomes Article 29 of the Treaty on the Functioning of the European Union (TFEU) in the Lisbon Treaty version (ToL), later to be renumbered Article 35 TFEU in the coming consolidated versions.
We set the provision into its future context (from the Tables of equivalences) and present its contents (taken from the latest consolidated version of the current treaties, OJ 29.12.2006 C 321 E/53):
Part Three Policies and internal actions of the Union
Title I The internal market
Chapter 2 (renumbered Chapter 3) Prohibition of quantitative restrictions between Member States
Article 29 TFEU (ToL), renumbered Article 35 TFEU
Quantitative restrictions on exports, and all measures having equivalent effect, shall be prohibited between Member States.
***
The European Convention proposed the following Article III-42 of the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/34):
Subsection 3
Prohibition of quantitative restrictions
Article III-42 Draft Constitution
Quantitative restrictions on imports and exports and all measures having equivalent effect shall be prohibited between Member States.
***
The IGC 2004 took over the draft text ‘verbatim’ as you see in Article III-153 of the Treaty establishing a Constitution for Europe (OJ 16.12.2004 C 310/65):
Subsection 3
Prohibition of quantitative restrictions
Article III-153 Constitution
Quantitative restrictions on imports and exports and all measures having equivalent effect shall be prohibited between Member States.
***
If we take a look at the following Articles of the current TEC and the proposed TFEU, we are able to see that they have separate provisions concerning quantitative restrictions on imports and on exports, whereas the draft Constitution and the Constitution shortened the text by merging the two.
***
Restrictions on import as well as on exports can hinder the free flow of goods in the internal market. Article 29 TFEU (ToL; 35 TFEU) concerns trade between member states, and it is clear enough to be directly applicable, potentially striking down national provisions or practices with contrary effects. Restrictions in relation to third countries are dealt with under external trade provisions.
Examples of prohibited export restrictions include express export quotas, export bans and systematic controls on export goods.
Whereas restrictions on imports raise the presumption of protectionist motives, domestic practices concerning potential exports are less harshly judged. General national measures putting national potential exporters at a disadvantage (reverse discrimination) are tolerated to a certain extent. Examples include less favourable working hours in bakeries and restrictive opening hours for shops serving a cross-border clientele.
Grounds for justifiable domestic measures are found in the following Article 30 TEC and TFEU (ToL), renumbered Article 36 TFEU.
Article 296(1)(b) TEC and TFEU (ToL), renumbered Article 346 TFEU, contains a specific authorisation, on security grounds, of restrictions pertaining to the trade in arms, munitions and war material (but not to products not intended for specifically military purposes).
Ralf Grahn
Thursday, 20 March 2008
EU TFEU: Quantitative import restrictions
Besides security, the main objective of European integration is prosperity for the citizens of the European Union.
The prohibition of quantitative restrictions between member states on imports is one of the fundamental principles of the internal market.
The drafters of the earlier treaties have been smart enough to include ‘all measures having equivalent effect’ and the Treaty of Lisbon to leave the single market provisions undisturbed.
***
In the Treaty of Lisbon (ToL) the intergovernmental conference (IGC 2007) is silent between point 45 on Customs cooperation and point 46 on Agriculture and fisheries (OJ 17.12.2007 C 306/52-53). The annexed Tables of equivalences however give us an indication that there is a whole chapter to look at, brief but of fundamental importance to the internal market (OJ 17.12.2007 C 306/207).
We notice that Article 28 of the Treaty establishing the European Community (TEC) first becomes Article 28 of the Treaty on the Functioning of the European Union (TFEU) in the Lisbon Treaty version (ToL), later to be renumbered Article 34 TFEU in the coming consolidated version.
We set the provision into its future context (from the Tables of equivalences) and present its contents (taken from the latest consolidated version of the current treaties, OJ 29.12.2006 C 321 E/52):
Part Three Policies and internal actions of the Union
Title I The internal market
Chapter 2 (renumbered Chapter 3) Prohibition of quantitative restrictions between Member States
Article 28 TFEU (ToL), renumbered Article 34 TFEU
Quantitative restrictions on imports and all measures having equivalent effect shall be prohibited between Member States.
