It looks quite harmless: Companies and firms are offered the same freedom of establishment as natural persons within the European Community (European Union).
News and debate tend to focus on (unexpected) change, but the EU’s Treaty of Lisbon is as important for what it preserves, like the equal treatment of commercial companies.
First, we look at the treaty reform cycle from the current Treaty establishing the European Community, via the draft Constitution and the Constitutional Treaty to the Lisbon Treaty. Then, we give a few hints on further reading, which show that seemingly boring and inoffensive provisions are anything but that from the viewpoint of enterprises and tax authorities.
***
When we reach Article 48 of the Treaty establishing the European Community (TEC), we see that the intergovernmental conference (IGC 2007) makes no express amendment in the Treaty of Lisbon (ToL) to what is to become the Treaty on the Functioning of the European Union (TFEU). Cf. Official Journal, OJ 17.12.2007 C 306/55.
***
We find Article 48 TEC in force in the latest consolidated version of the treaties, TEU and TEC, OJ 29.12.2006 C 321 E/61:
Article 48 TEC
Companies or firms formed in accordance with the law of a Member State and having their registered office, central administration or principal place of business within the Community shall, for the purposes of this Chapter, be treated in the same way as natural persons who are nationals of Member States.
‘Companies or firms’ means companies or firms constituted under civil or commercial law, including cooperative societies, and other legal persons governed by public or private law, save for those which are non-profit-making.
***
There is no express amendment and only one horizontal one (‘Community’ replaced by ‘Union’ according to point 2(a)) in the Lisbon Treaty. We check the numbering in the original Lisbon Treaty and the renumbering for the coming consolidated versions, and we add the location of the provision within the treaty for ease of reading. Here is the ‘new’ Article:
Part Three ‘Policies and internal actions of the Union’
Title III (renumbered Title IV) ‘Free movement of persons, services and capital’
Chapter 2 ‘Right of establishment’
Article 48 TFEU (ToL), renumbered Article 54 TFEU
Companies or firms formed in accordance with the law of a Member State and having their registered office, central administration or principal place of business within the Union shall, for the purposes of this Chapter, be treated in the same way as natural persons who are nationals of Member States.
‘Companies or firms’ means companies or firms constituted under civil or commercial law, including cooperative societies, and other legal persons governed by public or private law, save for those which are non-profit-making.
***
The European Convention inserted the word ‘Union’ instead of ‘Community’, and ‘Chapter’ was called ‘Subsection’, but there was no material difference between Article III-27 of the draft Treaty establishing a Constitution for Europe and the current TEC provision, and even one formal difference less as regards the ToL TFEU (OJ 18.7.2003 C 169/32-33).
***
Article III-142 of the Treaty establishing a Constitution for Europe took over the draft text word for word (OJ 16.12.2004 C 310/62).
***
After the anodyne statements above, one could easily believe that freedom of establishment for companies is an inoffensive continuation of the principles concerning humans (natural persons), so a few references to actual tensions may be in order.
For further reading available on the web concerning the freedom of establishment as regards companies and firms, you could turn to Nicole Rothe: Freedom of establishment of legal persons within the European Union: An analysis of the European Court of Justice decision in the Überseering case; Case C-208/00:
https://www.wcl.american.edu/journal/lawrev/53/rothe.pdf?rd=1
KPMG’s Euro Tax Flash Issuue 37, 12 September 2006, comments on ‘ECJ decision in Cadbury Schweppes Case (C-196/04):
http://kpmgbe.lcc.ch/dbfetch/52616e646f6d49561b7f558b02435e7dd48a4524c074812ef9097bad01a90f9f/euro_tax_flash_2006_09_12_2.pdf
Frank Muntendam, of Ernst & Young, commented on the Cadbury Schweppes case ‘The end of CFC legislation in Europe?’:
http://www.ey.com/global/content.nsf/Luxembourg_E/Question:_The_end_of_CFC_legislation_in_Europe
A fresh overview is offered by Federico M. Mucciarelli in ‘Companies’ Emigration and EC Freedom of Establishment (15 October 2007):
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1078407#PaperDownload
Ralf Grahn
Showing posts with label legal person. Show all posts
Showing posts with label legal person. Show all posts
Wednesday, 9 April 2008
Saturday, 2 February 2008
EU Treaty of Lisbon: Legal personality
Much virulent criticism of the Treaty of Lisbon seems to be based on misconception, misconstruction or misrepresentation. Legal personality for the European Union (EU) is one example.
The European Community (EC) already has express legal personality, and the EC has concluded hosts of international treaties and agreements within its powers.
