Wednesday 1 October 2008

EU: Privileged access prohibited IV

Article 102 of the Treaty establishing the European Community (TEC) underwent no substantial change during the European Convention or the IGC 2004.

We turn to the Treaty of Lisbon.


The current Treaty establishing the European Community (TEC) was to become the Treaty on the Functioning of the European Union (TFEU), and generally the innovations as agreed in the 2004 IGC were to be inserted into the Treaty by way of specific modifications ‘in the usual manner’ (points 17 and 18, pages 6 and 7). As we remember, Article III-182 of the Constitutional Treaty contained a few small changes or ‘innovations’.

I found nothing specific in the mandate of the intergovernmental conference (IGC 2007 Mandate, Council document 11218/07, 26 June 2007) about Article 102 TEC.


In Article 2, point 88 of the original Treaty of Lisbon (ToL) the IGC 2007 agreed on the following concerning Article 102 TEC (OJ 17.12.2007 C 306/71):


88) In Article 102, paragraph 2 shall be deleted and paragraph 1 shall not be numbered;


The TFEU table of equivalences confirms that Article 102 TFEU (ToL) in the original Treaty of Lisbon was to be renumbered Article 124 TFEU in the consolidated version, under the title ‘Economic and monetary policy’ renumbered Title VIII (OJ 17.12.2007 C 306/211─212).


Consolidated Lisbon Treaty

Article 124 of the Treaty on the Functioning of the European Union (TFEU) is found in the consolidated versions of the Treaty on European Union and the Treaty on the Functioning of the European Union, published in the Official Journal of the European Union, OJ 9.5.2008 C 115/99:

Part Three Union policies and internal actions

Title VIII Economic and monetary policy

Chapter 1 Economic policy

Article 124 TFEU
(ex Article 102 TEC)

Any measure, not based on prudential considerations, establishing privileged access by Union institutions, bodies, offices or agencies, central governments, regional, local or other public authorities, other bodies governed by public law, or public undertakings of Member States to financial institutions, shall be prohibited.


We notice, in addition to the express amendments mentioned above, that horizontal amendments have replaced ‘Community institutions or bodies’ by ‘Union institutions, bodies, offices or agencies’.

Compared with Article III-182 of the Constitutional Treaty, Article 124 TFEU only lacks the words ‘or provision’. Otherwise it is identical, but the result was reached in a roundabout manner.

The following instalment is going to take a look at some comments concerning Article 124 TFEU.

Ralf Grahn

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