The complexity of the European Union appears, when devising the (provisional) agendas of the Council meetings. Not only the national governments, but the national parliaments, require their periods of grace before certain items can be placed on the agenda.
Legislative procedures are time-consuming.
***
Protocol on national parliaments
Protocol (No 9) on the role of national parliaments in the European Union lays down a system of scrutiny for the national parliaments (excerpt):
I. Information for national parliaments of Member States
1. All Commission consultation documents (green and white papers and communications) shall be promptly forwarded to national parliaments of the Member States.
2. Commission proposals for legislation as defined by the Council in accordance with Article 207(3) of the Treaty establishing the European Community, shall be made available in good time so that the government of each Member State may ensure that its own national parliament receives them as appropriate.
3. A six-week period shall elapse between a legislative proposal or a proposal for a measure to be adopted under Title VI of the Treaty on European Union being made available in all languages to the European Parliament and the Council by the Commission and the date when it is placed on a Council agenda for decision either for the adoption of an act or for adoption of a common position pursuant to Article 251 or 252 of the Treaty establishing the European Community, subject to exceptions on grounds of urgency, the reasons for which shall be stated in the act or common position.
***
In other words, the national parliaments dispose of a six week period to make up their mind about a legislative proposal or a proposal relating to police and judicial cooperation in criminal matters.
Under the Lisbon Treaty, this period would be extended to eight weeks (Protocol No 1; Article 4).
***
Council’s Rules of Procedure
The Council agenda has to observe this period. Only a unanimous decision on the grounds of urgency allows for an exception to be made:
Article 3(3) Council’s Rules of Procedure
3. Items relating to the adoption of an act or a common position on a legislative proposal or a proposal for a measure to be adopted under Title VI of the Treaty on European Union (hereinafter referred to as the EU Treaty) shall not be placed on the provisional agenda for a decision until the six-week period provided for in point 3 of the Protocol on the role of national parliaments in the European Union has elapsed.
The Council may unanimously derogate from the six-week period where the entry of an item is subject to the exception on grounds of urgency provided for in point 3 of that Protocol.
Ralf Grahn
Showing posts with label protocol. Show all posts
Showing posts with label protocol. Show all posts
Tuesday, 26 May 2009
Wednesday, 20 May 2009
EU: Free movement Switzerland (Bulgaria & Romania)
The Swiss Confederation is the one EFTA country, which is not a member of the European Economic Area (EEA) ─ as are Iceland, Liechtenstein and Norway ─ so closer relations with the European Union and its member states have been built gradually on the basis of bilateral (and plurilateral) agreements.
The Wikipedia overview article Switzerland and the European Union (latest update 19 May 2009) describes the Swiss Confederation as a virtual member of the EEA or even the EU. (Despite the so called Guillotine Clause, given the importance of referendums in the Swiss constitutional system, the “even the EU” could be seen as an exaggeration.)
***
Accession and free movement
From the point of view of the European Union, the extension of free movement to Switzerland with regard to the latest EU entrants Bulgaria and Romania is now confirmed by the official publication of the relevant documents.
Council Decision
The first document is the formal Council Decision 2009/392/EC of 27 November 2008 on the conclusion, on behalf of the European Community and its Member States, of a Protocol to the Agreement between the European Community and its Member States, of the one part, and the Swiss Confederation, of the other, on the free movement of persons regarding the participation, as contracting parties of the Republic of Bulgaria and Romania pursuant to their accession to the European Union, published in the Official Journal of the European Union (OJEU) 20.5.2009 L 124/51.
***
Protocol
The second document is the Protocol to the Agreement between the European Community and its Member States, of the one part, and the Swiss Confederation, of the other, on the free movement of persons, regarding the participation, as contracting parties of the Republic of Bulgaria and Romania pursuant to their accession to the European Union, published OJEU 20.5.2009 L 124/53.
The Protocol, to be ratified, contains the substantial provisions, including the transitional clauses (limitations).
Ralf Grahn
The Wikipedia overview article Switzerland and the European Union (latest update 19 May 2009) describes the Swiss Confederation as a virtual member of the EEA or even the EU. (Despite the so called Guillotine Clause, given the importance of referendums in the Swiss constitutional system, the “even the EU” could be seen as an exaggeration.)
