The Constitution of the United States of America (1787) is a wonder of brevity, made apparent when we read the Treaty on European Union (TEU) and the Treaty establishing the European Community (TEC).
The European Treaties have tried to define the respective powers of the EU / EC and the Member States in minute detail, which has led to unwieldy texts for the poor reader. Still, it is impossible to fix the boundaries exactly, if both the EU and the Member States are going to have powers.
In the United States, the Tenth Amendment states that the “powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people”.
More or less, the same principles apply within the European Community, TEC Article 5, although the people has been conveniently omitted. The Community shall act within the limits of the Treaty and its objectives. In areas, where the Community has been given exclusive powers, the situation is clear, in principle.
In areas of shared power, the objectives of the proposed action have to be weighed against the ability of the Member States to achieve the desired results on their own. If the results can be better achieved by the Community, by reason of the scale of the action or its effects, there may be grounds for Community action. This is the principle of subsidiarity, more or less letting the states including their sub-entities act if they are able to.
In addition, Community action shall be restricted to what is necessary to achieve the objectives of the Treaty. This is the principle of proportionality: to intrude no more than the objectives warrant.
The principles of subsidiarity and proportionality are elaborated further in a Protocol, added to the Treaty of Amsterdam, although it is debatable whether the Protocal clarifies matters substantially.
***
The Treaty of Lisbon merges the European Community into the European Union and consequently the treaty structure is clarified to some degree. The main principles and institutional clauses are found in the amended Treaty on European Union, and the “earthlier” questions of various policy areas are dealt with in the Treaty on the functioning of the European Union (the re-named TEC).
The principles of conferred competences (attributed powers), subsidiarity and proportionality remain essentially the same, but are moved to the amended TEU, where a new Article 3b has been dedicated to them.
Those who fear encroachment on states’ powers, may find pleasure in the fact that the IGC 2007 added the word “only” to the text of paragraph 2, compared to the Constitutional Treaty Article I-11, which offered the wording.
Additional guidelines are found in the Protocol on the application of the principles of subsidiarity and proportionality (CIG 14/07). The new protocol is clearer than the present one, since it is more focused on the procedural aspects of the application of TEU Article 3b.
Nine articles deal with wide consultation before legislative acts are proposed, sending proposals and amendments to national parliaments, appraisal of compliance with the principles of subsidiarity and proportionality in draft legislative acts, reasoned opinions of national parliaments within eight weeks, taking reasoned opinions into account, possible review of a proposed act, jurisdiction for the EU Court of Justice and annual Commission reports on the application of Article 3b.
***
In the Treaty of Lisbon (CIG 14/07) version of the Treaty on European Union (TEU), the following Article 3b has been inserted, replacing Article 5 of the Treaty establishing the European Community (TEC):
Article 3b
The limits of Union competences are governed by the principle of conferral. The use of Union competences is governed by the principles of subsidiarity and proportionality.
Under the principle of conferral, the Union shall act only within the limits of the competences conferred upon it by the Member States in the Treaties to attain the objectives set out therein. Competences not conferred upon the Union in the Treaties remain with the Member States.
Under the principle of subsidiarity, in areas which do not fall within its exclusive competence, the Union shall act only if and insofar as the objectives of the proposed action cannot be sufficiently achieved by the Member States, either at a central level or at a regional and local level, but can rather, by the reason of the scale or effects of the proposed action, be better achieved at Union level.
The institutions of the Union shall apply the principle of subsidiarity as laid down in the Protocol on the application of the principles of subsidiarity and proportionality. National Parliaments ensure compliance with the principle of subsidiarity in accordance with the procedure set out in that Protocol.
Under the principle of proportionality, the content and form of Union action shall not exceed what is necessary to achieve the objectives of the Treaties.
The institutions shall apply the principle of proportionality as laid down in the Protocol on the application of the principles of subsidiarity and proportionality.
***
My next article on the Treaty of Lisbon is going to look at questions concerning the citizens of the European Union more directly, namely the provisions on fundamental rights.
Ralf Grahn
Showing posts with label CIG 14/07. Show all posts
Showing posts with label CIG 14/07. Show all posts
Monday, 17 December 2007
Sunday, 16 December 2007
New Treaty of Lisbon web site
After the signing of the Treaty of Lisbon, the European Union has launched a new web site, dedicated to the amending Reform Treaty.