***
The European Convention proposed the following Article III-42 of the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/34):
Subsection 3
Prohibition of quantitative restrictions
Article III-42 Draft Constitution
Quantitative restrictions on imports and exports and all measures having equivalent effect shall be prohibited between Member States.
***
The IGC 2004 took over the draft text ‘verbatim’ as you see in Article III-153 of the Treaty establishing a Constitution for Europe (OJ 16.12.2004 C 310/65):
Subsection 3
Prohibition of quantitative restrictions
Article III-153 Constitution
Quantitative restrictions on imports and exports and all measures having equivalent effect shall be prohibited between Member States.
***
If we take a look at the following Articles of the current TEC and the proposed TFEU, we are able to see that they have separate provisions concerning quantitative restrictions on imports and on exports, whereas the draft Constitution and the Constitution shortened the text by merging the two.
A citizen of the European Union can only dream of the brevity of the Constitution of the United States of America, but shorter, sharper and clearer treaty texts would in general be an improvement.
In this case, however, the provisions under discussion are among the shortest, and despite their brevity they carry a lot of punch. In addition, they are much sinned against. Preserving the distinction between two different Articles makes it easier to track case law back in time and to deal with different measures where in depth study is called for.
It is therefore preferable to let the coin preserve its two sides, considering the fundamental importance of these distinct provisions for the working of the internal market.
***
Clear quantitative restrictions in international trade are usually called quotas, in this case import quotas.
Import quotas are protective or protectionist measures, since they leave part of the demand to be filled by domestic suppliers (leading to a privileged position for them and conversely to higher prices and less choice for enterprises looking for components or raw materials as well as for consumers).
Creating national artificial bottlenecks on imports contradicts the basic ideas behind the internal market.
***
‘What’s in a name? that which we call a rose
By any other name would smell as sweet.’
Or, as nasty, Shakespeare might have said, had he been into trade instead of young love and protectionism instead of flowers.
One of the main contributions of the drafters of the treaties is the appropriate and repeated use of the phrase ‘and all measures having equivalent effect’. Member states’ restrictive legislative acts or administrative practices do not escape (in the long run) despite creative labelling. Their effects count, not the label.
***
Since the basic tenets of the internal market are left unchanged, they are barely noticeable if you read the research papers or the commentaries on the Lisbon Treaty. You just have to go to text books or case law, if you want to study the single market. (My intention is to look at the treaties as a whole, as they would stand when the Treaty of Lisbon has entered into force. At the present time, earlier posts cover most of the TEU and the beginning of the TFEU.)
***
Some of the treaty provisions need clarifying (secondary) legislation to become effective. Others, like Article 28 (new 34) of the Lisbon Treaty TFEU are clear enough to have direct effect, automatic application. Only by having priority over national provisions does European Community law offer redress to EU firms and citizens.
***
There are permissible prohibitions and restrictions on imports (and exports and goods in transit), but these will be dealt with another day, after we have looked at quantitative restrictions on exports.
Ralf Grahn
The prohibition of quantitative restrictions between member states on imports is one of the fundamental principles of the internal market.
The drafters of the earlier treaties have been smart enough to include ‘all measures having equivalent effect’ and the Treaty of Lisbon to leave the single market provisions undisturbed.
***
In the Treaty of Lisbon (ToL) the intergovernmental conference (IGC 2007) is silent between point 45 on Customs cooperation and point 46 on Agriculture and fisheries (OJ 17.12.2007 C 306/52-53). The annexed Tables of equivalences however give us an indication that there is a whole chapter to look at, brief but of fundamental importance to the internal market (OJ 17.12.2007 C 306/207).
We notice that Article 28 of the Treaty establishing the European Community (TEC) first becomes Article 28 of the Treaty on the Functioning of the European Union (TFEU) in the Lisbon Treaty version (ToL), later to be renumbered Article 34 TFEU in the coming consolidated version.
