The European Police Office (Europol) has been given a legal framework easier to adapt to changing needs. Joint investigation teams won’t be immune from prosecution. Europol has a new Director.
***
Europol Decision
The laborious procedures to amend and to ratify the Europol Convention have now been replaced by a Council Decision:
Council Decision 2009/371/JHA of 6 April 2009 establishing the European Police Office (Europol), published in the Official Journal of the European Union (OJEU) 15.5.2009 L 121/37.
***
Joint investigation teams
In the same OJEU issue, the immunity from legal proceedings is not extended to Europol staff placed at the disposal of a joint investigation team in respect of official acts required to be undertaken in fulfilment of the tasks set out in Article 6 of Council Decision 2009/371/JHA of 6 April 2009 establishing the European Police Office (Europol).
This is the content of:
Council Regulation (EC) No 371/2009 of 27 November 2008 amending Regulation (Euratom, ECSC, EEC) No 549/69 determining the categories of officials and other servants of the European Communities to whom the provisions of Article 12, the second paragraph of Article 13 and Article 14 of the Protocol on the Privileges and Immunities of the Communities apply.
***
New Director of Europol
Mr Robert Wainwright has been appointed as Director of Europol from 16 April 2009 to 15 April 2013.
The official confirmation is by the Council Act of 6 April 2009 appointing the Director of Europol, published OJEU 15.5.2009 C 111/4.
Ralf Grahn
Showing posts with label decision. Show all posts
Showing posts with label decision. Show all posts
Friday, 15 May 2009
Sunday, 22 March 2009
Lisbon Treaty & European Council: Simple majority decisions
After looking at qualified majority voting (QMV) in the European Council, we turn to the instances when it takes its decisions by simple majority.
***
SIMPLE MAJORITY
Treaty amendment ─ With or without IGC?
When a member state, the European Parliament or the Commission has submitted to the Council a proposal for the amendment of the treaties, Article 48 TEU under the ordinary revision procedure, sees the European Council deciding by a simple majority to examine the proposed amendments. Normally, this leads to a Convention, but the European Council can decide by a simple majority to refer “small change” directly to an intergovernmental conference (IGC):
Article 48(3) TEU
3. If the European Council, after consulting the European Parliament and the Commission, adopts by a simple majority a decision in favour of examining the proposed amendments, the President of the European Council shall convene a Convention composed of representatives of the national Parliaments, of the Heads of State or Government of the Member States, of the European Parliament and of the Commission. The European Central Bank shall also be consulted in the case of institutional changes in the monetary area. The Convention shall examine the proposals for amendments and shall adopt by consensus a recommendation to a conference of representatives of the governments of the Member States as provided for in paragraph 4.
The European Council may decide by a simple majority, after obtaining the consent of the European Parliament, not to convene a Convention should this not be justified by the extent of the proposed amendments. In the latter case, the European Council shall define the terms of reference for a conference of representatives of the governments of the Member States.
***
Procedural questions & Rules of Procedure
According to Article 235(3) of the Treaty on the Functioning of the European Union (TFEU), the European Council decides by simple majority on procedural questions and the adoption of its Rules of Procedure:
Article 235(3) TFEU
3. The European Council shall act by a simple majority for procedural questions and for the adoption of its Rules of Procedure.
(We are still waiting for progress reports on the preparatory work and concrete proposals concerning the implementation of the Treaty of Lisbon. Among the awaited proposals is the one with the European Council’s Rules of Procedure.)
***
The next post is going to indicate the voting rules (a tribute payment to the constraints of unanimous treaty amendment).
Ralf Grahn
***
SIMPLE MAJORITY
Treaty amendment ─ With or without IGC?
When a member state, the European Parliament or the Commission has submitted to the Council a proposal for the amendment of the treaties, Article 48 TEU under the ordinary revision procedure, sees the European Council deciding by a simple majority to examine the proposed amendments. Normally, this leads to a Convention, but the European Council can decide by a simple majority to refer “small change” directly to an intergovernmental conference (IGC):
Article 48(3) TEU
3. If the European Council, after consulting the European Parliament and the Commission, adopts by a simple majority a decision in favour of examining the proposed amendments, the President of the European Council shall convene a Convention composed of representatives of the national Parliaments, of the Heads of State or Government of the Member States, of the European Parliament and of the Commission. The European Central Bank shall also be consulted in the case of institutional changes in the monetary area. The Convention shall examine the proposals for amendments and shall adopt by consensus a recommendation to a conference of representatives of the governments of the Member States as provided for in paragraph 4.
The European Council may decide by a simple majority, after obtaining the consent of the European Parliament, not to convene a Convention should this not be justified by the extent of the proposed amendments. In the latter case, the European Council shall define the terms of reference for a conference of representatives of the governments of the Member States.
***
Procedural questions & Rules of Procedure
According to Article 235(3) of the Treaty on the Functioning of the European Union (TFEU), the European Council decides by simple majority on procedural questions and the adoption of its Rules of Procedure:
Article 235(3) TFEU
3. The European Council shall act by a simple majority for procedural questions and for the adoption of its Rules of Procedure.
(We are still waiting for progress reports on the preparatory work and concrete proposals concerning the implementation of the Treaty of Lisbon. Among the awaited proposals is the one with the European Council’s Rules of Procedure.)
***
The next post is going to indicate the voting rules (a tribute payment to the constraints of unanimous treaty amendment).
Ralf Grahn
Lisbon Treaty & European Council: Qualified majority voting
The European Council generally seeks consensus on political guidelines and most of its concrete decisions have to be unanimous. But some questions the European Council can decide by voting.
We look at where the European Council needs a qualified majority (QMV) according to the Treaty of Lisbon.
***
QUALIFIED MAJORITY VOTING
“Presidential elections”
The European Union elects its President by a qualified majority according to Article 15(5) of the amended Treaty on European Union (TEU):
Article 15(5) TEU
5. The European Council shall elect its President, by a qualified majority, for a term of two and a half years, renewable once. In the event of an impediment or serious misconduct, the European Council can end the President's term of office in accordance with the same procedure.
(Consolidated Treaty of Lisbon, published in OJEU 9.5.2008 C 115)
***
President of the Commission
The European Council takes the results of the European elections into account and holds appropriate consultations, before it proposes a candidate for President of the Commission. The proposal is made by a qualified majority.
If the proposal fails, a new one is made by qualified majority.
When the European Parliament has elected the Commission President and later given its consent to the Commission as a body, the European Council appoints the Commission by a qualified majority:
Article 17(7) TEU
7. Taking into account the elections to the European Parliament and after having held the appropriate consultations, the European Council, acting by a qualified majority, shall propose to the European Parliament a candidate for President of the Commission. This candidate shall be elected by the European Parliament by a majority of its component members. If he does not obtain the required majority, the European Council, acting by a qualified majority, shall within one month propose a new candidate who shall be elected by the European Parliament following the same procedure.
The Council, by common accord with the President-elect, shall adopt the list of the other persons whom it proposes for appointment as members of the Commission. They shall be selected, on the basis of the suggestions made by Member States, in accordance with the criteria set out in paragraph 3, second subparagraph, and paragraph 5, second subparagraph.
The President, the High Representative of the Union for Foreign Affairs and Security Policy and the other members of the Commission shall be subject as a body to a vote of consent by the European Parliament. On the basis of this consent the Commission shall be appointed by the European Council, acting by a qualified majority.
***
(See Declaration 11 on Article 17(6) and (7) of the Treaty on European Union on consultations between the European Parliament and the European Council.)
***
High Representative
Qualified majority voting can be used by the European Council to appoint the High Representative, as well as to end his term of office:
Article 18 TEU
1. The European Council, acting by a qualified majority, with the agreement of the President of the Commission, shall appoint the High Representative of the Union for Foreign Affairs and Security Policy. The European Council may end his term of office by the same procedure.
***
Council configurations and Presidency
The Lisbon Treaty splits the existing General Affairs and External Relations Council (GAERC) into two new configurations named in the treaty, the coordinating General Affairs Council (GAC) and the Foreign Affairs Council (FAC) covering the whole of external relations.
Therefore the European Council decides only on the other Council configurations. The decision is made by qualified majority.
The rotating Council Presidency is abolished for the European Council itself (new President) and for the FAC (High Representative), but with regard to the other Council configurations the system continues. The system is based on equal rotation, offering each member state six months at the helm every 13.5 years (in an EU with 27 members):
Article 236 TFEU
The European Council shall adopt by a qualified majority:
(a) a decision establishing the list of Council configurations, other than those of the General Affairs Council and of the Foreign Affairs Council, in accordance with Article 16(6) of the Treaty on European Union;
(b) a decision on the Presidency of Council configurations, other than that of Foreign Affairs, in accordance with Article 16(9) of the Treaty on European Union.
***
(See Declaration 9 on Article 16(9) of the Treaty on European Union concerning the European Council decision on the exercise of the Presidency of the Council.)
***
Executive Board of ECB
The President, the Vice-President and the four other members of the Executive Board of the European Central Bank are (ECB) appointed by the European Council, acting by a qualified majority:
Article 283(2) TFEU, second subparagraph
The President, the Vice-President and the other members of the Executive Board shall be appointed by the European Council, acting by a qualified majority, from among persons of recognised standing and professional experience in monetary or banking matters, on a recommendation from the Council, after it has consulted the European Parliament and the Governing Council of the European Central Bank.
(The contents are repeated in Article 11.2 of the Statute of the European System of Central Banks and the European Central Bank; Protocol (No 4))
***
The Protocol (No 19) on the Schengen acquis integrated into the framework of the European Union foresees a qualified majority decision by the European Council in a case referred to it:
Article 5(4)
4. If, by the end of the period of four months, the Council has not adopted a decision, a Member State may, without delay, request that the matter be referred to the European Council. In that case, the European Council shall, at its next meeting, acting by a qualified majority on a proposal from the Commission, take a decision in accordance with the criteria referred to in paragraph 3.
***
The next post looks at when the European Council can decide by simple majority.
Ralf Grahn
We look at where the European Council needs a qualified majority (QMV) according to the Treaty of Lisbon.
***
QUALIFIED MAJORITY VOTING
“Presidential elections”
The European Union elects its President by a qualified majority according to Article 15(5) of the amended Treaty on European Union (TEU):
Article 15(5) TEU
5. The European Council shall elect its President, by a qualified majority, for a term of two and a half years, renewable once. In the event of an impediment or serious misconduct, the European Council can end the President's term of office in accordance with the same procedure.
(Consolidated Treaty of Lisbon, published in OJEU 9.5.2008 C 115)
***
President of the Commission
The European Council takes the results of the European elections into account and holds appropriate consultations, before it proposes a candidate for President of the Commission. The proposal is made by a qualified majority.
If the proposal fails, a new one is made by qualified majority.
When the European Parliament has elected the Commission President and later given its consent to the Commission as a body, the European Council appoints the Commission by a qualified majority:
Article 17(7) TEU
7. Taking into account the elections to the European Parliament and after having held the appropriate consultations, the European Council, acting by a qualified majority, shall propose to the European Parliament a candidate for President of the Commission. This candidate shall be elected by the European Parliament by a majority of its component members. If he does not obtain the required majority, the European Council, acting by a qualified majority, shall within one month propose a new candidate who shall be elected by the European Parliament following the same procedure.
The Council, by common accord with the President-elect, shall adopt the list of the other persons whom it proposes for appointment as members of the Commission. They shall be selected, on the basis of the suggestions made by Member States, in accordance with the criteria set out in paragraph 3, second subparagraph, and paragraph 5, second subparagraph.
The President, the High Representative of the Union for Foreign Affairs and Security Policy and the other members of the Commission shall be subject as a body to a vote of consent by the European Parliament. On the basis of this consent the Commission shall be appointed by the European Council, acting by a qualified majority.
***
(See Declaration 11 on Article 17(6) and (7) of the Treaty on European Union on consultations between the European Parliament and the European Council.)
***
High Representative
Qualified majority voting can be used by the European Council to appoint the High Representative, as well as to end his term of office:
Article 18 TEU
1. The European Council, acting by a qualified majority, with the agreement of the President of the Commission, shall appoint the High Representative of the Union for Foreign Affairs and Security Policy. The European Council may end his term of office by the same procedure.
***
Council configurations and Presidency
The Lisbon Treaty splits the existing General Affairs and External Relations Council (GAERC) into two new configurations named in the treaty, the coordinating General Affairs Council (GAC) and the Foreign Affairs Council (FAC) covering the whole of external relations.
Therefore the European Council decides only on the other Council configurations. The decision is made by qualified majority.