***
Accession and free movement
From the point of view of the European Union, the extension of free movement to Switzerland with regard to the latest EU entrants Bulgaria and Romania is now confirmed by the official publication of the relevant documents.
Council Decision
The first document is the formal Council Decision 2009/392/EC of 27 November 2008 on the conclusion, on behalf of the European Community and its Member States, of a Protocol to the Agreement between the European Community and its Member States, of the one part, and the Swiss Confederation, of the other, on the free movement of persons regarding the participation, as contracting parties of the Republic of Bulgaria and Romania pursuant to their accession to the European Union, published in the Official Journal of the European Union (OJEU) 20.5.2009 L 124/51.
***
Protocol
The second document is the Protocol to the Agreement between the European Community and its Member States, of the one part, and the Swiss Confederation, of the other, on the free movement of persons, regarding the participation, as contracting parties of the Republic of Bulgaria and Romania pursuant to their accession to the European Union, published OJEU 20.5.2009 L 124/53.
The Protocol, to be ratified, contains the substantial provisions, including the transitional clauses (limitations).
Ralf Grahn
Saturday, 14 February 2009
European Parliament: Privileges and immunities (background)
In some nightmares and some dreams the European Union may be a super-power or even a super-state, but its feet are firmly stuck in public international law. States are members, treaties form the foundations, the European Communities are international organisations and diplomatic relations are maintained inside and out.
***
Diplomatic relations
Do you want to experience the public international law roots of the European Communities and the European Union?
For comparison and before you advance, read the ‘global’ codification of diplomatic law, the Vienna Convention on Diplomatic Relations, available for instance here:
http://untreaty.un.org/ilc/texts/instruments/english/conventions/9_1_1961.pdf
***
Current treaty
The general reference to the privileges and immunities of the European Community is Article 291 of the Treaty establishing the European Community (TEC), in the latest consolidated version of the treaties OJEU 29.12.2006 C 321 E/172:
Article 291 TEC
The Community shall enjoy in the territories of the Member States such privileges and immunities as are necessary for the performance of its tasks, under the conditions laid down in the Protocol of 8 April 1965 on the privileges and immunities of the European Communities. The same shall apply to the European Central Bank, the European Monetary Institute, and the European Investment
Bank.
***
Protocol currently
Annexed to the EC and Euratom treaties we find Protocol (No 36) on the privileges and immunities of the European Communities, OJEU 29.12.2006 C 321 E/318.
***
Lisbon Treaty
Despite the existing add-ons of supranational decision-making and representative democracy somewhat enhanced, the Treaty of Lisbon still stands firmly on the foundations of treaty law and diplomatic relations, far from a federal basic law.
The Treaty of Lisbon would replace the European Community by the European Union and it would drop the historic European Monetary Institute from the text, but the substance of the treaty provision on privileges and immunities is found alive and well in Article 343 of the Treaty on the Functioning of the European Union (TFEU), OJEU 9.5.2008 C 115/194.
In the consolidated Lisbon Treaty the protocol has drawn a new number, and it appears slightly updated as Protocol (No 7) on the privileges and immunities of the European Union (page 266 ff).
If anybody still needs convincing, the newest version of the Protocol still starts with the words ‘The High Contracting Parties’, hardly part of a federal vocabulary.
***
Overview: Privileges and immunities
The Lisbon Treaty may enter into force during the legislative term from 2009 to 2014, but the European Parliament elections between 4 and 7 June 2009 are going to take place under the current Treaty on European Union (TEU) and the Treaty establishing the European Community (TEC).
We continue our presentation of EU electoral law and the status of the European Parliament and its members (MEPs) with themes that seem a bit neglected by the member states and even by the EU institutions.
Ahead of the European elections it feels natural to proceed on the basis of the Protocol in force (although normally this blog dedicates more space to the Lisbon Treaty provisions than to the existing ones).
We start with a brief overview of Protocol (No 36) on the privileges and immunities of the European Communities, OJEU 29.12.2006 C 321 E/318.