We set the provision into its future context (from the Tables of equivalences) and present its contents (taken from the latest consolidated version of the current treaties, OJ 29.12.2006 C 321 E/52):
Part Three Policies and internal actions of the Union
Title I The internal market
Chapter 2 (renumbered Chapter 3) Prohibition of quantitative restrictions between Member States
Article 28 TFEU (ToL), renumbered Article 34 TFEU
Quantitative restrictions on imports and all measures having equivalent effect shall be prohibited between Member States.
***
The European Convention proposed the following Article III-42 of the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/34):
Subsection 3
Prohibition of quantitative restrictions
Article III-42 Draft Constitution
Quantitative restrictions on imports and exports and all measures having equivalent effect shall be prohibited between Member States.
***
The IGC 2004 took over the draft text ‘verbatim’ as you see in Article III-153 of the Treaty establishing a Constitution for Europe (OJ 16.12.2004 C 310/65):
Subsection 3
Prohibition of quantitative restrictions
Article III-153 Constitution
Quantitative restrictions on imports and exports and all measures having equivalent effect shall be prohibited between Member States.
***
If we take a look at the following Articles of the current TEC and the proposed TFEU, we are able to see that they have separate provisions concerning quantitative restrictions on imports and on exports, whereas the draft Constitution and the Constitution shortened the text by merging the two.
A citizen of the European Union can only dream of the brevity of the Constitution of the United States of America, but shorter, sharper and clearer treaty texts would in general be an improvement.
In this case, however, the provisions under discussion are among the shortest, and despite their brevity they carry a lot of punch. In addition, they are much sinned against. Preserving the distinction between two different Articles makes it easier to track case law back in time and to deal with different measures where in depth study is called for.
It is therefore preferable to let the coin preserve its two sides, considering the fundamental importance of these distinct provisions for the working of the internal market.
***
Clear quantitative restrictions in international trade are usually called quotas, in this case import quotas.
Import quotas are protective or protectionist measures, since they leave part of the demand to be filled by domestic suppliers (leading to a privileged position for them and conversely to higher prices and less choice for enterprises looking for components or raw materials as well as for consumers).
Creating national artificial bottlenecks on imports contradicts the basic ideas behind the internal market.
***
‘What’s in a name? that which we call a rose
By any other name would smell as sweet.’
Or, as nasty, Shakespeare might have said, had he been into trade instead of young love and protectionism instead of flowers.
One of the main contributions of the drafters of the treaties is the appropriate and repeated use of the phrase ‘and all measures having equivalent effect’. Member states’ restrictive legislative acts or administrative practices do not escape (in the long run) despite creative labelling. Their effects count, not the label.
***
Since the basic tenets of the internal market are left unchanged, they are barely noticeable if you read the research papers or the commentaries on the Lisbon Treaty. You just have to go to text books or case law, if you want to study the single market. (My intention is to look at the treaties as a whole, as they would stand when the Treaty of Lisbon has entered into force. At the present time, earlier posts cover most of the TEU and the beginning of the TFEU.)
***
Some of the treaty provisions need clarifying (secondary) legislation to become effective. Others, like Article 28 (new 34) of the Lisbon Treaty TFEU are clear enough to have direct effect, automatic application. Only by having priority over national provisions does European Community law offer redress to EU firms and citizens.
***
There are permissible prohibitions and restrictions on imports (and exports and goods in transit), but these will be dealt with another day, after we have looked at quantitative restrictions on exports.
Ralf Grahn
Wednesday, 19 March 2008
Heavyweight president for the European Council?
People love to talk about people, and read about them, too. So human interest stories sell newspapers, and circulation numbers sell advertising space, and the economy keeps humming, which is all very well.
But some matters deserve more thoughtful discussion and decision making than that. Let us take the coming president of the Commission, the president of the European Council and the high representative cum vice-president as a case in point.