The rotating Council Presidency is abolished for the European Council itself (new President) and for the FAC (High Representative), but with regard to the other Council configurations the system continues. The system is based on equal rotation, offering each member state six months at the helm every 13.5 years (in an EU with 27 members):
Article 236 TFEU
The European Council shall adopt by a qualified majority:
(a) a decision establishing the list of Council configurations, other than those of the General Affairs Council and of the Foreign Affairs Council, in accordance with Article 16(6) of the Treaty on European Union;
(b) a decision on the Presidency of Council configurations, other than that of Foreign Affairs, in accordance with Article 16(9) of the Treaty on European Union.
***
(See Declaration 9 on Article 16(9) of the Treaty on European Union concerning the European Council decision on the exercise of the Presidency of the Council.)
***
Executive Board of ECB
The President, the Vice-President and the four other members of the Executive Board of the European Central Bank are (ECB) appointed by the European Council, acting by a qualified majority:
Article 283(2) TFEU, second subparagraph
The President, the Vice-President and the other members of the Executive Board shall be appointed by the European Council, acting by a qualified majority, from among persons of recognised standing and professional experience in monetary or banking matters, on a recommendation from the Council, after it has consulted the European Parliament and the Governing Council of the European Central Bank.
(The contents are repeated in Article 11.2 of the Statute of the European System of Central Banks and the European Central Bank; Protocol (No 4))
***
The Protocol (No 19) on the Schengen acquis integrated into the framework of the European Union foresees a qualified majority decision by the European Council in a case referred to it:
Article 5(4)
4. If, by the end of the period of four months, the Council has not adopted a decision, a Member State may, without delay, request that the matter be referred to the European Council. In that case, the European Council shall, at its next meeting, acting by a qualified majority on a proposal from the Commission, take a decision in accordance with the criteria referred to in paragraph 3.
***
The next post looks at when the European Council can decide by simple majority.
Ralf Grahn
Saturday, 21 March 2009
Lisbon Treaty & European Council: Unanimous decisions
As we have seen, the European Council takes its decisions by consensus according to the general rule (Article 15(4) TEU), and facilitating cohesion and consensus is one of the President’s task (Article 15(5)(c)).
Further, we have looked at the decisions the European Council takes ‘by unanimity’, according to the wording of the Treaty of Lisbon.
Now we look at when the Lisbon Treaty employs the term ‘unanimous(ly)’ in conjunction with decisions by the European Council. This is not to imply any material differences between ‘by unanimity’ and ‘unanimous(ly)’, but purely as a matter of convenience.
We follow the consolidated Treaty of Lisbon, published OJEU 9.5.2008 C 115.
***
Number of Commissioners
Under the current Treaty of Nice, the number of Commissioners would have to be reduced, i.e. if the Lisbon Treaty does not enter into force.
The Treaty of Lisbon would directly alleviate one of the Irish concerns for the next term of the Commission. According to Article 17(4) of the amended Treaty on European Union (TEU), the Commission appointed between the date of entry into force of the Treaty of Lisbon and 31 October 2014, shall consist of one national of each Member State, including its President and the High Representative of the Union for Foreign Affairs and Security Policy who shall be one of its Vice-Presidents.
As from 1 November 2014 the number of Commissioners would fall, corresponding to two thirds of the number of Member States. Pursuant to Article 17(5) TEU, the European Council, acting unanimously, could decide to alter the number, which includes the Commission President and the High Representative of the Union for Foreign Affairs and Security Policy (Vice-President).
(The European Council 11 to 12 December 2008 agreed that provided the Treaty of Lisbon enters into force, a decision will be taken, in accordance with the necessary legal procedures, to the effect that the Commission shall continue to include one national of each Member State. ─ If the Lisbon Treaty enters into force, each member state is already guaranteed a Commissioner until the end of October 2014. Hence, the Presidency Conclusions can only mean that the member states have agreed with regard to 1 November 2014 and beyond. Technically this could be achieved by a unanimous decision by the European Council or by changing the treaty text or by adding a legally binding protocol.)
***
Equal rotation
If and when the numbers of the Commission were reduced, the Lisbon Treaty foresaw a system of strictly equal rotation, based on a unanimous decision by the European Council:
Article 17(5), TEU, second subparagraph
The members of the Commission shall be chosen from among the nationals of the Member States on the basis of a system of strictly equal rotation between the Member States, reflecting the demographic and geographical range of all the Member States. This system shall be established unanimously by the European Council in accordance with Article 244 of the Treaty on the Functioning of the European Union.
***
Commission: system of rotation
In accordance with Article 17(5) of the Treaty on European Union, the Members of the Commission
shall be chosen on the basis of a system of rotation established unanimously by the European Council and on the basis of the principles laid down in Article 244 TFEU.
(The botched reform of the Commission would make Article 244 TFEU redundant.)
***
Strategic interests and objectives
The European Council shall act unanimously on a recommendation from the Council, when it sets out the strategic interests and objectives of the European Union with regard to its action on the international scene (Article 22 TEU).
***
CFSP
The common foreign and security policy (CFSP) is subject to specific rules and procedures. It shall be defined and implemented by the European Council and the Council acting unanimously, except where the Treaties provide otherwise. The adoption of legislative acts shall be excluded (Article 24 TEU).
This is repeated in Article 31 TEU.
***
Qualified majority in Council
The European Council may unanimously adopt a decision extending the use of qualified majority in the Council, but neither qualified majority nor extension of it applies to decisions having military or defence implications (Article 31 TEU).
***
CSDP
According to Article 42(2) TEU, the common security and defence policy shall include the progressive framing of a common Union defence policy. This will lead to a common defence, when the European Council, acting unanimously, so decides. It shall in that case recommend to the Member States the adoption of such a decision in accordance with their respective constitutional requirements.
(Even if many of the decisions requiring unanimity in the European Council or the Council, are practically unattainable in practice, a common defence may become a reality if the mainstream EU member states embrace the twin concepts of a European defence and NATO membership. By reintegrating into the NATO structures, France has paved the way. The six EU members still outside NATO need not stand in the way, because according to the second subparagraph the CSDP does not prejudice the specific character of the security and defence policy of certain Member States. In addition, Ireland has been given specific assurances in connection with the Lisbon Treaty.)
***
Secession
If a member state decides to withdraw from the European Union, Article 50 TEU foresees notification and a period of negotiations. Due to the links between the member states and the EU, it is no easy task. It could be called reverse engineering of membership. The seceding state would probably want some sort of future relationship, which would have to be negotiated, within the European Economic Area (EEA) or outside.
But Article 50(3) TEU makes it clear that the European Union does not imprison states against their will. Secession enters into force two years after notification, even if the negotiations continue, unless the member state concerned agrees to extend the period. In that case the European Council (less the seceding member) decides unanimously to prolong the period:
3. The Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period.
***
Extending powers of European Public Prosecutor
According to Article 86(4) TFEU, the European Council may extend the powers of the European Public Prosecutor's Office to include serious crime having a cross-border dimension and amending accordingly paragraph 2 as regards the perpetrators of, and accomplices in, serious crimes affecting more than one Member State. The European Council shall act unanimously after obtaining the consent of the European Parliament and after consulting the Commission.
***
Multiannual financial framework
According to Article 312(2) TFEU, the Council, acting in accordance with a special legislative procedure, shall adopt a regulation laying down the multiannual financial framework. The Council shall act unanimously after obtaining the consent of the European Parliament, which shall be given by a majority of its component members.
The second subparagraph offers the European Council the possibility, unanimously, to adopt a decision authorising the Council to act by a qualified majority when adopting the regulation referred to in the first subparagraph.
***
Non-European territories
According to Article 355 TFEU, the provisions of the Treaties shall apply to Guadeloupe, French Guiana, Martinique, Réunion, Saint-Barthélemy, Saint-Martin, the Azores, Madeira and the Canary Islands in accordance with Article 349, and the special arrangements for association set out in Part Four shall apply to the overseas countries and territories listed in Annex II.
The European Council may, on the initiative of the Member State concerned, adopt a decision amending the status, with regard to the Union, of a Danish, French or Netherlands country or territory referred to above. The European Council shall act unanimously after consulting the Commission.
***
Amending ESCB Statute
Article 10.2 the Statute of the European System of Central Banks and of the European Central Bank (Protocol No 4), on voting rights in the Governing Council, can be amended by a unanimous decision by the European Council in the following way:
Article 40.2.
Article 10.2 may be amended by a decision of the European Council, acting unanimously, either on a recommendation from the European Central Bank and after consulting the European Parliament and the Commission, or on a recommendation from the Commission and after consulting the European Parliament and the European Central Bank. These amendments shall not enter into force until they are approved by the Member States in accordance with their respective constitutional requirements.
***
Are we any wiser?
Perhaps we can draw the conclusion that the general rule on consensus applies primarily to the effort to find common ground with regard to political texts. Unanimity is regularly evoked in settings calling for concrete decisions, not only with regard to the European Council but in a multitude of questions where the unanimity requirement concerns the Council.
In both cases, less enthusiastic member states can refrain from active opposition (abstain), which means that the bottom line differences between consensus and unanimous decisions are small.
In a wider perspective, low grade compromises and the lack of unanimity hamper the development of the European Union and its action. In crucial areas, the EU remains a giant on clay feet.
Ralf Grahn
Further, we have looked at the decisions the European Council takes ‘by unanimity’, according to the wording of the Treaty of Lisbon.
Now we look at when the Lisbon Treaty employs the term ‘unanimous(ly)’ in conjunction with decisions by the European Council. This is not to imply any material differences between ‘by unanimity’ and ‘unanimous(ly)’, but purely as a matter of convenience.
We follow the consolidated Treaty of Lisbon, published OJEU 9.5.2008 C 115.
***
Number of Commissioners
Under the current Treaty of Nice, the number of Commissioners would have to be reduced, i.e. if the Lisbon Treaty does not enter into force.
The Treaty of Lisbon would directly alleviate one of the Irish concerns for the next term of the Commission. According to Article 17(4) of the amended Treaty on European Union (TEU), the Commission appointed between the date of entry into force of the Treaty of Lisbon and 31 October 2014, shall consist of one national of each Member State, including its President and the High Representative of the Union for Foreign Affairs and Security Policy who shall be one of its Vice-Presidents.
As from 1 November 2014 the number of Commissioners would fall, corresponding to two thirds of the number of Member States. Pursuant to Article 17(5) TEU, the European Council, acting unanimously, could decide to alter the number, which includes the Commission President and the High Representative of the Union for Foreign Affairs and Security Policy (Vice-President).
(The European Council 11 to 12 December 2008 agreed that provided the Treaty of Lisbon enters into force, a decision will be taken, in accordance with the necessary legal procedures, to the effect that the Commission shall continue to include one national of each Member State. ─ If the Lisbon Treaty enters into force, each member state is already guaranteed a Commissioner until the end of October 2014. Hence, the Presidency Conclusions can only mean that the member states have agreed with regard to 1 November 2014 and beyond. Technically this could be achieved by a unanimous decision by the European Council or by changing the treaty text or by adding a legally binding protocol.)
***
Equal rotation
If and when the numbers of the Commission were reduced, the Lisbon Treaty foresaw a system of strictly equal rotation, based on a unanimous decision by the European Council:
Article 17(5), TEU, second subparagraph
The members of the Commission shall be chosen from among the nationals of the Member States on the basis of a system of strictly equal rotation between the Member States, reflecting the demographic and geographical range of all the Member States. This system shall be established unanimously by the European Council in accordance with Article 244 of the Treaty on the Functioning of the European Union.
***
Commission: system of rotation
In accordance with Article 17(5) of the Treaty on European Union, the Members of the Commission
shall be chosen on the basis of a system of rotation established unanimously by the European Council and on the basis of the principles laid down in Article 244 TFEU.
(The botched reform of the Commission would make Article 244 TFEU redundant.)
***
Strategic interests and objectives
The European Council shall act unanimously on a recommendation from the Council, when it sets out the strategic interests and objectives of the European Union with regard to its action on the international scene (Article 22 TEU).
***
CFSP
The common foreign and security policy (CFSP) is subject to specific rules and procedures. It shall be defined and implemented by the European Council and the Council acting unanimously, except where the Treaties provide otherwise. The adoption of legislative acts shall be excluded (Article 24 TEU).
This is repeated in Article 31 TEU.
***
Qualified majority in Council
The European Council may unanimously adopt a decision extending the use of qualified majority in the Council, but neither qualified majority nor extension of it applies to decisions having military or defence implications (Article 31 TEU).