The current state of affairs is described in a UK House of Commons Library Research Paper in the following way (p. 72):
“This means that only the Community, represented by the Commission, currently has rights and obligations under international law. The Commission negotiates international agreements, such as trade and commercial agreements, on behalf of the Community with the authorisation of the Council. Member States decide the negotiating mandate by unanimity or QMV, depending on the policy area in question, and approve any final agreement on the same basis. The EU has no express legal personality at present, but Articles 24 and 38 TEU provide a treaty negotiation procedure on the basis of which treaties have been signed in the name of the EU.”
The Lisbon Treaty abolishes the EC and the pillar structure. The EC is succeeded by the EU. Therefore, legal personality is expressly conferred upon the EU. This can be likened to taking down a partitioning wall, creating a wider space.
The exercise of the European Union’s rights and duties under international law is still subject to the competences (powers) conferred upon the EU by the Treaties. The member states have agreed on a declaration to that effect.
***
We arrive at the Final provisions (Title VI) of the Treaty on European Union, as amended by the Treaty of Lisbon. We can take an introductory look at what the intergovernmental conference (IGC 2007) set out to do according to its Mandate (Council document 11218/07):
“Final Provisions (VI)
16. Title VI (former Title VIII of the existing TEU) will be amended as agreed in the 2004 IGC. There will in particular be an Article on the legal personality of the Union (8), an Article on voluntary withdrawal from the Union and Article 48 will be amended so as to bring together the procedures for revising the Treaties (the ordinary and the two simplified procedures). This Article, in its paragraph on the ordinary revision procedure, will make it clear that the Treaties can be revised to increase or reduce the competences conferred upon the Union. In Article 49, on conditions of eligibility and the procedure for accession to the Union, the reference to the principles will be replaced by a reference to the Union's values and the addition of a commitment to promoting such values, an obligation to notify the European Parliament and national parliaments of an application for accession to the Union and a reference to take into account the conditions of eligibility agreed upon by the European Council (see Annex 1, Title VI). The usual final provision will also be adapted (territorial scope, duration, ratification and authentic texts and translations).(9)”
Footnote 8 added: The IGC will agree on the following Declaration: "The Conference confirms that the fact that the European Union has a legal personality will not in any way authorise the Union to legislate or to act beyond the competences conferred upon it by the Member States in the Treaties."
Footnote 9 stated: Articles 41, 42, 46 and 50 of the TEU will be deleted, Article 47 being placed, as amended in the 2004 IGC, in the CFSP Chapter.
***
The intergovernmental conference (IGC 2007) agreed on the following, mercifully short, provision at the beginning of the new Title VI Final provisions (OJ 17.12.2007 C 306/37):
55) The following new Article 46 A shall be inserted:
Article 46a
The Union shall have legal personality.
***
The nearest antecedent in the existing Treaties is Article 281 of the Treaty establishing the European Community (TEC)(latest consolidated version OJ 29.12.2006 C 321 E/170):
Article 281
The Community shall have legal personality.
***
The Convention proposed the following provision in the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/9):
Article I-6
Legal personality
The Union shall have legal personality.
***
The IGC 2004 agreed on the following provision in the Treaty establishing a Constitution for Europe (OJ 16.12.2004 C 310/13):
Article I-7
Legal personality
The Union shall have legal personality.
***
We can see that the European Community (EC) has legal personality.
The Convention, the Constitutional Treaty and the Lisbon Treaty all confer this explicit legal personality on the European Union.
Since the EC becomes history by being merged into the EU, legal personality follows. See Article 1(3) of the Reform Treaty TEU:
“Article 1(3)
The Union shall be founded on the present Treaty and on the Treaty on the Functioning of the European Union (hereinafter referred to as “the Treaties”). Those two Treaties shall have the same legal value. The Union shall replace and succeed the European Community.”
Only lawyers and official documents seem to have upheld the existing distinction between the EC and the EU. Media, politicians and citizens have subsumed everything under the EU heading a long time ago. Thus, the end result with only the EU should be clearer and easier for citizens.
The refounded EU replaces and succeeds the EC. This includes legal personality.
As a legal person the European Union is a subject of international law, with rights and duties. It can bring international claims, make treaties and conclude agreements and enjoy privileges and immunities from national jurisdictions, within the competences (powers) conferred upon it by the member states.
Ralf Grahn
Source:
House of Commons Library Research Paper 07/80, 22 November 2007: The EU Reform Treaty: amendments to the Treaty on European Union;
http://www.parliament.uk/commons/lib/research/rp2007/rp07-080.pdf
The European Community (EC) already has express legal personality, and the EC has concluded hosts of international treaties and agreements within its powers.