The ‘raison d’être’ of the privileges and immunities is functional:
… these Communities and the European Investment Bank shall enjoy in the territories of the Member States such privileges and immunities as are necessary for the performance of their tasks …
Here are the Chapter headings for a cursory glance at the contents:
Chapter I Property, funds, assets and operations of the European Community
Chapter II Communications and laissez-passer
Chapter III Members of the European Parliament
Chapter IV Representatives of the Member States taking part in the work of the institutions of the European Communities
Chapter V Officials and other servants of the European Communities
Chapter VI Privileges and immunities of missions of third countries accredited to the European Communities
Chapter VII General provisions
***
With the European elections in June 2009 in mind, we advance towards the status of the European Parliament and the MEPs in the following posts.
Ralf Grahn
***
Diplomatic relations
Do you want to experience the public international law roots of the European Communities and the European Union?
For comparison and before you advance, read the ‘global’ codification of diplomatic law, the Vienna Convention on Diplomatic Relations, available for instance here:
http://untreaty.un.org/ilc/texts/instruments/english/conventions/9_1_1961.pdf
***
Current treaty
The general reference to the privileges and immunities of the European Community is Article 291 of the Treaty establishing the European Community (TEC), in the latest consolidated version of the treaties OJEU 29.12.2006 C 321 E/172:
Article 291 TEC
The Community shall enjoy in the territories of the Member States such privileges and immunities as are necessary for the performance of its tasks, under the conditions laid down in the Protocol of 8 April 1965 on the privileges and immunities of the European Communities. The same shall apply to the European Central Bank, the European Monetary Institute, and the European Investment
Bank.
***
Protocol currently
Annexed to the EC and Euratom treaties we find Protocol (No 36) on the privileges and immunities of the European Communities, OJEU 29.12.2006 C 321 E/318.
***
Lisbon Treaty
Despite the existing add-ons of supranational decision-making and representative democracy somewhat enhanced, the Treaty of Lisbon still stands firmly on the foundations of treaty law and diplomatic relations, far from a federal basic law.
The Treaty of Lisbon would replace the European Community by the European Union and it would drop the historic European Monetary Institute from the text, but the substance of the treaty provision on privileges and immunities is found alive and well in Article 343 of the Treaty on the Functioning of the European Union (TFEU), OJEU 9.5.2008 C 115/194.
In the consolidated Lisbon Treaty the protocol has drawn a new number, and it appears slightly updated as Protocol (No 7) on the privileges and immunities of the European Union (page 266 ff).
If anybody still needs convincing, the newest version of the Protocol still starts with the words ‘The High Contracting Parties’, hardly part of a federal vocabulary.
***
Overview: Privileges and immunities
The Lisbon Treaty may enter into force during the legislative term from 2009 to 2014, but the European Parliament elections between 4 and 7 June 2009 are going to take place under the current Treaty on European Union (TEU) and the Treaty establishing the European Community (TEC).
We continue our presentation of EU electoral law and the status of the European Parliament and its members (MEPs) with themes that seem a bit neglected by the member states and even by the EU institutions.
Ahead of the European elections it feels natural to proceed on the basis of the Protocol in force (although normally this blog dedicates more space to the Lisbon Treaty provisions than to the existing ones).
We start with a brief overview of Protocol (No 36) on the privileges and immunities of the European Communities, OJEU 29.12.2006 C 321 E/318.
The ‘raison d’être’ of the privileges and immunities is functional:
… these Communities and the European Investment Bank shall enjoy in the territories of the Member States such privileges and immunities as are necessary for the performance of their tasks …
Here are the Chapter headings for a cursory glance at the contents:
Chapter I Property, funds, assets and operations of the European Community
Chapter II Communications and laissez-passer
Chapter III Members of the European Parliament
Chapter IV Representatives of the Member States taking part in the work of the institutions of the European Communities
Chapter V Officials and other servants of the European Communities
Chapter VI Privileges and immunities of missions of third countries accredited to the European Communities
Chapter VII General provisions
***
With the European elections in June 2009 in mind, we advance towards the status of the European Parliament and the MEPs in the following posts.
Ralf Grahn
Sunday, 12 October 2008
EU: Monetary policy Ie
More legal materials on economic and monetary union (EMU), especially monetary policy, for students of history, politics, economics and law, as well as for interested EU citizens.
There are a few declarations relevant to the EC Treaty chapter on monetary policy. The declarations are politically (not legally) binding, and they have been annexed to the final acts of the intergovernmental conferences leading to the treaties of Maastricht, Amsterdam and Nice, respectively.