Two aspects require special attention if Europe wants to bridge the current chasm between leaders dealing among themselves and citizens awarded the role of mere spectators:
1) EU as the world’s schoolmaster in democracy needs to start dismantling its own variety of ‘managed democracy’ in favour of real, representative democracy. A long term commitment to democratic reform, covering the whole of EU activities, is needed from the European leaders.
2) Whenever the existing treaties (including the Lisbon Treaty undergoing ratification) allow, these possibilities should be used consistently to improve EU level democracy, in the vein of the ‘Who do I call?’ initiative.
***
Election procedures
Returning to the one old, the one new and the third spiced up top job, it would, in my view, be more important to discuss the election procedures before speculating about the persons.
The all too probable worst case scenario is that an electoral college of 27 heads of state or government deal behind closed doors and that the citizens are only informed about the result, after the fact.
(Even the conclave of cardinals is larger, though the procedures look pretty equal at the present stage of evolution. On the other hand, the Catholic Church makes no claims to democratic accountability.)
The European Council has the powers, if the will is there, to arrange open nominations, public debate and transparent decision making for the top jobs.
Combining the posts of Commission and European Council president would enhance the democratic legitimacy of the new office holder.
‘Objective’ criteria
The second issue is to look at the qualifications needed. Different viewpoints are not only necessary, they are highly desirable.
My own heavily weighted main criteria would look at the candidate’s career and his/her country’s track record with the following in mind:
* Ratification of the Lisbon Treaty and conduct during the reform process since Maastricht
* The Eurozone
* The Schengen area
* The Charter of Fundamental Rights
* Commitment to develop a real CFSP and CSDP based on dual EU and NATO membership
* Commitment to a future democratic European Union
Personal qualifications
Then come the personal qualities of the candidates, when they have been publicly fielded and we get to know who they are and what they stand for.
***
The coming office holders are going to have clout only if the European Union gets its act together. One way to give the EU’s top representatives backing when dealing with world leaders is to give them the moral authority democratic legitimacy bestows on holders of political office. Surely, that is more important then the postal country code.
Therefore, both short term and long term improvements are called for.
Ralf Grahn
But some matters deserve more thoughtful discussion and decision making than that. Let us take the coming president of the Commission, the president of the European Council and the high representative cum vice-president as a case in point.
Two aspects require special attention if Europe wants to bridge the current chasm between leaders dealing among themselves and citizens awarded the role of mere spectators:
1) EU as the world’s schoolmaster in democracy needs to start dismantling its own variety of ‘managed democracy’ in favour of real, representative democracy. A long term commitment to democratic reform, covering the whole of EU activities, is needed from the European leaders.
2) Whenever the existing treaties (including the Lisbon Treaty undergoing ratification) allow, these possibilities should be used consistently to improve EU level democracy, in the vein of the ‘Who do I call?’ initiative.
***
Election procedures
Returning to the one old, the one new and the third spiced up top job, it would, in my view, be more important to discuss the election procedures before speculating about the persons.
The all too probable worst case scenario is that an electoral college of 27 heads of state or government deal behind closed doors and that the citizens are only informed about the result, after the fact.
(Even the conclave of cardinals is larger, though the procedures look pretty equal at the present stage of evolution. On the other hand, the Catholic Church makes no claims to democratic accountability.)
The European Council has the powers, if the will is there, to arrange open nominations, public debate and transparent decision making for the top jobs.
Combining the posts of Commission and European Council president would enhance the democratic legitimacy of the new office holder.
‘Objective’ criteria
The second issue is to look at the qualifications needed. Different viewpoints are not only necessary, they are highly desirable.
My own heavily weighted main criteria would look at the candidate’s career and his/her country’s track record with the following in mind:
* Ratification of the Lisbon Treaty and conduct during the reform process since Maastricht
* The Eurozone
* The Schengen area
* The Charter of Fundamental Rights
* Commitment to develop a real CFSP and CSDP based on dual EU and NATO membership
* Commitment to a future democratic European Union
Personal qualifications
Then come the personal qualities of the candidates, when they have been publicly fielded and we get to know who they are and what they stand for.