***
CSDP
According to Article 42(2) TEU, the common security and defence policy shall include the progressive framing of a common Union defence policy. This will lead to a common defence, when the European Council, acting unanimously, so decides. It shall in that case recommend to the Member States the adoption of such a decision in accordance with their respective constitutional requirements.
(Even if many of the decisions requiring unanimity in the European Council or the Council, are practically unattainable in practice, a common defence may become a reality if the mainstream EU member states embrace the twin concepts of a European defence and NATO membership. By reintegrating into the NATO structures, France has paved the way. The six EU members still outside NATO need not stand in the way, because according to the second subparagraph the CSDP does not prejudice the specific character of the security and defence policy of certain Member States. In addition, Ireland has been given specific assurances in connection with the Lisbon Treaty.)
***
Secession
If a member state decides to withdraw from the European Union, Article 50 TEU foresees notification and a period of negotiations. Due to the links between the member states and the EU, it is no easy task. It could be called reverse engineering of membership. The seceding state would probably want some sort of future relationship, which would have to be negotiated, within the European Economic Area (EEA) or outside.
But Article 50(3) TEU makes it clear that the European Union does not imprison states against their will. Secession enters into force two years after notification, even if the negotiations continue, unless the member state concerned agrees to extend the period. In that case the European Council (less the seceding member) decides unanimously to prolong the period:
3. The Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period.
***
Extending powers of European Public Prosecutor
According to Article 86(4) TFEU, the European Council may extend the powers of the European Public Prosecutor's Office to include serious crime having a cross-border dimension and amending accordingly paragraph 2 as regards the perpetrators of, and accomplices in, serious crimes affecting more than one Member State. The European Council shall act unanimously after obtaining the consent of the European Parliament and after consulting the Commission.
***
Multiannual financial framework
According to Article 312(2) TFEU, the Council, acting in accordance with a special legislative procedure, shall adopt a regulation laying down the multiannual financial framework. The Council shall act unanimously after obtaining the consent of the European Parliament, which shall be given by a majority of its component members.
The second subparagraph offers the European Council the possibility, unanimously, to adopt a decision authorising the Council to act by a qualified majority when adopting the regulation referred to in the first subparagraph.
***
Non-European territories
According to Article 355 TFEU, the provisions of the Treaties shall apply to Guadeloupe, French Guiana, Martinique, Réunion, Saint-Barthélemy, Saint-Martin, the Azores, Madeira and the Canary Islands in accordance with Article 349, and the special arrangements for association set out in Part Four shall apply to the overseas countries and territories listed in Annex II.
The European Council may, on the initiative of the Member State concerned, adopt a decision amending the status, with regard to the Union, of a Danish, French or Netherlands country or territory referred to above. The European Council shall act unanimously after consulting the Commission.
***
Amending ESCB Statute
Article 10.2 the Statute of the European System of Central Banks and of the European Central Bank (Protocol No 4), on voting rights in the Governing Council, can be amended by a unanimous decision by the European Council in the following way:
Article 40.2.
Article 10.2 may be amended by a decision of the European Council, acting unanimously, either on a recommendation from the European Central Bank and after consulting the European Parliament and the Commission, or on a recommendation from the Commission and after consulting the European Parliament and the European Central Bank. These amendments shall not enter into force until they are approved by the Member States in accordance with their respective constitutional requirements.
***
Are we any wiser?
Perhaps we can draw the conclusion that the general rule on consensus applies primarily to the effort to find common ground with regard to political texts. Unanimity is regularly evoked in settings calling for concrete decisions, not only with regard to the European Council but in a multitude of questions where the unanimity requirement concerns the Council.
In both cases, less enthusiastic member states can refrain from active opposition (abstain), which means that the bottom line differences between consensus and unanimous decisions are small.
In a wider perspective, low grade compromises and the lack of unanimity hamper the development of the European Union and its action. In crucial areas, the EU remains a giant on clay feet.
Ralf Grahn
Lisbon Treaty & European Council: Decisions by unanimity
The European Council takes a number of decisions by unanimity, according to the Treaty of Lisbon (OJEU 9.5.2008 C 115).
The European Council determines the existence of a serious and persistent breach by a Member State of the European Union’s founding values (Article 7(2) TEU).
The European Council adopts by unanimity, on the initiative of the European Parliament and with its consent, a decision establishing the composition of the European Parliament (Article 14(2) TEU).
If a member state applies the emergency brake with regard to a decision on foreign and security policy (CFSP), the European Council takes the decision by unanimity (Article 31(2) TEU).
With regard to the simplified revision procedure mentioned in Article 48 TEU, the European Council may adopt a decision amending all or part of the provisions of Part Three of the Treaty on the Functioning of the European Union. The European Council acts by unanimity, but the decision does not enter into force until it is approved by the Member States in accordance with their respective constitutional requirements.
The European Council shall act by unanimity when it adopts a decision authorising the Council to act by a qualified majority in an area or in a case providing for unanimity under the Treaty on the Functioning of the European Union or Title V TEU (external action, CFSP, excluding decisions with military implications or those in the area of defence) (Article 48(7) TEU).
Ralf Grahn
The European Council determines the existence of a serious and persistent breach by a Member State of the European Union’s founding values (Article 7(2) TEU).
The European Council adopts by unanimity, on the initiative of the European Parliament and with its consent, a decision establishing the composition of the European Parliament (Article 14(2) TEU).
If a member state applies the emergency brake with regard to a decision on foreign and security policy (CFSP), the European Council takes the decision by unanimity (Article 31(2) TEU).
With regard to the simplified revision procedure mentioned in Article 48 TEU, the European Council may adopt a decision amending all or part of the provisions of Part Three of the Treaty on the Functioning of the European Union. The European Council acts by unanimity, but the decision does not enter into force until it is approved by the Member States in accordance with their respective constitutional requirements.
The European Council shall act by unanimity when it adopts a decision authorising the Council to act by a qualified majority in an area or in a case providing for unanimity under the Treaty on the Functioning of the European Union or Title V TEU (external action, CFSP, excluding decisions with military implications or those in the area of defence) (Article 48(7) TEU).
Ralf Grahn
Lisbon Treaty & European Council: Decisions by consensus
The European Council takes its decisions by consensus according to the general rule (Article 15(4) TEU) and facilitating cohesion and consensus is one of the President’s task (Article 15(5)(c).
Let us see where else the Lisbon Treaty employs the term consensus in conjunction with the European Council.
In Article 82 TFEU, when the European Council has become employed by the ‘emergency brake’ concerning mutual recognition of judgments and judicial decisions and police and judicial cooperation in criminal matters having a cross-border dimension, the European Council after discussion, and in case of a consensus, within four months of the suspension, refers the draft back to the Council, which shall terminate the suspension of the ordinary legislative procedure.
The same procedure applies with regard to proposed directives establishing minimum rules concerning the definition of criminal offences and sanctions in the areas of particularly serious crime with a cross-border dimension (Article 83 TFEU).
Likewise, if a group of at least nine member states wants to establish enhanced cooperation in order to establish a European Public Prosecutor's Office from Eurojust, with the task to combat crimes affecting the financial interests of the Union (Article 86 TFEU).
The same procedure applies to operational cooperation concerning police authorities (Article 87 TFEU).
With regard to qualified majorities and blocking minorities, Protocol (No 9) on the decision of the Council relating to the implementation of Article 16(4) of the Treaty of European Union and Article 238(2) of the Treaty on the Functioning of the European Union between 1 November 2014 and 31 March 2017 on the one hand, and as from 1 April 2017 on the other, any amending or modifying act would be preceded by a preliminary deliberation by the European Council based on consensus.
Declaration (23).on the second paragraph of Article 48 of the Treaty on the Functioning of the European Union recalls that the European Council acts by consensus when it deals with a referral, where a member state has declared that a draft legislative act would affect important aspects of its social security system.
***
There seem to be two different situations mainly: The European Council sorts the situation out by reaching consensus needed for a Council decision. The referral is only temporary, and the willing press ahead with enhanced cooperation.
Next, we look at the terms unanimity and by unanimous decision.
Ralf Grahn
Let us see where else the Lisbon Treaty employs the term consensus in conjunction with the European Council.
In Article 82 TFEU, when the European Council has become employed by the ‘emergency brake’ concerning mutual recognition of judgments and judicial decisions and police and judicial cooperation in criminal matters having a cross-border dimension, the European Council after discussion, and in case of a consensus, within four months of the suspension, refers the draft back to the Council, which shall terminate the suspension of the ordinary legislative procedure.
The same procedure applies with regard to proposed directives establishing minimum rules concerning the definition of criminal offences and sanctions in the areas of particularly serious crime with a cross-border dimension (Article 83 TFEU).
Likewise, if a group of at least nine member states wants to establish enhanced cooperation in order to establish a European Public Prosecutor's Office from Eurojust, with the task to combat crimes affecting the financial interests of the Union (Article 86 TFEU).
The same procedure applies to operational cooperation concerning police authorities (Article 87 TFEU).
With regard to qualified majorities and blocking minorities, Protocol (No 9) on the decision of the Council relating to the implementation of Article 16(4) of the Treaty of European Union and Article 238(2) of the Treaty on the Functioning of the European Union between 1 November 2014 and 31 March 2017 on the one hand, and as from 1 April 2017 on the other, any amending or modifying act would be preceded by a preliminary deliberation by the European Council based on consensus.
Declaration (23).on the second paragraph of Article 48 of the Treaty on the Functioning of the European Union recalls that the European Council acts by consensus when it deals with a referral, where a member state has declared that a draft legislative act would affect important aspects of its social security system.
***
There seem to be two different situations mainly: The European Council sorts the situation out by reaching consensus needed for a Council decision. The referral is only temporary, and the willing press ahead with enhanced cooperation.
Next, we look at the terms unanimity and by unanimous decision.
Ralf Grahn
Lisbon Treaty & European Council: Consensus or unanimity?
The European Council primarily takes decisions which are politically (not legally) binding, such as Presidency Conclusions, declarations and guidelines. Its mode of operation can be seen as consensus seeking. Basically, the political texts can be watered down until consensus is reached.
One of the tasks of the new President of the European Council would be to facilitate cohesion and consensus within the European Council.
***
Consensus
In the Treaty of Lisbon, Article 15(4) of the amended Treaty on European Union (TEU) presents the main rule for decision-making:
Article 15(4) (Lisbon Treaty)
4. Except where the Treaties provide otherwise, decisions of the European Council shall be taken by consensus.
(OJEU 9.5.2008 C 115/23)
***
Consensus or unanimity?
Is there a real difference between consensus and unanimity? Unanimity may evoke feelings of a harsher requirement, but abstentions by members present in person or represented shall not prevent the adoption by the European Council of acts which require unanimity (Article 235(1) of the Treaty on the Functioning of the European Union; TFUE).
Consensus can seem softer, since it can generally denote both unanimity and ‘the judgment arrived at by most of those concerned’. But as far as I understand, consensus is interpreted as the absence of specific opposition, which makes it practically equal to the definition of unanimity above.
The Lisbon Treaty employs both terms in conjunction with the European Council.
My preliminary feeling is that the differences mainly concern nuances, with consensus seeking seen as a general approach to reach mutual understanding, whereas unanimity denotes more formal situations (acts), where explicit abstentions can pave the way for decisions.
People wiser than me have delved into these questions, so I am grateful for viewpoints from readers.
In the following posts we are going to look at how the terms consensus and unanimous (by unanimity) have been employed in the Lisbon Treaty. Are there obvious differences?
Ralf Grahn
One of the tasks of the new President of the European Council would be to facilitate cohesion and consensus within the European Council.
***
Consensus
In the Treaty of Lisbon, Article 15(4) of the amended Treaty on European Union (TEU) presents the main rule for decision-making:
Article 15(4) (Lisbon Treaty)
4. Except where the Treaties provide otherwise, decisions of the European Council shall be taken by consensus.
(OJEU 9.5.2008 C 115/23)
***
Consensus or unanimity?
Is there a real difference between consensus and unanimity? Unanimity may evoke feelings of a harsher requirement, but abstentions by members present in person or represented shall not prevent the adoption by the European Council of acts which require unanimity (Article 235(1) of the Treaty on the Functioning of the European Union; TFUE).
Consensus can seem softer, since it can generally denote both unanimity and ‘the judgment arrived at by most of those concerned’. But as far as I understand, consensus is interpreted as the absence of specific opposition, which makes it practically equal to the definition of unanimity above.
The Lisbon Treaty employs both terms in conjunction with the European Council.