The European Central Bank (ECB) has a convenient web page on offer:
http://www.ecb.europa.eu/ecb/legal/1341/96687/html/index.en.html
If you are interested in a broader view of the declarations:
The latest consolidated version of the treaties (OJ 29.12.2006 C 321 E) does not contain the joint declarations or the unilateral declarations by one or more member states, but the Constitutional Treaty offers a fair approximation of the declarations seen as relevant today (OJ 16.12.2004 C 310).
The collected and updated declarations annexed to the Final Act of the Intergovernmental Conference which adopted the Treaty of Lisbon are another approximative source of declarations still seen as relevant. The original Lisbon Treaty (OJ 17.12.2007 C 306) and the consolidated version (OJ 9.5.2008 C 115) differ as to the numbering of Articles.
***
Declaration on Article 111 (ex Article 109) of the Treaty establishing the European Community OJ 29.7.1992 C 191/99 explained that the use of the term ‘formal agreements’ is not intended to create a new category of international agreement within the meaning of Community law.
***
Declaration on Article 111 (ex Article 109), 174 (ex Article 130r) and 181 (ex Article 130y) of the Treaty establishing the European Community, OJ 29.7.1992 C 191/100, where the intergovernmental conference considered that the provisions did not affect the principles resulting from the judgment handed down in the AETR case.
***
Declaration on disputes between the ECB and the EMI and their servants, OJ 29.7.1992 C 191/108, where the intergovernmental conference invited the institutions to adapt the relevant rules to let the Court of First Instance hear this class of actions.
***
Declaration on the quality of the drafting of Community legislation, OJ 10.11.1997 C 340/139, on common guidelines for improving the quality of the drafting of Community legislation and on the acceleration of codification of legislative texts.
***
Declaration on the provisions relating to transparency, access to documents and the fight against fraud, OJ 10.11.1997 C 340/140, placed the Treaty establishing the European Community as the model to be followed by the institutions when they acted within the context of the Treaty establishing the European Coal and Steel Community and the Treaty establishing the European Atomic Energy Community.
***
Declaration on Article 111 of the Treaty establishing the European Community, OJ 10.3.2001 C 80/78, where the intergovernmental conference agreed that procedures shall be such as to enable all the Member States in the euro area to be fully involved in each stage of preparing the position of the Community at international level as regards issues of particular relevance to economic and monetary union.
***
At treaty level, legally binding and worth mentioning again, we have the Protocol on the Statute of the European System of Central Banks and of the ECB (original OJ 29.7.1992 C 191/68)
In the consolidated version of the treaties, the 53 Articles of Protocol (No 18) on the Statute of the European System of Central Banks and of the ECB repeat and elaborate on the treaty provisions; located in OJ 29.12.2006 C 321 E/256─280.
The European Central Bank offers a web page with various versions, proposals and amendments:
http://www.ecb.europa.eu/ecb/legal/1341/1343/html/index.en.html
In the latest consolidated version of the treaties in force, the Statute is located in Protocol (No 18) in OJ 29.12.2006 C 321 E/256.
Not in force:
In the Treaty establishing a Constitution for Europe, we find the statute in Protocol (No 4), OJ 16.12.2004 C 310/225.
In the original Lisbon Treaty, look for Protocols to be annexed to the Treaty of Lisbon, IGC Protocol No 1 amending the Protocols annexed to the Treaty on European Union, to the Treaty establishing the European Community and/or to the Treaty establishing the European Atomic Energy Community, OJ 17.12.2007 C 306/163 (horizontal amendments) and from page 170 (specific amendments).
Protocol (No 4) on the statute of the European System of Central Banks and of the European Central Bank is presented in the consolidated version of the Treaty of Lisbon, OJ 9.5.2008 C 115/230.
Ralf Grahn
There are a few declarations relevant to the EC Treaty chapter on monetary policy. The declarations are politically (not legally) binding, and they have been annexed to the final acts of the intergovernmental conferences leading to the treaties of Maastricht, Amsterdam and Nice, respectively.