***
The coming office holders are going to have clout only if the European Union gets its act together. One way to give the EU’s top representatives backing when dealing with world leaders is to give them the moral authority democratic legitimacy bestows on holders of political office. Surely, that is more important then the postal country code.
Therefore, both short term and long term improvements are called for.
Ralf Grahn
EU TFEU: Customs cooperation
EU customs cooperation plays a key role in the fight against fraud and organised crime. We look at the current provision on customs cooperation and what the Lisbon Treaty brings to these activities within the European Union.
***
The Treaty of Lisbon (ToL) moves the provision on Customs cooperation of the Treaty establishing the European Community (TEC) into the vicinity of the provisions of Chapter 1 The customs union in the Treaty on the Functioning of the European Union (TFEU)(OJ 17.12.2007 C 306/52):
45) A Chapter Ia entitled ‘CUSTOMS COOPERATION’ shall be inserted after Article 27, and an Article 27a shall be inserted with the wording of Article 135, the last sentence of that Article being deleted.
***
The current Article 135 TEC is found in the latest consolidated version of the treaties, OJ 29.12.2006 C 321 E/106:
TITLE X
CUSTOMS COOPERATION
Article 135 TEC
Within the scope of application of this Treaty, the Council, acting in accordance with the procedure referred to in Article 251, shall take measures in order to strengthen customs cooperation between Member States and between the latter and the Commission. These measures shall not concern the application of national criminal law or the national administration of justice.
***
The Lisbon Treaty is like Ikea furniture: It is handy to store and to transport, but some effort is needed before it serves its purpose. We are now ready to start the construction phase. We follow the express instructions, apply the horizontal amendments as needed, in this case 2(b) and 2(c), and take note of the renumbering to take place. The end result should show what was willed by the intergovernmental conference (IGC 2007):
Part Three Policies and internal actions of the Union
Title I The internal market
Chapter 1a Customs cooperation TFEU (ToL) (to be renumbered Chapter 2 TFEU)
Article 27a TFEU (ToL), after renumbering Article 33 TFEU
Within the scope of application of the Treaties, the European Parliament and the Council, acting in accordance with the ordinary legislative procedure, shall take measures in order to strengthen customs cooperation between Member States and between the latter and the Commission.
***
We then look at the intermediate stages of the treaty reform process. First, the European Convention proposed the following Article III-41 of the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/34):
Subsection 2
Customs cooperation
Article III-41 Draft Constitution
Within the scope of application of the Constitution, European laws or framework laws shall establish measures in order to strengthen customs cooperation between Member States and between the latter and the Commission.
***
The IGC was content to replace ‘the latter’ by ‘them’ in the Treaty establishing a Constitution for Europe, where the corresponding provision was Article III-152, under Section 3 Free movement of goods, Subsection 2 Customs cooperation (OJ 16.12.2004 C 310/65).
***
The legislative procedure has undergone some name changes along the way. The present co-decision procedure (officially ‘the procedure referred to in Article 251’), became ‘European laws or framework laws’ in the draft Constitution and the Constitution, but after the constitutional concept was jettisoned the IGC hauled in ‘the ordinary legislative procedure’ of the Lisbon Treaty. Substantially there is no difference.
Materially the draft Constitution entailed one amendment of note. Deleting the sentence ‘These measures shall not concern the application of national criminal law or the national administration of justice’ removes a restriction of the scope of allowed legislation.
Enabling measures concerning national criminal law and administration of criminal justice has the potential to counter for instance product and trademark piracy, drugs and arms trafficking, trafficking in human beings and other cross-border crime more effectively than at present, as well as enforce the financial interests of the EU.
Detailed provisions are found in Title IV (ToL, renumbered V TFEU) Area of freedom, security and justice, especially Chapter 4 Judicial cooperation in criminal matters.