My preliminary feeling is that the differences mainly concern nuances, with consensus seeking seen as a general approach to reach mutual understanding, whereas unanimity denotes more formal situations (acts), where explicit abstentions can pave the way for decisions.
People wiser than me have delved into these questions, so I am grateful for viewpoints from readers.
In the following posts we are going to look at how the terms consensus and unanimous (by unanimity) have been employed in the Lisbon Treaty. Are there obvious differences?
Ralf Grahn
Monday, 2 March 2009
European Parliament: Allocation of seats in the Chamber
The Conference of Presidents decides on the allocation of seats among the political groups and the non-attached members. In addition seats are needed for the Commission and Council representatives.
The authorising provision is Rule 32 of the European Parliament’s Rules of Procedure (16th edition, October 2008):
Rule 32 Allocation of seats in the Chamber
The Conference of Presidents shall decide how seats in the Chamber are to be allocated among the political groups, the non-attached Members and the institutions of the European Union.
***
Search results
I have tried to test the accessibility of information about the internal life of the European Parliament through its own web pages.
I managed to find a European Parliament web page promising a link to the seating arrangements, but it turned out to be an error page.
The customary lack of accessible information about the decisions of internal bodies of the EP continued with regard to the Conference of Presidents in general and concerning the allocation of seats.
Ralf Grahn
The authorising provision is Rule 32 of the European Parliament’s Rules of Procedure (16th edition, October 2008):
Rule 32 Allocation of seats in the Chamber
The Conference of Presidents shall decide how seats in the Chamber are to be allocated among the political groups, the non-attached Members and the institutions of the European Union.
***
Search results
I have tried to test the accessibility of information about the internal life of the European Parliament through its own web pages.
I managed to find a European Parliament web page promising a link to the seating arrangements, but it turned out to be an error page.
The customary lack of accessible information about the decisions of internal bodies of the EP continued with regard to the Conference of Presidents in general and concerning the allocation of seats.
Ralf Grahn
Friday, 31 October 2008
European Central Bank IIa: Article III-79 draft Constitution
The European System of Central Banks (ESCB) and the European Central Bank (ECB) were part of the all-encompassing draft Treaty establishing a Constitution for Europe.
But did the European Convention propose any material or stylistic change to the existing provisions?
We look at the contents of the institutional basics in draft Constitution Article III-79.
***
Article III-79 of the draft Constitution, proposed by the European Convention, corresponds with Article 107 of the Treaty establishing the European Community (TEC), and it is located in Part III ‘The policies and functioning of the Union’, Title III ‘Internal policies and action’, Chapter II ‘Economic and monetary policy’, Section 2 ‘Monetary policy’.
Article III-79 draft Treaty establishing a Constitution for Europe is found in OJ 18.7.2003 C 169/42─43:
Article III-79 Draft Constitution
1. The European System of Central Banks shall be composed of the European Central Bank and of the national central banks.
2. The European Central Bank shall have legal personality.
3. The European System of Central Banks shall be governed by the decision-making bodies of the European Central Bank, which shall be the Governing Council and the Executive Board.
4. The Statute of the European System of Central Banks is laid down in the Protocol on the Statute of the European System of Central Banks and the European Central Bank.
5. Articles 5.1, 5.2, 5.3, 17, 18, 19.1, 22, 23, 24, 26, 32.2, 32.3, 32.4, 32.6, 33.1(a) and 36 of the Statute of the European System of Central Banks and the European Central Bank may be amended by European laws:
(a) either on a proposal from the Commission after consultation of the European Central Bank;
(b) or on a recommendation from the European Central Bank after consultation of the Commission.
6. The Council of Ministers shall adopt the European regulations and decisions laying down the measures referred to in Articles 4, 5.4, 19.2, 20, 28.1, 29.2, 30.4 and 34.3 of the Statute of the System of European Central Banks and the European Central Bank. It shall act after consulting the European Parliament:
(a) either on a proposal from the Commission after consulting the European Central Bank;
(b) or on a recommendation from the European Central Bank after consulting the Commission.
***
Texts compared
The following differences can be noted between the current Article 107 TEC and Article III-79 draft Constitution:
The draft Constitution spells out the acronyms ESCB and ECB in full, for ease of reading.
In paragraph 4, the draft Constitution defined more exactly in which Protocol the ESCB Statute lay hidden; namely ‘the Protocol on the Statute of the European System of Central Banks and the European Central Bank’.
In paragraph 5, the simplified revision of certain provisions of the ESCB Statute referred to the existing Articles. This left the detailed work to the coming intergovernmental conference, if changes to the Statute were to be made. The Convention, preoccupied by the main institutional building-blocks of the European Union, left only a rudimentary collection of eight draft protocols and declarations in all.
The legal instruments to be used were defined as European laws. The two-pronged approach, either a recommendation from the ECB or a proposal from the Commission, was maintained, although they were mentioned in reverse order. No mention was made of the European Parliament, whereas the assent of the EP is required currently. On the other hand, paragraph 5 did not say that the Statute amendments were to be adopted by the Council (alone).
Was it a slip to drop the words ‘by the Council’, or did the Convention really mean to introduce the ordinary legislative procedure (European laws, with no qualification) for these enumerated simplified changes to the ESCB Statute?
On the other hand, although the potential scope for changes looked insignificant, when we studied Article 107(5) TEC, the ESCB Statute is, in principle, a treaty level document, so any exemption to normal treaty amending procedures (IGC and ratifications) might be seen as a serious matter.
The more important complementary legislation in paragraph 6 was re-written in the same manner as the preceding paragraph, but here the European regulations and decisions were to be adopted by the Council of Ministers, after consulting the European Parliament (as currently).
***
The next post is going to look at some legal materials concerning the European Convention proposal. With luck, we might even find an answer to the baffling legislative ‘minutiae’ mentioned above.
Ralf Grahn
But did the European Convention propose any material or stylistic change to the existing provisions?
We look at the contents of the institutional basics in draft Constitution Article III-79.
***
Article III-79 of the draft Constitution, proposed by the European Convention, corresponds with Article 107 of the Treaty establishing the European Community (TEC), and it is located in Part III ‘The policies and functioning of the Union’, Title III ‘Internal policies and action’, Chapter II ‘Economic and monetary policy’, Section 2 ‘Monetary policy’.
Article III-79 draft Treaty establishing a Constitution for Europe is found in OJ 18.7.2003 C 169/42─43:
Article III-79 Draft Constitution
1. The European System of Central Banks shall be composed of the European Central Bank and of the national central banks.
2. The European Central Bank shall have legal personality.
3. The European System of Central Banks shall be governed by the decision-making bodies of the European Central Bank, which shall be the Governing Council and the Executive Board.
4. The Statute of the European System of Central Banks is laid down in the Protocol on the Statute of the European System of Central Banks and the European Central Bank.
5. Articles 5.1, 5.2, 5.3, 17, 18, 19.1, 22, 23, 24, 26, 32.2, 32.3, 32.4, 32.6, 33.1(a) and 36 of the Statute of the European System of Central Banks and the European Central Bank may be amended by European laws:
(a) either on a proposal from the Commission after consultation of the European Central Bank;
(b) or on a recommendation from the European Central Bank after consultation of the Commission.
6. The Council of Ministers shall adopt the European regulations and decisions laying down the measures referred to in Articles 4, 5.4, 19.2, 20, 28.1, 29.2, 30.4 and 34.3 of the Statute of the System of European Central Banks and the European Central Bank. It shall act after consulting the European Parliament:
(a) either on a proposal from the Commission after consulting the European Central Bank;
(b) or on a recommendation from the European Central Bank after consulting the Commission.
***
Texts compared
The following differences can be noted between the current Article 107 TEC and Article III-79 draft Constitution:
The draft Constitution spells out the acronyms ESCB and ECB in full, for ease of reading.
In paragraph 4, the draft Constitution defined more exactly in which Protocol the ESCB Statute lay hidden; namely ‘the Protocol on the Statute of the European System of Central Banks and the European Central Bank’.
In paragraph 5, the simplified revision of certain provisions of the ESCB Statute referred to the existing Articles. This left the detailed work to the coming intergovernmental conference, if changes to the Statute were to be made. The Convention, preoccupied by the main institutional building-blocks of the European Union, left only a rudimentary collection of eight draft protocols and declarations in all.
The legal instruments to be used were defined as European laws. The two-pronged approach, either a recommendation from the ECB or a proposal from the Commission, was maintained, although they were mentioned in reverse order. No mention was made of the European Parliament, whereas the assent of the EP is required currently. On the other hand, paragraph 5 did not say that the Statute amendments were to be adopted by the Council (alone).
Was it a slip to drop the words ‘by the Council’, or did the Convention really mean to introduce the ordinary legislative procedure (European laws, with no qualification) for these enumerated simplified changes to the ESCB Statute?
On the other hand, although the potential scope for changes looked insignificant, when we studied Article 107(5) TEC, the ESCB Statute is, in principle, a treaty level document, so any exemption to normal treaty amending procedures (IGC and ratifications) might be seen as a serious matter.
The more important complementary legislation in paragraph 6 was re-written in the same manner as the preceding paragraph, but here the European regulations and decisions were to be adopted by the Council of Ministers, after consulting the European Parliament (as currently).
***
The next post is going to look at some legal materials concerning the European Convention proposal. With luck, we might even find an answer to the baffling legislative ‘minutiae’ mentioned above.
Ralf Grahn
Monday, 26 May 2008
EU TFEU: Competition law: Anti-competitive agreements
The Constitutional Treaty would have offered the citizens of the European Union an internal market where competition is free and undistorted. The EU Treaty of Lisbon does not mention free and undistorted competition among the objectives of the European Union.
Therefore, most of the discussion about EU competition law in the light of the Lisbon Treaty has centred upon the symbolic downgrading of competition, whereas the unchanged substantive provisions have generated sparse comment.
The first competition Article deals with anti-competitive agreements between firms.
***
We enter a new Title, Chapter and Section in order to look at competition rules in the EU Treaty of Lisbon.
Article 101 of the Treaty on the Functioning of the European Union (TFEU) is found in the consolidated version 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 115/88–89:
Part Three ‘Policies and internal actions of the Union’
Title VII Common rules on competition, taxation and approximation of laws
Chapter 1 Rules on competition
Section 1 Rules applying to undertakings
Article 101 TFEU
(ex Article 81 TEC)
1. The following shall be prohibited as incompatible with the internal market: all agreements between undertakings, decisions by associations of undertakings and concerted practices which may affect trade between Member States and which have as their object or effect the prevention, restriction or distortion of competition within the internal market, and in particular those which:
(a) directly or indirectly fix purchase or selling prices or any other trading conditions;
(b) limit or control production, markets, technical development, or investment;
(c) share markets or sources of supply;
(d) apply dissimilar conditions to equivalent transactions with other trading parties, thereby placing them at a competitive disadvantage;
(e) make the conclusion of contracts subject to acceptance by the other parties of supplementary obligations which, by their nature or according to commercial usage, have no connection with the subject of such contracts.
2. Any agreements or decisions prohibited pursuant to this Article shall be automatically void.
3. The provisions of paragraph 1 may, however, be declared inapplicable in the case of:
— any agreement or category of agreements between undertakings,
— any decision or category of decisions by associations of undertakings,
— any concerted practice or category of concerted practices,
which contributes to improving the production or distribution of goods or to promoting technical or economic progress, while allowing consumers a fair share of the resulting benefit, and which does not:
(a) impose on the undertakings concerned restrictions which are not indispensable to the attainment of these objectives;
(b) afford such undertakings the possibility of eliminating competition in respect of a substantial part of the products in question.
***
In Article 2, point 75 of the Treaty of Lisbon (ToL) the intergovernmental conference (IGC 2007) laid out the specific amendments to Article 80 TEC and in point 76 Article 85 TEC was amended. Thus, no specific amendments were made to Article 81 TEC (OJ 17.12.2007 C 306/68).
***
The TFEU table of equivalences tells us that Article 81 TEC first became Article 81 TFEU (ToL), but later renumbered Article 101 TFEU in the consolidated version (OJ 17.12.2007 C 306/211).
***
The current Article 81 of the Treaty establishing the European Community (TEC) is found under Title VI ‘Common rules on competition, taxation and approximation of laws’, Chapter 1 ‘Rules on competition’, Section 1 ‘Rules applying to undertakings’, in the latest consolidated version of the treaties in force (OJ 29.12.2006 C 321 E/73–74).
The only change made by Article 101 TFEU was to replace the words ‘common market’ by ‘internal market’ twice in the first paragraph, according to horizontal amendment 2(g). Cf. above and OJ 17.12.2007 C 306/41.