The European Central Bank (ECB) has a convenient web page on offer:
http://www.ecb.europa.eu/ecb/legal/1341/96687/html/index.en.html
If you are interested in a broader view of the declarations:
The latest consolidated version of the treaties (OJ 29.12.2006 C 321 E) does not contain the joint declarations or the unilateral declarations by one or more member states, but the Constitutional Treaty offers a fair approximation of the declarations seen as relevant today (OJ 16.12.2004 C 310).
The collected and updated declarations annexed to the Final Act of the Intergovernmental Conference which adopted the Treaty of Lisbon are another approximative source of declarations still seen as relevant. The original Lisbon Treaty (OJ 17.12.2007 C 306) and the consolidated version (OJ 9.5.2008 C 115) differ as to the numbering of Articles.
***
Declaration on Article 111 (ex Article 109) of the Treaty establishing the European Community OJ 29.7.1992 C 191/99 explained that the use of the term ‘formal agreements’ is not intended to create a new category of international agreement within the meaning of Community law.
***
Declaration on Article 111 (ex Article 109), 174 (ex Article 130r) and 181 (ex Article 130y) of the Treaty establishing the European Community, OJ 29.7.1992 C 191/100, where the intergovernmental conference considered that the provisions did not affect the principles resulting from the judgment handed down in the AETR case.
***
Declaration on disputes between the ECB and the EMI and their servants, OJ 29.7.1992 C 191/108, where the intergovernmental conference invited the institutions to adapt the relevant rules to let the Court of First Instance hear this class of actions.
***
Declaration on the quality of the drafting of Community legislation, OJ 10.11.1997 C 340/139, on common guidelines for improving the quality of the drafting of Community legislation and on the acceleration of codification of legislative texts.
***
Declaration on the provisions relating to transparency, access to documents and the fight against fraud, OJ 10.11.1997 C 340/140, placed the Treaty establishing the European Community as the model to be followed by the institutions when they acted within the context of the Treaty establishing the European Coal and Steel Community and the Treaty establishing the European Atomic Energy Community.
***
Declaration on Article 111 of the Treaty establishing the European Community, OJ 10.3.2001 C 80/78, where the intergovernmental conference agreed that procedures shall be such as to enable all the Member States in the euro area to be fully involved in each stage of preparing the position of the Community at international level as regards issues of particular relevance to economic and monetary union.
***
At treaty level, legally binding and worth mentioning again, we have the Protocol on the Statute of the European System of Central Banks and of the ECB (original OJ 29.7.1992 C 191/68)
In the consolidated version of the treaties, the 53 Articles of Protocol (No 18) on the Statute of the European System of Central Banks and of the ECB repeat and elaborate on the treaty provisions; located in OJ 29.12.2006 C 321 E/256─280.
The European Central Bank offers a web page with various versions, proposals and amendments:
http://www.ecb.europa.eu/ecb/legal/1341/1343/html/index.en.html
In the latest consolidated version of the treaties in force, the Statute is located in Protocol (No 18) in OJ 29.12.2006 C 321 E/256.
Not in force:
In the Treaty establishing a Constitution for Europe, we find the statute in Protocol (No 4), OJ 16.12.2004 C 310/225.
In the original Lisbon Treaty, look for Protocols to be annexed to the Treaty of Lisbon, IGC Protocol No 1 amending the Protocols annexed to the Treaty on European Union, to the Treaty establishing the European Community and/or to the Treaty establishing the European Atomic Energy Community, OJ 17.12.2007 C 306/163 (horizontal amendments) and from page 170 (specific amendments).
Protocol (No 4) on the statute of the European System of Central Banks and of the European Central Bank is presented in the consolidated version of the Treaty of Lisbon, OJ 9.5.2008 C 115/230.
Ralf Grahn
Saturday, 11 October 2008
EU: Monetary policy Id
At the outset of the chapter on monetary policy, we mention the treaty level provisions relevant to the European System of Central Banks (ESCB) and the European Central Bank (ECB), as set out in protocols. Originally, most of the protocols were annexed to the Treaty on European Union (Maastricht Treaty), and they can be accessed through the ECB web page ‘Relevant Protocols annexed to the Treaties’:
http://www.ecb.europa.eu/ecb/legal/1341/96667/html/index.en.html
Supposing that you work with the latest consolidated version of the treaties, ‘Consolidated versions of the Treaty on European Union and of the Treaty establishing the European Community’, I looked for the protocols as presented in the Official Journal of the European Union, OJ 29.12.2006 C 321 E, where the protocols are found in the different treaty languages from page 187 onwards. Here is the address to search for the desired OJ number:
http://eur-lex.europa.eu/JOIndex.do?ihmlang=en
***
Protocol on the Statute of the European System of Central Banks and of the ECB (original OJ 29.7.1992 C 191/68)
In the consolidated version of the treaties, the 53 Articles of Protocol (No 18) on the Statute of the European System of Central Banks and of the ECB repeat and elaborate on the treaty provisions; located in OJ 29.12.2006/256─280.