These extended powers should be welcomed by legally operating businesses and EU citizens in general. They are less welcome for shady third country operators and criminal organisations and, perhaps, for member states that possibly will the ends, but not the means of joint crime prevention and enforcement. (Denmark, Ireland and the United Kingdom have secured opt-outs from the area of freedom, security and justice.)
***
The Commission’s pages on Justice and Home Affairs, Freedom, Security and Justice, Customs cooperation, offer a starting point for further reading ‘Customs authorities at the heart of the fight against cross-border crime in the EU’:
http://ec.europa.eu/justice_home/fsj/customs/fsj_customs_intro_en.htm
There are further web pages on the Information system, the Investigation database and on Mutual assistance, but these undated entries seem to be in need of an update (or the willingness of member states to ratify conventions).
The European Parliament offers and introduction to Customs cooperation with more exact references and links (last update 16 December 2005, so still leaves a gap of more than two years) at:
http://www.europarl.europa.eu/comparl/libe/elsj/zoom_in/21_en.htm
The General Report on the Activities of the European Union 2007 (page 167) adds the following titbits to our knowledge about customs cooperation:
“In 2007 work continued within the various institutions on laying down the modernised Community Customs Code (5) and establishing e-customs, which aims to replace all customs procedures with interconnected national computerised procedures.
In the field of international relations, on 11 April the Commission proposed the conclusion of an agreement on customs cooperation and mutual administrative assistance in customs matters between the European Community and the government of Japan.”
In addition to ‘hard law’ measures ‘soft law’ means to improve customs cooperation should be remembered. Yesterday’s article EU TFEU: Customs union aims’ mentioned Decision No 624/2007/EC of the European Parliament and of the Council of 23 May 2007 establishing an action programme for customs in the Community (Customs 2013) (OJ 14.6.2007 L 154/25), which presents how the strategic goals of the European Community are pursued at the operational level of customs administrations through an action programme from the beginning of 2008 until the end of 2013 (in line with the current multiannual financial framework).
The Customs 2013 Programme consists of the following activities, according to Article 1(2):
(a) communication and information-exchange systems;
(b) benchmarking;
(c) seminars and workshops;
(d) project groups and steering groups;
(e) working visits;
(f) training activities;
(g) monitoring actions;
(h) any other activities required for the realisation of the objectives of the programme.
Ralf Grahn
***
The Treaty of Lisbon (ToL) moves the provision on Customs cooperation of the Treaty establishing the European Community (TEC) into the vicinity of the provisions of Chapter 1 The customs union in the Treaty on the Functioning of the European Union (TFEU)(OJ 17.12.2007 C 306/52):
45) A Chapter Ia entitled ‘CUSTOMS COOPERATION’ shall be inserted after Article 27, and an Article 27a shall be inserted with the wording of Article 135, the last sentence of that Article being deleted.
***
The current Article 135 TEC is found in the latest consolidated version of the treaties, OJ 29.12.2006 C 321 E/106:
TITLE X
CUSTOMS COOPERATION
Article 135 TEC
Within the scope of application of this Treaty, the Council, acting in accordance with the procedure referred to in Article 251, shall take measures in order to strengthen customs cooperation between Member States and between the latter and the Commission. These measures shall not concern the application of national criminal law or the national administration of justice.
***
The Lisbon Treaty is like Ikea furniture: It is handy to store and to transport, but some effort is needed before it serves its purpose. We are now ready to start the construction phase. We follow the express instructions, apply the horizontal amendments as needed, in this case 2(b) and 2(c), and take note of the renumbering to take place. The end result should show what was willed by the intergovernmental conference (IGC 2007):
Part Three Policies and internal actions of the Union
Title I The internal market
Chapter 1a Customs cooperation TFEU (ToL) (to be renumbered Chapter 2 TFEU)
Article 27a TFEU (ToL), after renumbering Article 33 TFEU
Within the scope of application of the Treaties, the European Parliament and the Council, acting in accordance with the ordinary legislative procedure, shall take measures in order to strengthen customs cooperation between Member States and between the latter and the Commission.