Therefore, Article 81 TEC is not reproduced here.
***
For the sake of a systematic comparison, we look at the Article during the previous treaty reform stages.
First, we turn to the European Convention, which located the provisions on competition in Part III ‘The policies and functioning of the Union’, Title III ‘Internal policies and action’, Chapter I ‘Internal market’, Section 5 ‘Rules on competition’, with Subsection 1 ‘Rules applying to undertakings’.
In Article III-50 of the draft Treaty establishing a Constitution for Europe the words ‘internal market’ were used in the first paragraph instead of ‘common market’. The third paragraph dropped the words ‘The provisions of’, but otherwise the provision was exactly the same as the future Article 101 TFEU (OJ 18.7.2003 C 169/35).
***
The location and wording of Article III-161 of the Treaty establishing a Constitution for Europe was the same as for the corresponding provision of the draft (OJ 16.12.2004 C 310/68–69).
The IGC 2007 did not bother to delete the words ‘The provisions of’ at the beginning of the third paragraph, but otherwise the Constitutional Treaty and Article 101 TFEU are identical.
***
We have seen that Article 101 TFEU is almost exactly the same as the current Article 81 TEC, the only difference being the systematic use of ‘internal market’ instead of the older expression ‘common market’.
But, this picture would be incomplete if we did not venture outside the wording of the Article.
First, according to Article 3(1)(b) TFEU the EU has exclusive competence in ‘the establishing of the competition rules necessary for the functioning of the internal market’.
Second, we mention the revised objectives of the European Union. According to the Lisbon Treaty version of Article 3(3) TEU:
“The Union shall establish an internal market.”
The current Article 3(1)(g) TEC ‘system ensuring that competition in the internal market is not distorted’ was deleted from the objectives of the European Union. Having satisfied the French demands to make competition not an objective, but a means, the governments of the member states agreed on a Protocol (No 27) on the internal market and competition (OJ 9.5.2008 C 115/309):
PROTOCOL (No 27)
ON THE INTERNAL MARKET AND COMPETITION
THE HIGH CONTRACTING PARTIES,
CONSIDERING that the internal market as set out in Article 3 of the Treaty on European Union includes a system ensuring that competition is not distorted,
HAVE AGREED that:
To this end, the Union shall, if necessary, take action under the provisions of the Treaties, including under Article 352 of the Treaty on the Functioning of the European Union.
This protocol shall be annexed to the Treaty on European Union and to the Treaty on the Functioning of the European Union.
***
In principle, the IGC 2007 followed the agreements of the IGC 2004, but Annex 1 of the IGC 2007 Mandate (Council document 11218/07), point 3 (page 11) contained the wording of Article 2 about the internal market without the words ‘where competition is free and undistorted’. The text of the draft protocol is on the same page.
The Council’s legal service gave the following opinion about the scope of Article 308 of the EC Treaty (the ‘flexibility clause’), dated 22 June 2007 (Council document 11198/07):
1) It results from the practice of the Institutions that, for the implementation of Article 308 of the EC Treaty ("flexibility clause"), the reference to "the objectives of the Community" has been interpreted widely by the Institutions, in order to cover all purposes and objectives coming within the general framework of the Treaty, and not only to cover those listed in Article 3. A recent example of this practice is the adoption of the Regulation establishing the Agency on Fundamental Rights(1). This corresponds to the case law of the Court of Justice(2): the Court of Justice has said that Article 235 of the EC Treaty (now Article 308) "cannot serve as a basis for widening the scope of Community powers beyond the general framework created by the provisions of the Treaty as a whole and, in particular, by those that define the tasks and the activities of the Community".
2) The fact that, in a future Treaty, Article 3 listing the objectives of the Union would not contain a specific reference to "a system ensuring that competition in the internal market is not distorted" would not, therefore, prevent the EU legislator to act in order:
− to "establish an internal market" (future Article 3, paragraph 3), and
− that the activities of the Union "shall include (…) the adoption of an economic policy which is based (…) on the internal market (…) and conducted in accordance with the principle of an open market economy with free competition" (future Article 4).
3) The future IGC may deem it appropriate, for reasons of transparency, to accompany the text of the future Treaty by a Declaration stating that "with regard to the establishment of the internal market as set out in article 3 TEU, the Conference confirms that the Union will, if necessary, take action under Article 308 to ensure that competition is not distorted".
4) The future IGC might also choose to add a Protocol to the future Treaty, in order to confirm the above. Such a Protocol would be in conformity with the Treaty but legally superfluous.
The footnotes:
(1) Regulation No 168/2007 of 15 February 2007, OJ L53, 22.2.2007, p. 1.
(2) See Opinion of the Court of Justice of 23 March 1996, Opinion 2/94 [1996] ECR, p. I-1759.
***
What has been said about Article 101 TFEU?
United Kingdom
Professor Steve Peers covered the Treaty of Lisbon in a number of Statewatch Analyses. ‘EU Reform Treaty Analysis no. 3.3: Revised text of Part Three, Titles I to VI of the Treaty establishing the European Community (TEC): Internal Market and competition’ (Version 2, 23 October 2007) includes the current Title VI Common rules on competition, taxation and approximation of laws.
Peers highlighted the amendment to Article 81 TEC and TFEU (ToL), to be renumbered Article 101 TFEU in the consolidated version, without comment (page 24).
The analysis 3.3 and other useful Statewatch analyses are available through:
http://www.statewatch.org/euconstitution.htm
***
The Foreign and Commonwealth Office (FCO) offers a convenient source of brief annotations on Lisbon Treaty amendments in ‘A comparative table of the current EC and EU treaties as amended by the Treaty of Lisbon’ (Command Paper 7311, published 21 January 2008). It offers the following comment on Article 101 TFEU, Article 81 TFEU (ToL) in the original Lisbon Treaty (page 11):
“Unchanged from Article 81 TEC.”
The FCO comparative table is available at:
http://www.official-documents.gov.uk/document/cm73/7311/7311.asp
***
The UK House of Commons Library Research Paper 07/86 ‘The Treaty of Lisbon: amendments to the Treaty establishing the European Community’ (published 6 December 2007) discussed competition on page 57 to 60, not without doubts being expressed with regard to the abolition of free and undistorted competition from among the EU’s objectives.
The Library Research Paper 07/86 is available at:
http://www.parliament.uk/commons/lib/research/rp2007/rp07-086.pdf
***
The House of Lords European Union Committee report ‘The Treaty of Lisbon: an impact assessment, Volume I: Report’ (HL Paper 62-I, published 13 March 2008) discussed the internal market and competition on pages 218 and 219.
The main discussion centred around concerns about the removal of ‘free and undistorted competition’ (according to Article I-3(2) of the Constitutional Treaty objectives), but the Committee’s conclusion was the following:
“9.18. We would be concerned if any possible symbolic downgrading were translated into efforts to depart from the principles of free competition that have formed the cornerstone of the internal market. However, Article 51 of the TEU gives equal weight to the Treaty Articles and Protocols and Articles 81–83 of the TEC will remain the same as Articles 101–103 of the TFEU. Therefore, the change does not appear to be significant.”
The report is accessible at:
http://www.publications.parliament.uk/pa/ld200708/ldselect/ldeucom/62/62.pdf
***
Sweden
The consultation paper of the government of Sweden, ‘Lissabonfördraget; Statsrådsberedningen, Departementsserien (Ds), Ds 2007:48’ published 20 December 2007, deals with the internal market on pages 261 to 269, ’22.1 Inre marknaden’. On page 264 the consultation paper describes the Protocol on the internal market and competition (Protokollet om den inre marknaden och konkurrens), and it refers to the opinion of the Council’s legal service (document 11198/07).
The consultation paper ’Lissabonfördraget’ is available at:
http://www.regeringen.se/content/1/c6/09/49/81/107aa077.pdf
***
Finland
The Finnish ratification bill, ‘Hallituksen esitys Eduskunnalle Euroopan unionista tehdyn sopimuksen ja Euroopan yhteisön perustamissopimuksen muuttamisesta tehdyn Lissabonin sopimuksen hyväksymisestä ja laiksi sen lainsäädännön alaan kuuluvien määräysten voimaansaattamisesta’ (HE 23/2008 vp), includes only a short comment on the unchanged nature of Article 81 TFEU (ToL), renumbered Article 101 TFEU (on page 207), but mentions competition among the EU objectives on page 19:
”Perustuslakisopimukseen verrattuna unionin tavoitteita koskevasta määräyksestä on poistettu viittaus siihen, että kilpailu unionin sisämarkkinoilla on vapaata ja vääristymätöntä. SEUT 2 b artiklassa sisämarkkinoiden toimintaa varten tarvittavien kilpailusääntöjen vahvistaminen määritellään kuitenkin jatkossakin unionin yksinomaiseen toimivaltaan kuuluvaksi. Tähän muutokseen liittyen sopimukseen on liitetty kilpailua ja sisämarkkinoita koskeva pöytäkirja, jossa sopimuspuolet katsovat, että SEU 2 artiklassa määritelty tavoite sisämarkkinoiden luomisesta käsittää järjestelmän, jolla taataan, ettei kilpailu vääristy. Sopimuspuolet sopivat, että unioni toteuttaa toimenpiteitä tämän tavoitteen toteuttamiseksi.”
More or less the same factual and non-committal remarks are made on page 132, when Article 2 TEU (ToL), renumbered Article 3 TEU, is dealt with.
The Finnish ratification bill is available at:
http://www.finlex.fi/fi/esitykset/he/2008/20080023.pdf
The Swedish language version of the ratification bill ‘Regeringens proposition till Riksdagen med förslag om godkännande av Lissabonfördraget om ändring av fördraget om Europeiska unionen och fördraget om upprättandet av Europeiska gemenskapen och till lag om sättande i kraft av de bestämmelser i fördraget som hör till området för lagstiftningen’ (RP 23/2008 rd), offers the same brief observation about Article 81 TFEU (ToL), the future Article 101 TFEU, on page 209.
The remarks about the role of competition among the objectives of the EU is on page 19:
”Jämfört med det konstitutionella fördraget har omnämnandet av en inre marknad där det råder fri och icke snedvriden konkurrens strukits från bestämmelsen om unionens mål. Enligt artikel 3 i EUF-fördraget ska unionen dock även i fortsättningen ha exklusiv befogenhet när det gäller fastställandet av de konkurrensregler som är nödvändiga för den inre marknadens funktion. I anslutning till denna ändring åtföljs fördraget av ett protokoll om den inre marknaden och konkurrens där de fördragsslutande parterna beaktar att den inre marknaden enligt definitionen i artikel 2 i EU-fördraget innefattar en ordning som säkerställer att konkurrensen inte snedvrids.
De fördragsslutande parterna enas om att unionen ska vidta åtgärder för detta ändamål.”
The description on page 132 of the Finnish version is found on page 135 of the Swedish one.
The ratification bill in Swedish can be accessed at:
http://www.finlex.fi/sv/esitykset/he/2008/20080023.pdf
Ralf Grahn
Therefore, most of the discussion about EU competition law in the light of the Lisbon Treaty has centred upon the symbolic downgrading of competition, whereas the unchanged substantive provisions have generated sparse comment.
The first competition Article deals with anti-competitive agreements between firms.
***
We enter a new Title, Chapter and Section in order to look at competition rules in the EU Treaty of Lisbon.
Article 101 of the Treaty on the Functioning of the European Union (TFEU) is found in the consolidated version 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 115/88–89:
Part Three ‘Policies and internal actions of the Union’
Title VII Common rules on competition, taxation and approximation of laws
Chapter 1 Rules on competition
Section 1 Rules applying to undertakings
Article 101 TFEU
(ex Article 81 TEC)
1. The following shall be prohibited as incompatible with the internal market: all agreements between undertakings, decisions by associations of undertakings and concerted practices which may affect trade between Member States and which have as their object or effect the prevention, restriction or distortion of competition within the internal market, and in particular those which:
(a) directly or indirectly fix purchase or selling prices or any other trading conditions;
(b) limit or control production, markets, technical development, or investment;
(c) share markets or sources of supply;
(d) apply dissimilar conditions to equivalent transactions with other trading parties, thereby placing them at a competitive disadvantage;
(e) make the conclusion of contracts subject to acceptance by the other parties of supplementary obligations which, by their nature or according to commercial usage, have no connection with the subject of such contracts.