Already, there is an assortment of useful information: speeches, press releases, frequently asked questions, links to the Treaty etc.
But, as if to prove that the European Council, the Council and the other institutions are hard of hearing, there is this sentence on much needed consolidated versions of the Lisbon Treaty:
“A consolidated version of the Treaty will be published once it enters into force.”
Well, the quest for 19 more consolidated language versions of the amended Treaty on European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU) must continue outside the institutional framework.
I sincerely hope that there are civic-minded organisations out there, ready to serve the citizens of the European Union.
By the way, the existing consolidations in English, French, Spanish and Swedish have to be brushed up, since minor corrections have been posted on the Council web site. It should not take too long before the corrections are inserted into the final text and published in the Official Journal.
Ralf Grahn
Source: New EU web site dedicated to the Treaty of Lisbon;
http://www.europa.eu/lisbon_treaty/index_en.htm
Already, there is an assortment of useful information: speeches, press releases, frequently asked questions, links to the Treaty etc.
But, as if to prove that the European Council, the Council and the other institutions are hard of hearing, there is this sentence on much needed consolidated versions of the Lisbon Treaty:
“A consolidated version of the Treaty will be published once it enters into force.”
Well, the quest for 19 more consolidated language versions of the amended Treaty on European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU) must continue outside the institutional framework.
I sincerely hope that there are civic-minded organisations out there, ready to serve the citizens of the European Union.
By the way, the existing consolidations in English, French, Spanish and Swedish have to be brushed up, since minor corrections have been posted on the Council web site. It should not take too long before the corrections are inserted into the final text and published in the Official Journal.
Ralf Grahn
Source: New EU web site dedicated to the Treaty of Lisbon;
http://www.europa.eu/lisbon_treaty/index_en.htm
EU Treaty of Lisbon: Member States
Surely, not only one, but 27 European governments must have signed away their countries, freedoms, democracy, the rule of law as well as their cultures, traditions and languages on that fatal 13 December 2007 in Lisbon, didn’t they?
Everything worth living and dying for was crushed by the new evil empire born, the European Superstate, wasn’t it?
Alice in Wonderland never had the hallucinating experiences a few glimpses of the English tabloids and blogosphere offer in abundance. Vitriolic distortion seems to be par for the course.
Judging from the shouted comments, few of the scare-mongering crowd have read the existing EU and EC Treaties or the amending Treaty of Lisbon, and even fewer have understood their contents.
The government of the United Kingdom has, along with 26 other governments, signed the Reform Treaty of the European Union, named the Treaty of Lisbon. But the UK government and Parliament have not stood up for the amending Treaty.
Mainly, they have been busy with explaining and exploring where they have managed to obstruct the progress of others and how convincingly they have been able to distance themselves from the rest of Europe by various opt-outs and quibbles over wording.
Instead of relinquishing new powers to the European Union, the Member States have mainly tinkered with the internal “rules of procedure” in order to make the enlarged Union become a bit less ineffective in dealing with the competences it already has.
Effectiveness, democracy and solidarity have advanced timorously. On the whole, the European Union is not going to be able to act decisively on the world stage, in spite of growing global challenges.
The foreign, security and defence policies of the European Union continue to be highly intergovernmental and ineffective, requiring unanimity in crucial decisions (liberum veto) and practically outside democratic scrutiny at the Union level. That the individual governments lack the capacity to meet the main challenges effectively, seems to be a minor concern.
***
Let us look at what the amended Treaty on European Union actually says.
After the basic Treaty structure, values and objectives of the European Union, we reach some of the umpteen reminders that the EU at this stage is mainly a creature of Member States’ governments, and that the Union is held on a short leash (well too short to achieve its most important aims).
Instead of a list of overwhelming powers being relinquished by the governments, we are confronted with a variety of clauses hedging in the capacity of the European Union to act.
Up front, the EU Treaty resembles the Ten Commandments: Thou shalt not …
Time and again, we are reminded of what the Union shall not do, irrespectively of if the Member States can meet the challenges effectively on their own.
***
The new Article 3a, paragraph 1, tells us that the European Union exercises only the powers conferred upon it. The principle of attributed powers limits the scope of Union legislation and action. Everything the EU does, has to be based on the Treaties.
All other powers (competences) remain with the Member States. And the Member States themselves, through their representatives, man the European Council and the Council, the two most important institutions of the EU.