The current state of affairs is described in a UK House of Commons Library Research Paper in the following way (p. 72):
“This means that only the Community, represented by the Commission, currently has rights and obligations under international law. The Commission negotiates international agreements, such as trade and commercial agreements, on behalf of the Community with the authorisation of the Council. Member States decide the negotiating mandate by unanimity or QMV, depending on the policy area in question, and approve any final agreement on the same basis. The EU has no express legal personality at present, but Articles 24 and 38 TEU provide a treaty negotiation procedure on the basis of which treaties have been signed in the name of the EU.”
The Lisbon Treaty abolishes the EC and the pillar structure. The EC is succeeded by the EU. Therefore, legal personality is expressly conferred upon the EU. This can be likened to taking down a partitioning wall, creating a wider space.
The exercise of the European Union’s rights and duties under international law is still subject to the competences (powers) conferred upon the EU by the Treaties. The member states have agreed on a declaration to that effect.
***
We arrive at the Final provisions (Title VI) of the Treaty on European Union, as amended by the Treaty of Lisbon. We can take an introductory look at what the intergovernmental conference (IGC 2007) set out to do according to its Mandate (Council document 11218/07):
“Final Provisions (VI)
16. Title VI (former Title VIII of the existing TEU) will be amended as agreed in the 2004 IGC. There will in particular be an Article on the legal personality of the Union (8), an Article on voluntary withdrawal from the Union and Article 48 will be amended so as to bring together the procedures for revising the Treaties (the ordinary and the two simplified procedures). This Article, in its paragraph on the ordinary revision procedure, will make it clear that the Treaties can be revised to increase or reduce the competences conferred upon the Union. In Article 49, on conditions of eligibility and the procedure for accession to the Union, the reference to the principles will be replaced by a reference to the Union's values and the addition of a commitment to promoting such values, an obligation to notify the European Parliament and national parliaments of an application for accession to the Union and a reference to take into account the conditions of eligibility agreed upon by the European Council (see Annex 1, Title VI). The usual final provision will also be adapted (territorial scope, duration, ratification and authentic texts and translations).(9)”
Footnote 8 added: The IGC will agree on the following Declaration: "The Conference confirms that the fact that the European Union has a legal personality will not in any way authorise the Union to legislate or to act beyond the competences conferred upon it by the Member States in the Treaties."
Footnote 9 stated: Articles 41, 42, 46 and 50 of the TEU will be deleted, Article 47 being placed, as amended in the 2004 IGC, in the CFSP Chapter.
***
The intergovernmental conference (IGC 2007) agreed on the following, mercifully short, provision at the beginning of the new Title VI Final provisions (OJ 17.12.2007 C 306/37):
55) The following new Article 46 A shall be inserted:
Article 46a
The Union shall have legal personality.
***
The nearest antecedent in the existing Treaties is Article 281 of the Treaty establishing the European Community (TEC)(latest consolidated version OJ 29.12.2006 C 321 E/170):
Article 281
The Community shall have legal personality.
***
The Convention proposed the following provision in the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/9):
Article I-6
Legal personality
The Union shall have legal personality.
***
The IGC 2004 agreed on the following provision in the Treaty establishing a Constitution for Europe (OJ 16.12.2004 C 310/13):
Article I-7
Legal personality
The Union shall have legal personality.
***
We can see that the European Community (EC) has legal personality.
The Convention, the Constitutional Treaty and the Lisbon Treaty all confer this explicit legal personality on the European Union.
Since the EC becomes history by being merged into the EU, legal personality follows. See Article 1(3) of the Reform Treaty TEU:
“Article 1(3)
The Union shall be founded on the present Treaty and on the Treaty on the Functioning of the European Union (hereinafter referred to as “the Treaties”). Those two Treaties shall have the same legal value. The Union shall replace and succeed the European Community.”
Only lawyers and official documents seem to have upheld the existing distinction between the EC and the EU. Media, politicians and citizens have subsumed everything under the EU heading a long time ago. Thus, the end result with only the EU should be clearer and easier for citizens.
The refounded EU replaces and succeeds the EC. This includes legal personality.
As a legal person the European Union is a subject of international law, with rights and duties. It can bring international claims, make treaties and conclude agreements and enjoy privileges and immunities from national jurisdictions, within the competences (powers) conferred upon it by the member states.
Ralf Grahn
Source:
House of Commons Library Research Paper 07/80, 22 November 2007: The EU Reform Treaty: amendments to the Treaty on European Union;
http://www.parliament.uk/commons/lib/research/rp2007/rp07-080.pdf
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