2. Any agreements or decisions prohibited pursuant to this Article shall be automatically void.
3. The provisions of paragraph 1 may, however, be declared inapplicable in the case of:
— any agreement or category of agreements between undertakings,
— any decision or category of decisions by associations of undertakings,
— any concerted practice or category of concerted practices,
which contributes to improving the production or distribution of goods or to promoting technical or economic progress, while allowing consumers a fair share of the resulting benefit, and which does not:
(a) impose on the undertakings concerned restrictions which are not indispensable to the attainment of these objectives;
(b) afford such undertakings the possibility of eliminating competition in respect of a substantial part of the products in question.
***
In Article 2, point 75 of the Treaty of Lisbon (ToL) the intergovernmental conference (IGC 2007) laid out the specific amendments to Article 80 TEC and in point 76 Article 85 TEC was amended. Thus, no specific amendments were made to Article 81 TEC (OJ 17.12.2007 C 306/68).
***
The TFEU table of equivalences tells us that Article 81 TEC first became Article 81 TFEU (ToL), but later renumbered Article 101 TFEU in the consolidated version (OJ 17.12.2007 C 306/211).
***
The current Article 81 of the Treaty establishing the European Community (TEC) is found under Title VI ‘Common rules on competition, taxation and approximation of laws’, Chapter 1 ‘Rules on competition’, Section 1 ‘Rules applying to undertakings’, in the latest consolidated version of the treaties in force (OJ 29.12.2006 C 321 E/73–74).
The only change made by Article 101 TFEU was to replace the words ‘common market’ by ‘internal market’ twice in the first paragraph, according to horizontal amendment 2(g). Cf. above and OJ 17.12.2007 C 306/41.
Therefore, Article 81 TEC is not reproduced here.
***
For the sake of a systematic comparison, we look at the Article during the previous treaty reform stages.
First, we turn to the European Convention, which located the provisions on competition in Part III ‘The policies and functioning of the Union’, Title III ‘Internal policies and action’, Chapter I ‘Internal market’, Section 5 ‘Rules on competition’, with Subsection 1 ‘Rules applying to undertakings’.
In Article III-50 of the draft Treaty establishing a Constitution for Europe the words ‘internal market’ were used in the first paragraph instead of ‘common market’. The third paragraph dropped the words ‘The provisions of’, but otherwise the provision was exactly the same as the future Article 101 TFEU (OJ 18.7.2003 C 169/35).
***
The location and wording of Article III-161 of the Treaty establishing a Constitution for Europe was the same as for the corresponding provision of the draft (OJ 16.12.2004 C 310/68–69).
The IGC 2007 did not bother to delete the words ‘The provisions of’ at the beginning of the third paragraph, but otherwise the Constitutional Treaty and Article 101 TFEU are identical.
***
We have seen that Article 101 TFEU is almost exactly the same as the current Article 81 TEC, the only difference being the systematic use of ‘internal market’ instead of the older expression ‘common market’.
But, this picture would be incomplete if we did not venture outside the wording of the Article.
First, according to Article 3(1)(b) TFEU the EU has exclusive competence in ‘the establishing of the competition rules necessary for the functioning of the internal market’.
Second, we mention the revised objectives of the European Union. According to the Lisbon Treaty version of Article 3(3) TEU:
“The Union shall establish an internal market.”
The current Article 3(1)(g) TEC ‘system ensuring that competition in the internal market is not distorted’ was deleted from the objectives of the European Union. Having satisfied the French demands to make competition not an objective, but a means, the governments of the member states agreed on a Protocol (No 27) on the internal market and competition (OJ 9.5.2008 C 115/309):
PROTOCOL (No 27)
ON THE INTERNAL MARKET AND COMPETITION
THE HIGH CONTRACTING PARTIES,
CONSIDERING that the internal market as set out in Article 3 of the Treaty on European Union includes a system ensuring that competition is not distorted,
HAVE AGREED that:
To this end, the Union shall, if necessary, take action under the provisions of the Treaties, including under Article 352 of the Treaty on the Functioning of the European Union.
This protocol shall be annexed to the Treaty on European Union and to the Treaty on the Functioning of the European Union.
***
In principle, the IGC 2007 followed the agreements of the IGC 2004, but Annex 1 of the IGC 2007 Mandate (Council document 11218/07), point 3 (page 11) contained the wording of Article 2 about the internal market without the words ‘where competition is free and undistorted’. The text of the draft protocol is on the same page.
The Council’s legal service gave the following opinion about the scope of Article 308 of the EC Treaty (the ‘flexibility clause’), dated 22 June 2007 (Council document 11198/07):
1) It results from the practice of the Institutions that, for the implementation of Article 308 of the EC Treaty ("flexibility clause"), the reference to "the objectives of the Community" has been interpreted widely by the Institutions, in order to cover all purposes and objectives coming within the general framework of the Treaty, and not only to cover those listed in Article 3. A recent example of this practice is the adoption of the Regulation establishing the Agency on Fundamental Rights(1). This corresponds to the case law of the Court of Justice(2): the Court of Justice has said that Article 235 of the EC Treaty (now Article 308) "cannot serve as a basis for widening the scope of Community powers beyond the general framework created by the provisions of the Treaty as a whole and, in particular, by those that define the tasks and the activities of the Community".
2) The fact that, in a future Treaty, Article 3 listing the objectives of the Union would not contain a specific reference to "a system ensuring that competition in the internal market is not distorted" would not, therefore, prevent the EU legislator to act in order:
− to "establish an internal market" (future Article 3, paragraph 3), and
− that the activities of the Union "shall include (…) the adoption of an economic policy which is based (…) on the internal market (…) and conducted in accordance with the principle of an open market economy with free competition" (future Article 4).
3) The future IGC may deem it appropriate, for reasons of transparency, to accompany the text of the future Treaty by a Declaration stating that "with regard to the establishment of the internal market as set out in article 3 TEU, the Conference confirms that the Union will, if necessary, take action under Article 308 to ensure that competition is not distorted".
4) The future IGC might also choose to add a Protocol to the future Treaty, in order to confirm the above. Such a Protocol would be in conformity with the Treaty but legally superfluous.
The footnotes:
(1) Regulation No 168/2007 of 15 February 2007, OJ L53, 22.2.2007, p. 1.
(2) See Opinion of the Court of Justice of 23 March 1996, Opinion 2/94 [1996] ECR, p. I-1759.
***
What has been said about Article 101 TFEU?
United Kingdom
Professor Steve Peers covered the Treaty of Lisbon in a number of Statewatch Analyses. ‘EU Reform Treaty Analysis no. 3.3: Revised text of Part Three, Titles I to VI of the Treaty establishing the European Community (TEC): Internal Market and competition’ (Version 2, 23 October 2007) includes the current Title VI Common rules on competition, taxation and approximation of laws.
Peers highlighted the amendment to Article 81 TEC and TFEU (ToL), to be renumbered Article 101 TFEU in the consolidated version, without comment (page 24).
The analysis 3.3 and other useful Statewatch analyses are available through:
http://www.statewatch.org/euconstitution.htm
***
The Foreign and Commonwealth Office (FCO) offers a convenient source of brief annotations on Lisbon Treaty amendments in ‘A comparative table of the current EC and EU treaties as amended by the Treaty of Lisbon’ (Command Paper 7311, published 21 January 2008). It offers the following comment on Article 101 TFEU, Article 81 TFEU (ToL) in the original Lisbon Treaty (page 11):
“Unchanged from Article 81 TEC.”
The FCO comparative table is available at:
http://www.official-documents.gov.uk/document/cm73/7311/7311.asp
***
The UK House of Commons Library Research Paper 07/86 ‘The Treaty of Lisbon: amendments to the Treaty establishing the European Community’ (published 6 December 2007) discussed competition on page 57 to 60, not without doubts being expressed with regard to the abolition of free and undistorted competition from among the EU’s objectives.
The Library Research Paper 07/86 is available at:
http://www.parliament.uk/commons/lib/research/rp2007/rp07-086.pdf
***
The House of Lords European Union Committee report ‘The Treaty of Lisbon: an impact assessment, Volume I: Report’ (HL Paper 62-I, published 13 March 2008) discussed the internal market and competition on pages 218 and 219.
The main discussion centred around concerns about the removal of ‘free and undistorted competition’ (according to Article I-3(2) of the Constitutional Treaty objectives), but the Committee’s conclusion was the following:
“9.18. We would be concerned if any possible symbolic downgrading were translated into efforts to depart from the principles of free competition that have formed the cornerstone of the internal market. However, Article 51 of the TEU gives equal weight to the Treaty Articles and Protocols and Articles 81–83 of the TEC will remain the same as Articles 101–103 of the TFEU. Therefore, the change does not appear to be significant.”
The report is accessible at:
http://www.publications.parliament.uk/pa/ld200708/ldselect/ldeucom/62/62.pdf
***
Sweden
The consultation paper of the government of Sweden, ‘Lissabonfördraget; Statsrådsberedningen, Departementsserien (Ds), Ds 2007:48’ published 20 December 2007, deals with the internal market on pages 261 to 269, ’22.1 Inre marknaden’. On page 264 the consultation paper describes the Protocol on the internal market and competition (Protokollet om den inre marknaden och konkurrens), and it refers to the opinion of the Council’s legal service (document 11198/07).
The consultation paper ’Lissabonfördraget’ is available at:
http://www.regeringen.se/content/1/c6/09/49/81/107aa077.pdf
***
Finland
The Finnish ratification bill, ‘Hallituksen esitys Eduskunnalle Euroopan unionista tehdyn sopimuksen ja Euroopan yhteisön perustamissopimuksen muuttamisesta tehdyn Lissabonin sopimuksen hyväksymisestä ja laiksi sen lainsäädännön alaan kuuluvien määräysten voimaansaattamisesta’ (HE 23/2008 vp), includes only a short comment on the unchanged nature of Article 81 TFEU (ToL), renumbered Article 101 TFEU (on page 207), but mentions competition among the EU objectives on page 19:
”Perustuslakisopimukseen verrattuna unionin tavoitteita koskevasta määräyksestä on poistettu viittaus siihen, että kilpailu unionin sisämarkkinoilla on vapaata ja vääristymätöntä. SEUT 2 b artiklassa sisämarkkinoiden toimintaa varten tarvittavien kilpailusääntöjen vahvistaminen määritellään kuitenkin jatkossakin unionin yksinomaiseen toimivaltaan kuuluvaksi. Tähän muutokseen liittyen sopimukseen on liitetty kilpailua ja sisämarkkinoita koskeva pöytäkirja, jossa sopimuspuolet katsovat, että SEU 2 artiklassa määritelty tavoite sisämarkkinoiden luomisesta käsittää järjestelmän, jolla taataan, ettei kilpailu vääristy. Sopimuspuolet sopivat, että unioni toteuttaa toimenpiteitä tämän tavoitteen toteuttamiseksi.”
More or less the same factual and non-committal remarks are made on page 132, when Article 2 TEU (ToL), renumbered Article 3 TEU, is dealt with.
The Finnish ratification bill is available at:
http://www.finlex.fi/fi/esitykset/he/2008/20080023.pdf
The Swedish language version of the ratification bill ‘Regeringens proposition till Riksdagen med förslag om godkännande av Lissabonfördraget om ändring av fördraget om Europeiska unionen och fördraget om upprättandet av Europeiska gemenskapen och till lag om sättande i kraft av de bestämmelser i fördraget som hör till området för lagstiftningen’ (RP 23/2008 rd), offers the same brief observation about Article 81 TFEU (ToL), the future Article 101 TFEU, on page 209.
The remarks about the role of competition among the objectives of the EU is on page 19:
”Jämfört med det konstitutionella fördraget har omnämnandet av en inre marknad där det råder fri och icke snedvriden konkurrens strukits från bestämmelsen om unionens mål. Enligt artikel 3 i EUF-fördraget ska unionen dock även i fortsättningen ha exklusiv befogenhet när det gäller fastställandet av de konkurrensregler som är nödvändiga för den inre marknadens funktion. I anslutning till denna ändring åtföljs fördraget av ett protokoll om den inre marknaden och konkurrens där de fördragsslutande parterna beaktar att den inre marknaden enligt definitionen i artikel 2 i EU-fördraget innefattar en ordning som säkerställer att konkurrensen inte snedvrids.
De fördragsslutande parterna enas om att unionen ska vidta åtgärder för detta ändamål.”
The description on page 132 of the Finnish version is found on page 135 of the Swedish one.
The ratification bill in Swedish can be accessed at:
http://www.finlex.fi/sv/esitykset/he/2008/20080023.pdf
Ralf Grahn
Friday, 25 January 2008
EU Treaty of Lisbon: Personal data protection
Internationally, the protection of personal data can be seen as a particular European sensitivity, where balance is sought between concerns for privacy and security. The different approaches between the European Union and the United States of America have led to protracted negotiations on both commercial use and security measures.