The European Union may not be fully democratic, but it is subject to the rule of law.
In addition to the principle of equality of Member States, Article 3a, paragraph 2, contains a host of pointers on the questions remaining within the purview of the Member States. National identities, political and constitutional structures, regional and local self-government, territorial integrity, law and order as well as national security (mentioned twice) remain, fundamentally, matters for the Member States. (This follows the wording of the Constitutional Treaty, Article I-5, paragraph 1, except for the mainly repetitive words now added: In particular, national security remains the sole responsibility of each Member State.)
Since the European Union is a joint effort, established to promote common interests, Article 3a, paragraph 3, reminds us that team efforts are needed. On the whole, the European Union lacks the administrative machinery needed to execute its acts and decisions. Therefore, the Member States have an obligation to fulfil these obligations. This shall be done in a spirit of loyal cooperation. (Article 10 of the current TEC is essentially the same as the second and third subparagraphs of Article 3a(3); Article I-5, paragraph 2, of the Constitutional Treaty would have been essentially the same as the whole paragraph 3 of Article 3a).
***
The Treaty on European Union, as amended by the Treaty of Lisbon (CIG 14/07). Article 3 is repealed and the following Article 3a is inserted:
1. In accordance with Article 3b, competences not conferred upon the Union in the Treaties remain with the Member States.
2. The Union shall respect the equality of the Member States before the Treaties as well as their national identities, inherent in their fundamental structures, political and constitutional, inclusive of regional and local self-government. It shall respect their essential State functions, including ensuring the territorial integrity of the State, maintaining law and order and safeguarding national security. In particular, national security remains the sole responsibility of each Member State.
3. Pursuant to the principle of sincere cooperation, the Union and the Member States shall, in full mutual respect, assist each other in carrying out tasks which flow from the Treaties.
The Member States shall take any appropriate measure, general or particular, to ensure fulfilment of the obligations arising out of the Treaties or resulting from the acts of the institutions of the Union.
The Member States shall facilitate the achievement of the Union’s tasks and refrain from any measure which could jeopardise the attainment of the Union’s objectives.
***
The Member States are mentioned ad nauseam in the amended Treaty on European Union, but otherwise I see very little to merit popular uprisings or grave insults. Tedious stuff, mainly.
I realise that I am a hack, totally lacking the inventive spirit of tabloid journalists.
Ralf Grahn
Everything worth living and dying for was crushed by the new evil empire born, the European Superstate, wasn’t it?
Alice in Wonderland never had the hallucinating experiences a few glimpses of the English tabloids and blogosphere offer in abundance. Vitriolic distortion seems to be par for the course.
Judging from the shouted comments, few of the scare-mongering crowd have read the existing EU and EC Treaties or the amending Treaty of Lisbon, and even fewer have understood their contents.
The government of the United Kingdom has, along with 26 other governments, signed the Reform Treaty of the European Union, named the Treaty of Lisbon. But the UK government and Parliament have not stood up for the amending Treaty.
Mainly, they have been busy with explaining and exploring where they have managed to obstruct the progress of others and how convincingly they have been able to distance themselves from the rest of Europe by various opt-outs and quibbles over wording.
Instead of relinquishing new powers to the European Union, the Member States have mainly tinkered with the internal “rules of procedure” in order to make the enlarged Union become a bit less ineffective in dealing with the competences it already has.
Effectiveness, democracy and solidarity have advanced timorously. On the whole, the European Union is not going to be able to act decisively on the world stage, in spite of growing global challenges.
The foreign, security and defence policies of the European Union continue to be highly intergovernmental and ineffective, requiring unanimity in crucial decisions (liberum veto) and practically outside democratic scrutiny at the Union level. That the individual governments lack the capacity to meet the main challenges effectively, seems to be a minor concern.
***
Let us look at what the amended Treaty on European Union actually says.
After the basic Treaty structure, values and objectives of the European Union, we reach some of the umpteen reminders that the EU at this stage is mainly a creature of Member States’ governments, and that the Union is held on a short leash (well too short to achieve its most important aims).
Instead of a list of overwhelming powers being relinquished by the governments, we are confronted with a variety of clauses hedging in the capacity of the European Union to act.
Up front, the EU Treaty resembles the Ten Commandments: Thou shalt not …
Time and again, we are reminded of what the Union shall not do, irrespectively of if the Member States can meet the challenges effectively on their own.