***
We then look at the intermediate stages of the treaty reform process. First, the European Convention proposed the following Article III-41 of the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/34):
Subsection 2
Customs cooperation
Article III-41 Draft Constitution
Within the scope of application of the Constitution, European laws or framework laws shall establish measures in order to strengthen customs cooperation between Member States and between the latter and the Commission.
***
The IGC was content to replace ‘the latter’ by ‘them’ in the Treaty establishing a Constitution for Europe, where the corresponding provision was Article III-152, under Section 3 Free movement of goods, Subsection 2 Customs cooperation (OJ 16.12.2004 C 310/65).
***
The legislative procedure has undergone some name changes along the way. The present co-decision procedure (officially ‘the procedure referred to in Article 251’), became ‘European laws or framework laws’ in the draft Constitution and the Constitution, but after the constitutional concept was jettisoned the IGC hauled in ‘the ordinary legislative procedure’ of the Lisbon Treaty. Substantially there is no difference.
Materially the draft Constitution entailed one amendment of note. Deleting the sentence ‘These measures shall not concern the application of national criminal law or the national administration of justice’ removes a restriction of the scope of allowed legislation.
Enabling measures concerning national criminal law and administration of criminal justice has the potential to counter for instance product and trademark piracy, drugs and arms trafficking, trafficking in human beings and other cross-border crime more effectively than at present, as well as enforce the financial interests of the EU.
Detailed provisions are found in Title IV (ToL, renumbered V TFEU) Area of freedom, security and justice, especially Chapter 4 Judicial cooperation in criminal matters.
These extended powers should be welcomed by legally operating businesses and EU citizens in general. They are less welcome for shady third country operators and criminal organisations and, perhaps, for member states that possibly will the ends, but not the means of joint crime prevention and enforcement. (Denmark, Ireland and the United Kingdom have secured opt-outs from the area of freedom, security and justice.)
***
The Commission’s pages on Justice and Home Affairs, Freedom, Security and Justice, Customs cooperation, offer a starting point for further reading ‘Customs authorities at the heart of the fight against cross-border crime in the EU’:
http://ec.europa.eu/justice_home/fsj/customs/fsj_customs_intro_en.htm
There are further web pages on the Information system, the Investigation database and on Mutual assistance, but these undated entries seem to be in need of an update (or the willingness of member states to ratify conventions).
The European Parliament offers and introduction to Customs cooperation with more exact references and links (last update 16 December 2005, so still leaves a gap of more than two years) at:
http://www.europarl.europa.eu/comparl/libe/elsj/zoom_in/21_en.htm
The General Report on the Activities of the European Union 2007 (page 167) adds the following titbits to our knowledge about customs cooperation:
“In 2007 work continued within the various institutions on laying down the modernised Community Customs Code (5) and establishing e-customs, which aims to replace all customs procedures with interconnected national computerised procedures.
In the field of international relations, on 11 April the Commission proposed the conclusion of an agreement on customs cooperation and mutual administrative assistance in customs matters between the European Community and the government of Japan.”
In addition to ‘hard law’ measures ‘soft law’ means to improve customs cooperation should be remembered. Yesterday’s article EU TFEU: Customs union aims’ mentioned Decision No 624/2007/EC of the European Parliament and of the Council of 23 May 2007 establishing an action programme for customs in the Community (Customs 2013) (OJ 14.6.2007 L 154/25), which presents how the strategic goals of the European Community are pursued at the operational level of customs administrations through an action programme from the beginning of 2008 until the end of 2013 (in line with the current multiannual financial framework).
The Customs 2013 Programme consists of the following activities, according to Article 1(2):
(a) communication and information-exchange systems;
(b) benchmarking;
(c) seminars and workshops;
(d) project groups and steering groups;
(e) working visits;
(f) training activities;
(g) monitoring actions;
(h) any other activities required for the realisation of the objectives of the programme.
Ralf Grahn
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