Internally, the European Community (EC) introduced common norms on the protection of personal data, binding the member states, generally in Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data, and concerning telecommunications in Directive 97/66/EC, repealed and replaced by Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications).
The Treaty of Maastricht filled a gap concerning protection of personal data held by the EC itself. On the basis of Article 286 TEC a Regulation has been enacted: Regulation (EC) No 45/2001 of the European Parliament and of the Council of 18 December 2000 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data.
The scope of Regulation 45/2001 is restricted to European Community legislation; the intergovernmental pillars, the common foreign and security policy (CFSP) and police and judicial cooperation in criminal matters, remain outside the scope of the Regulation.
***
On the other hand, Article 8 of the Charter of Fundamental Rights of the European Union (OJ 14.12.2007 C 303/4) lays down a general right to protection of personal data:
Article 8
Protection of personal data
1. Everyone has the right to the protection of personal data concerning him or her.
2. Such data must be processed fairly for specified purposes and on the basis of the consent of the
person concerned or some other legitimate basis laid down by law. Everyone has the right of access to data which has been collected concerning him or her, and the right to have it rectified.
3. Compliance with these rules shall be subject to control by an independent authority.
***
The Explanations relating to the Charter of Fundamental Rights give the following background to Article 8 (OJ 14.12.2007 C 303/20):
Explanation on Article 8 — Protection of personal data
This Article has been based on Article 286 of the Treaty establishing the European Community and Directive 95/46/EC of the European Parliament and of the Council on the protection of individuals with regard to the processing of personal data and on the free movement of such data (OJ L 281, 23.11.1995, p. 31) as well as on Article 8 of the ECHR and on the Council of Europe Convention of 28 January 1981 for the Protection of Individuals with regard to Automatic Processing of Personal Data, which has been ratified by all the Member States. Article 286 of the EC Treaty is now replaced by Article 16 of the Treaty on the Functioning of the European Union and Article 39 of the Treaty on European Union. Reference is also made to Regulation (EC) No 45/2001 of the European Parliament and of the Council on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data (OJ L 8, 12.1.2001, p. 1). The above-mentioned Directive and Regulation contain conditions and limitations for the exercise of the right to the protection of personal data.
***
The Treaty of Lisbon introduces a new Article 25a in the Treaty on European Union (TEU) (OJ 17.12.2007 C 306/31):
45) Articles 26 and 27 shall be repealed. The following Articles 25a and 25b shall be inserted, with Article 25b replacing Article 47:
Article 25a
In accordance with Article 16 B of the Treaty on the Functioning of the European Union and by way of derogation from paragraph 2 thereof, the Council shall adopt a decision laying down the rules relating to the protection of individuals with regard to the processing of personal data by the Member States when carrying out activities which fall within the scope of this Chapter, and the rules relating to the free movement of such data. Compliance with these rules shall be subject to the control of independent authorities.
***
Since the proposed new Article 25a refers to Article 16b of the Treaty on the Functioning of the European Union (TFEU), we have to look up Article 16b TFEU, as amended:
29) An Article 16 B shall be inserted, replacing Article 286:
Article 16b TFEU
1. Everyone has the right to the protection of personal data concerning them.
2. The European Parliament and the Council, acting in accordance with the ordinary legislative procedure, shall lay down the rules relating to the protection of individuals with regard to the processing of personal data by Union institutions, bodies, offices and agencies, and by the Member States when carrying out activities which fall within the scope of Union law, and the rules relating to the free movement of such data. Compliance with these rules shall be subject to the control of independent authorities.
The rules adopted on the basis of this Article shall be without prejudice to the specific rules laid down in Article 25a of the Treaty on European Union.
***
Since Article 16b TFEU replaces Article 286 of the Treaty establishing the European Community (TEC), we have to take a look at that:
Article 286 TEC
1. From 1 January 1999, Community acts on the protection of individuals with regard to the
processing of personal data and the free movement of such data shall apply to the institutions and bodies set up by, or on the basis of, this Treaty.
2. Before the date referred to in paragraph 1, the Council, acting in accordance with the procedure referred to in Article 251, shall establish an independent supervisory body responsible for monitoring the application of such Community acts to Community institutions and bodies and shall adopt any other relevant provisions as appropriate.
***
The Convention proposed a unitary legal basis for protection of personal data in the draft Treaty establishing a Constitution for Europe Article I-50 (OJ 18.7.2003 C 169/20):
Article 50
Protection of personal data
1. Everyone has the right to the protection of personal data concerning him or her.
2. A European law shall lay down the rules relating to the protection of individuals with regard to the processing of personal data by Union Institutions, bodies and agencies, and by the Member States when carrying out activities which come under the scope of Union law, and the rules relating to the free movement of such data. Compliance with these rules shall be subject to the control of an independent authority.
***
The Treaty establishing a Constitution for Europe took over the Convention’s proposal almost ‘verbatim’ in Article I-51 (OJ 16.12.2004 C 310/36):
Article I-51
Protection of personal data
1. Everyone has the right to the protection of personal data concerning him or her.
2. European laws or framework laws shall lay down the rules relating to the protection of
individuals with regard to the processing of personal data by Union institutions, bodies, offices and agencies, and by the Member States when carrying out activities which fall within the scope of Union law, and the rules relating to the free movement of such data. Compliance with these rules shall be subject to the control of independent authorities.
***
Annexed to the Constitutional Treaty was joint Declaration (number 10) on Article I-51, which gave an indication of the sensitivities of the member state governments (OJ 16.12.2004 C 310/423):
10. Declaration on Article I-51
The Conference declares that, whenever rules on protection of personal data to be adopted on the basis of Article I-51 could have direct implications for national security, due account will have to be taken of the specific characteristics of the matter. It recalls that the legislation presently applicable (see in particular Directive 95/46/EC) includes specific derogations in this regard.
***
If the Convention and the Constitutional Treaty had a unitary approach, taking into consideration the restrictions implied by Declaration 10, the Lisbon Treaty hollowed out the general provision in accordance with the IGC 2007 Mandate (Council document 11218/07, point 15): There will also be a specific legal basis on personal data protection in the CFSP area. – Footnote 7 added: With regard to the processing of such data by the Member States when carrying out activities which fall within the CFSP and ESDP and the movement of such data.
The specific legal basis for Chapter 2 Specific provisions on the common foreign and security policy, Article 25a TEU in the Reform Treaty follows from the mandate of the intergovernmental conference. The purpose of the new Article seems to be to offer leeway to the Union and member states’ governments in questions related to security.
***
Next time we look at Article 25b TEU.
Ralf Grahn
Internally, the European Community (EC) introduced common norms on the protection of personal data, binding the member states, generally in Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data, and concerning telecommunications in Directive 97/66/EC, repealed and replaced by Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications).
The Treaty of Maastricht filled a gap concerning protection of personal data held by the EC itself. On the basis of Article 286 TEC a Regulation has been enacted: Regulation (EC) No 45/2001 of the European Parliament and of the Council of 18 December 2000 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data.
The scope of Regulation 45/2001 is restricted to European Community legislation; the intergovernmental pillars, the common foreign and security policy (CFSP) and police and judicial cooperation in criminal matters, remain outside the scope of the Regulation.
***
On the other hand, Article 8 of the Charter of Fundamental Rights of the European Union (OJ 14.12.2007 C 303/4) lays down a general right to protection of personal data:
Article 8
Protection of personal data
1. Everyone has the right to the protection of personal data concerning him or her.
2. Such data must be processed fairly for specified purposes and on the basis of the consent of the
person concerned or some other legitimate basis laid down by law. Everyone has the right of access to data which has been collected concerning him or her, and the right to have it rectified.
3. Compliance with these rules shall be subject to control by an independent authority.
***
The Explanations relating to the Charter of Fundamental Rights give the following background to Article 8 (OJ 14.12.2007 C 303/20):
Explanation on Article 8 — Protection of personal data
This Article has been based on Article 286 of the Treaty establishing the European Community and Directive 95/46/EC of the European Parliament and of the Council on the protection of individuals with regard to the processing of personal data and on the free movement of such data (OJ L 281, 23.11.1995, p. 31) as well as on Article 8 of the ECHR and on the Council of Europe Convention of 28 January 1981 for the Protection of Individuals with regard to Automatic Processing of Personal Data, which has been ratified by all the Member States. Article 286 of the EC Treaty is now replaced by Article 16 of the Treaty on the Functioning of the European Union and Article 39 of the Treaty on European Union. Reference is also made to Regulation (EC) No 45/2001 of the European Parliament and of the Council on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data (OJ L 8, 12.1.2001, p. 1). The above-mentioned Directive and Regulation contain conditions and limitations for the exercise of the right to the protection of personal data.
***
The Treaty of Lisbon introduces a new Article 25a in the Treaty on European Union (TEU) (OJ 17.12.2007 C 306/31):
45) Articles 26 and 27 shall be repealed. The following Articles 25a and 25b shall be inserted, with Article 25b replacing Article 47:
Article 25a
In accordance with Article 16 B of the Treaty on the Functioning of the European Union and by way of derogation from paragraph 2 thereof, the Council shall adopt a decision laying down the rules relating to the protection of individuals with regard to the processing of personal data by the Member States when carrying out activities which fall within the scope of this Chapter, and the rules relating to the free movement of such data. Compliance with these rules shall be subject to the control of independent authorities.
***
Since the proposed new Article 25a refers to Article 16b of the Treaty on the Functioning of the European Union (TFEU), we have to look up Article 16b TFEU, as amended:
29) An Article 16 B shall be inserted, replacing Article 286:
Article 16b TFEU
1. Everyone has the right to the protection of personal data concerning them.
2. The European Parliament and the Council, acting in accordance with the ordinary legislative procedure, shall lay down the rules relating to the protection of individuals with regard to the processing of personal data by Union institutions, bodies, offices and agencies, and by the Member States when carrying out activities which fall within the scope of Union law, and the rules relating to the free movement of such data. Compliance with these rules shall be subject to the control of independent authorities.
The rules adopted on the basis of this Article shall be without prejudice to the specific rules laid down in Article 25a of the Treaty on European Union.
***
Since Article 16b TFEU replaces Article 286 of the Treaty establishing the European Community (TEC), we have to take a look at that:
Article 286 TEC
1. From 1 January 1999, Community acts on the protection of individuals with regard to the
processing of personal data and the free movement of such data shall apply to the institutions and bodies set up by, or on the basis of, this Treaty.
2. Before the date referred to in paragraph 1, the Council, acting in accordance with the procedure referred to in Article 251, shall establish an independent supervisory body responsible for monitoring the application of such Community acts to Community institutions and bodies and shall adopt any other relevant provisions as appropriate.
***
The Convention proposed a unitary legal basis for protection of personal data in the draft Treaty establishing a Constitution for Europe Article I-50 (OJ 18.7.2003 C 169/20):
Article 50
Protection of personal data
1. Everyone has the right to the protection of personal data concerning him or her.
2. A European law shall lay down the rules relating to the protection of individuals with regard to the processing of personal data by Union Institutions, bodies and agencies, and by the Member States when carrying out activities which come under the scope of Union law, and the rules relating to the free movement of such data. Compliance with these rules shall be subject to the control of an independent authority.
***
The Treaty establishing a Constitution for Europe took over the Convention’s proposal almost ‘verbatim’ in Article I-51 (OJ 16.12.2004 C 310/36):
Article I-51
Protection of personal data
1. Everyone has the right to the protection of personal data concerning him or her.
2. European laws or framework laws shall lay down the rules relating to the protection of
individuals with regard to the processing of personal data by Union institutions, bodies, offices and agencies, and by the Member States when carrying out activities which fall within the scope of Union law, and the rules relating to the free movement of such data. Compliance with these rules shall be subject to the control of independent authorities.
***
Annexed to the Constitutional Treaty was joint Declaration (number 10) on Article I-51, which gave an indication of the sensitivities of the member state governments (OJ 16.12.2004 C 310/423):
10. Declaration on Article I-51
The Conference declares that, whenever rules on protection of personal data to be adopted on the basis of Article I-51 could have direct implications for national security, due account will have to be taken of the specific characteristics of the matter. It recalls that the legislation presently applicable (see in particular Directive 95/46/EC) includes specific derogations in this regard.