***
The new Article 3a, paragraph 1, tells us that the European Union exercises only the powers conferred upon it. The principle of attributed powers limits the scope of Union legislation and action. Everything the EU does, has to be based on the Treaties.
All other powers (competences) remain with the Member States. And the Member States themselves, through their representatives, man the European Council and the Council, the two most important institutions of the EU.
The European Union may not be fully democratic, but it is subject to the rule of law.
In addition to the principle of equality of Member States, Article 3a, paragraph 2, contains a host of pointers on the questions remaining within the purview of the Member States. National identities, political and constitutional structures, regional and local self-government, territorial integrity, law and order as well as national security (mentioned twice) remain, fundamentally, matters for the Member States. (This follows the wording of the Constitutional Treaty, Article I-5, paragraph 1, except for the mainly repetitive words now added: In particular, national security remains the sole responsibility of each Member State.)
Since the European Union is a joint effort, established to promote common interests, Article 3a, paragraph 3, reminds us that team efforts are needed. On the whole, the European Union lacks the administrative machinery needed to execute its acts and decisions. Therefore, the Member States have an obligation to fulfil these obligations. This shall be done in a spirit of loyal cooperation. (Article 10 of the current TEC is essentially the same as the second and third subparagraphs of Article 3a(3); Article I-5, paragraph 2, of the Constitutional Treaty would have been essentially the same as the whole paragraph 3 of Article 3a).
***
The Treaty on European Union, as amended by the Treaty of Lisbon (CIG 14/07). Article 3 is repealed and the following Article 3a is inserted:
1. In accordance with Article 3b, competences not conferred upon the Union in the Treaties remain with the Member States.
2. The Union shall respect the equality of the Member States before the Treaties as well as their national identities, inherent in their fundamental structures, political and constitutional, inclusive of regional and local self-government. It shall respect their essential State functions, including ensuring the territorial integrity of the State, maintaining law and order and safeguarding national security. In particular, national security remains the sole responsibility of each Member State.
3. Pursuant to the principle of sincere cooperation, the Union and the Member States shall, in full mutual respect, assist each other in carrying out tasks which flow from the Treaties.
The Member States shall take any appropriate measure, general or particular, to ensure fulfilment of the obligations arising out of the Treaties or resulting from the acts of the institutions of the Union.
The Member States shall facilitate the achievement of the Union’s tasks and refrain from any measure which could jeopardise the attainment of the Union’s objectives.
***
The Member States are mentioned ad nauseam in the amended Treaty on European Union, but otherwise I see very little to merit popular uprisings or grave insults. Tedious stuff, mainly.
I realise that I am a hack, totally lacking the inventive spirit of tabloid journalists.
Ralf Grahn
Monday, 10 December 2007
Treaty of Lisbon values
In the final version of the EU Treaty of Lisbon, the values of the European Union have been inserted in Article 1a (CIG 14/07).
The wording is the same as in the Treaty establishing a Constitution for Europe, Article I-2.
At present, the values are mentioned in the Treaty on European Union, Article 6.1: The Union is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law, principles which are common to the Member States.
The values are fundamental, not only to the European Union, but said to be common to the Member States.
The values offer a guide for assessing every action of the European Union, both external and internal. They act as guidelines for enlargement, since new Member States have to fulfil these criteria.
Sanctions may be applied to Member States in breach of the Union’s values (new Article 7).
***
The consolidated Treaty on European Union, as amended by the Treaty of Lisbon (CIG 14/07), Title I, General Provisions:
Article 1a
The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail.
***
The next posting is going to present the Union’s aims (Article 2).
Ralf Grahn
The wording is the same as in the Treaty establishing a Constitution for Europe, Article I-2.
At present, the values are mentioned in the Treaty on European Union, Article 6.1: The Union is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law, principles which are common to the Member States.
The values are fundamental, not only to the European Union, but said to be common to the Member States.
The values offer a guide for assessing every action of the European Union, both external and internal. They act as guidelines for enlargement, since new Member States have to fulfil these criteria.
Sanctions may be applied to Member States in breach of the Union’s values (new Article 7).
***
The consolidated Treaty on European Union, as amended by the Treaty of Lisbon (CIG 14/07), Title I, General Provisions:
Article 1a
The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail.
***
The next posting is going to present the Union’s aims (Article 2).
Ralf Grahn
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