***
If the Convention and the Constitutional Treaty had a unitary approach, taking into consideration the restrictions implied by Declaration 10, the Lisbon Treaty hollowed out the general provision in accordance with the IGC 2007 Mandate (Council document 11218/07, point 15): There will also be a specific legal basis on personal data protection in the CFSP area. – Footnote 7 added: With regard to the processing of such data by the Member States when carrying out activities which fall within the CFSP and ESDP and the movement of such data.
The specific legal basis for Chapter 2 Specific provisions on the common foreign and security policy, Article 25a TEU in the Reform Treaty follows from the mandate of the intergovernmental conference. The purpose of the new Article seems to be to offer leeway to the Union and member states’ governments in questions related to security.
***
Next time we look at Article 25b TEU.
Ralf Grahn
Tuesday, 15 January 2008
EU Treaty of Lisbon: Geographical or thematic CFSP decisions
EU sanctions against terrorists, rogue states and their leaders can be laid down in Council common positions. The Lisbon Treaty retains this instrument in effect, but uses the term decisions.
Presently, the Council of the European Union can adopt common positions within the common foreign and security policy (CFSP). The common positions define the Union’s approach to a particular matter of a geographical or thematic nature. The Member States shall conduct their own policies in conformity with the common positions.
The Lisbon Treaty amends the existing Treaty on European Union (TEU) slightly, but the end result looks a lot like the Constitutional Treaty, even if you have to compare the different texts to find out.
***
The existing Treaty on European Union (TEU; latest consolidated version OJ 29.12.C 321) Article 15 states:
“Article 15
The Council shall adopt common positions. Common positions shall define the approach of the Union to a particular matter of a geographical or thematic nature. Member States shall ensure that their national policies conform to the common positions.”
***
The Convention made the ‘common positions’ into ‘European decisions’, but did not substantially alter the text in what became Article III-199 of the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169). The Constitutional Treaty took over this text, in Article III-298 (OJ 16.12.2004 C 310):
“Article III-298
The Council shall adopt European decisions which shall define the approach of the Union to a particular matter of a geographical or thematic nature. Member States shall ensure that their national policies conform to the positions of the Union.”
***
The Treaty of Lisbon amends the text of the existing Article 15 TEU by abolishing the ‘common positions’ in favour of ‘decisions’. The wording of Article 15 TEU, after do-it-yourself consolidation, follows:
Article 15
The Council shall adopt decisions which shall define the approach of the Union to a particular matter of a geographical or thematic nature. Member States shall ensure that their national policies conform to the Union positions.”
***
The different stages are fairly identical. Goodbye, ‘common positions’ and goodbye, putative ‘European decisions’; the Lisbon Treaty mentions only ‘decisions’. But because ‘decision’ is such a general term, there will be a practical need to distinguish these decisions from others.
***
And now to the terrorists, rogue states and their leaders; a few practical examples of fresh common positions:
Council Common Position 2007/871/CFSP of 20 December 2007 updating Common Position 2001/931/CFSP on the application of specific measures to combat terrorism and repealing Common Position 2007/448/CFSP
Council Common Position 2007/750/CFSP of 19 November 2007 amending Common Position 2006/318/CFSP renewing restrictive measures against Burma/Myanmar
Council Common Position 2007/762/CFSP of 22 November 2007 on participation by the European Union in the Korean Peninsula Energy Development Organisation (KEDO)
Council Common Position 2007/761/CFSP of 22 November 2007 renewing the restrictive measures imposed against the Côte d’Ivoire
***
It is certainly beyond the powers of the European Union to create saints out of dictators and tyrants, but the pooled resources of the EU countries give Europe some clout to limit the worst excesses against humans unlucky enough to live under oppression.
***
Next time we are going to look at CFSP proposals.
Ralf Grahn
Presently, the Council of the European Union can adopt common positions within the common foreign and security policy (CFSP). The common positions define the Union’s approach to a particular matter of a geographical or thematic nature. The Member States shall conduct their own policies in conformity with the common positions.
The Lisbon Treaty amends the existing Treaty on European Union (TEU) slightly, but the end result looks a lot like the Constitutional Treaty, even if you have to compare the different texts to find out.
***
The existing Treaty on European Union (TEU; latest consolidated version OJ 29.12.C 321) Article 15 states:
“Article 15
The Council shall adopt common positions. Common positions shall define the approach of the Union to a particular matter of a geographical or thematic nature. Member States shall ensure that their national policies conform to the common positions.”
***
The Convention made the ‘common positions’ into ‘European decisions’, but did not substantially alter the text in what became Article III-199 of the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169). The Constitutional Treaty took over this text, in Article III-298 (OJ 16.12.2004 C 310):
“Article III-298
The Council shall adopt European decisions which shall define the approach of the Union to a particular matter of a geographical or thematic nature. Member States shall ensure that their national policies conform to the positions of the Union.”
***
The Treaty of Lisbon amends the text of the existing Article 15 TEU by abolishing the ‘common positions’ in favour of ‘decisions’. The wording of Article 15 TEU, after do-it-yourself consolidation, follows:
Article 15
The Council shall adopt decisions which shall define the approach of the Union to a particular matter of a geographical or thematic nature. Member States shall ensure that their national policies conform to the Union positions.”
***
The different stages are fairly identical. Goodbye, ‘common positions’ and goodbye, putative ‘European decisions’; the Lisbon Treaty mentions only ‘decisions’. But because ‘decision’ is such a general term, there will be a practical need to distinguish these decisions from others.
***
And now to the terrorists, rogue states and their leaders; a few practical examples of fresh common positions:
Council Common Position 2007/871/CFSP of 20 December 2007 updating Common Position 2001/931/CFSP on the application of specific measures to combat terrorism and repealing Common Position 2007/448/CFSP
Council Common Position 2007/750/CFSP of 19 November 2007 amending Common Position 2006/318/CFSP renewing restrictive measures against Burma/Myanmar
Council Common Position 2007/762/CFSP of 22 November 2007 on participation by the European Union in the Korean Peninsula Energy Development Organisation (KEDO)
Council Common Position 2007/761/CFSP of 22 November 2007 renewing the restrictive measures imposed against the Côte d’Ivoire
***
It is certainly beyond the powers of the European Union to create saints out of dictators and tyrants, but the pooled resources of the EU countries give Europe some clout to limit the worst excesses against humans unlucky enough to live under oppression.
***
Next time we are going to look at CFSP proposals.
Ralf Grahn
Saturday, 12 January 2008
EU Treaty of Lisbon: CFSP decisions
Who does what in the common foreign and security policy (CFSP) of the European Union? The Lisbon Treaty builds on the existing Treaty on European Union (TEU), as well as the Convention and the Treaty establishing a Constitution for Europe to define at which level the European Council and the Council decide, and the High Representative and the Member States interact.
***
The existing Article 13 TEU (latest consolidated version OJ 29.12.2006 C 321 E) says:
“Article 13
1. The European Council shall define the principles of and general guidelines for the common foreign and security policy, including for matters with defence implications.
2. The European Council shall decide on common strategies to be implemented by the Union in areas where the Member States have important interests in common.
Common strategies shall set out their objectives, duration and the means to be made available by the Union and the Member States.
3. The Council shall take the decisions necessary for defining and implementing the common foreign and security policy on the basis of the general guidelines defined by the European Council.
The Council shall recommend common strategies to the European Council and shall implement them, in particular by adopting joint actions and common positions.
The Council shall ensure the unity, consistency and effectiveness of action by the Union.”
***
The amending Reform Treaty draws in part on Article III-196 of the Convention, which corresponds with Article III-295 in the Treaty establishing a Constitution for Europe (OJ 16.12.2004 C 310).
***
A few remarks by your glossator:
We see a hierarchy of decision makers and decisions.
The European Council, comprising the Heads of State or Government of the Member States, works at the strategic level. It identifies the strategic interests, determines the objectives and defines the general CFSP guidelines.
At the present time, one general reference document is the European Security Strategy, from December 2003. A new security strategy is being prepared.
In an international crisis, the President of the European Council can convene an extraordinary meeting at short notice.
The Council (Ministers for Foreign Affairs) works on the basis of the general guidelines defined by the European Council to frame the CFSP and to define and to implement it.
The High Representative, who chairs the Foreign Affairs Council, is the main operative. He prepares proposals for the Council, heads the External Action Service and implements the decisions together with the Member States. The Council and the High Representative try to ensure the unity, consistency and effectiveness of Union action.
As far as the strictures of decision making procedures and divergent national interests allow, the European Union is served by a logical ‘pyramid’ of decision makers and decisions.
The CFSP structures are intergovernmental, leaving little scope for democratic scrutiny at the EU level. In spite of the abolishment of the ‘pillar structure’ and the merger of the EC into the EU, the CFSP provisions are found in the TEU, not in the TFEU like the ‘normal’ policy areas.
***
The Treaty of Lisbon (OJ 17.12.2007 C 306) amends Article 13 TEU. The consolidated version of the Article looks like this:
Article 13
1. The European Council shall identify the Union’s strategic interests, determine the objectives of and define general guidelines for the common foreign and security policy, including for matters with defence implications. It shall adopt the necessary decisions.
If international developments so require, the President of the European Council shall convene an extraordinary meeting of the European Council in order to define the strategic lines of the Union’s policy in the face of such developments.
2. The Council shall frame the common foreign and security policy and take the decisions necessary for defining and implementing it on the basis of the general guidelines and strategic lines defined by the European Council.
The Council and the High Representative of the Union for Foreign Affairs and Security Policy shall ensure the unity, consistency and effectiveness of action by the Union.
3. The common foreign and security policy shall be put into effect by the High Representative and by the Member States, using national and Union resources.
***
Next time we are going to take a closer look at the High Representative.
Ralf Grahn
***
The existing Article 13 TEU (latest consolidated version OJ 29.12.2006 C 321 E) says:
“Article 13
1. The European Council shall define the principles of and general guidelines for the common foreign and security policy, including for matters with defence implications.
2. The European Council shall decide on common strategies to be implemented by the Union in areas where the Member States have important interests in common.
Common strategies shall set out their objectives, duration and the means to be made available by the Union and the Member States.
3. The Council shall take the decisions necessary for defining and implementing the common foreign and security policy on the basis of the general guidelines defined by the European Council.
The Council shall recommend common strategies to the European Council and shall implement them, in particular by adopting joint actions and common positions.
The Council shall ensure the unity, consistency and effectiveness of action by the Union.”
***
The amending Reform Treaty draws in part on Article III-196 of the Convention, which corresponds with Article III-295 in the Treaty establishing a Constitution for Europe (OJ 16.12.2004 C 310).
***
A few remarks by your glossator:
We see a hierarchy of decision makers and decisions.
The European Council, comprising the Heads of State or Government of the Member States, works at the strategic level. It identifies the strategic interests, determines the objectives and defines the general CFSP guidelines.
At the present time, one general reference document is the European Security Strategy, from December 2003. A new security strategy is being prepared.
In an international crisis, the President of the European Council can convene an extraordinary meeting at short notice.
The Council (Ministers for Foreign Affairs) works on the basis of the general guidelines defined by the European Council to frame the CFSP and to define and to implement it.
The High Representative, who chairs the Foreign Affairs Council, is the main operative. He prepares proposals for the Council, heads the External Action Service and implements the decisions together with the Member States. The Council and the High Representative try to ensure the unity, consistency and effectiveness of Union action.
As far as the strictures of decision making procedures and divergent national interests allow, the European Union is served by a logical ‘pyramid’ of decision makers and decisions.
The CFSP structures are intergovernmental, leaving little scope for democratic scrutiny at the EU level. In spite of the abolishment of the ‘pillar structure’ and the merger of the EC into the EU, the CFSP provisions are found in the TEU, not in the TFEU like the ‘normal’ policy areas.
***
The Treaty of Lisbon (OJ 17.12.2007 C 306) amends Article 13 TEU. The consolidated version of the Article looks like this:
Article 13
1. The European Council shall identify the Union’s strategic interests, determine the objectives of and define general guidelines for the common foreign and security policy, including for matters with defence implications. It shall adopt the necessary decisions.
If international developments so require, the President of the European Council shall convene an extraordinary meeting of the European Council in order to define the strategic lines of the Union’s policy in the face of such developments.
2. The Council shall frame the common foreign and security policy and take the decisions necessary for defining and implementing it on the basis of the general guidelines and strategic lines defined by the European Council.
The Council and the High Representative of the Union for Foreign Affairs and Security Policy shall ensure the unity, consistency and effectiveness of action by the Union.
3. The common foreign and security policy shall be put into effect by the High Representative and by the Member States, using national and Union resources.
***
Next time we are going to take a closer look at the High Representative.
Ralf Grahn
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