***
Protocol on the excessive deficit procedure (original OJ 29.7.1992 C 191/84)
Protocol (No 20) on the excessive deficit procedure, with i.a. the (maximum) reference values: government deficit 3 % of GDP and government debt 60 % of GDP, in OJ 29.12.2006/293─294.
***
Protocol on the convergence criteria referred to in Article 121 (ex Article 109) of the Treaty establishing the European Community (original OJ 29.7.1992 C 191/85)
Protocol (No 21) on the convergence criteria referred to in Article 121 of the Treaty establishing the European Community, with the following criteria defined: price stability, government budgetary position, participation in the exchange-rate mechanism and convergence of interest rates; OJ 29.12.2006/295─296.
***
Protocol on the privileges and immunities of the European Communities of 8 April 1965 (unofficial consolidated version 1.8.2003)
Protocol (No 36) on the privileges and immunities of the European Communities, with the European Central Bank added in Article 23; OJ 29.12.2006/318─324.
***
Protocol on Denmark (original OJ 29.7.1992 C 191/86)
Protocol (No 22) on Denmark allows he National Bank of Denmark to carry out carry out its existing tasks concerning those parts of the Kingdom of Denmark which are not part of the Community (in other words, the Faroe Islands and Greenland); OJ 29.12.2006/297.
***
Protocol on Portugal (original OJ 29.7.1992 C 191/86)
Protocol (No 23) on Portugal, whereby Portugal was authorised to maintain the facility afforded to the autonomous regions of Azores and Madeira to benefit from an interest-free credit facility with the Banco de Portugal under the terms established by existing Portuguese law, but Portugal committed itself to pursue its best endeavours in order to put an end to the as soon as possible; OJ 29.12.2006/297.
***
Protocol on the transition to the third stage of economic and monetary union (original OJ 29.7.1992 C 191/87)
Protocol (No 24) on the transition to the third stage of economic and monetary union, where the member states declared their respect the will for the Community to enter swiftly into the third stage, and to enable the Community to enter the third stage irrevocably on 1 January 1999 and to enable the ECB and the ESCB to start their full functioning from this date; OJ 29.12.2006/298.
***
Protocol on certain provisions relating to the United Kingdom of Great Britain and Northern Ireland (original OJ 29.7.1992 C 191/87)
Protocol (No 25) on certain provisions relating to the United Kingdom of Great Britain and Northern Ireland, where the member states recognised that the United Kingdom shall not be obliged or committed to move to the third stage of economic and monetary union without a separate decision to do so by its government and parliament, and set out the procedures and limitations caused by the UK opt-out; OJ 29.12.2006/299─301.
***
Protocol on certain provisions relating to Denmark (original OJ 29.7.1992 C 191/89)
Protocol (No 26) on certain provisions relating to Denmark, which acknowledged the Danish exemption from participation in the third stage of economic and monetary union (one of the four Maastricht opt-outs by Denmark); OJ 29.12.2006/302.
***
Protocol on France (original OJ 29.7.1992 C 191/90)
Protocol (No 27) on France, which provided that France will keep the privilege of monetary emission in its overseas territories under the terms established by its national laws, and will be solely entitled to determine the parity of the CFP franc; OJ 29.12.2006/303.
***
Protocol on the location of the seats of the institutions and of certain bodies and departments of the European Communities and of Europol (OJ 10.11.1997 C 340/112)
Protocol (No 8) on the location of the seats of the institutions and of certain bodies and departments of the European Communities and of Europol, with paragraph (i) apportioning the European Monetary Institute and the European Central Bank to have their seat in Frankfurt (am Main); OJ 29.12.2006/226.
Ralf Grahn
http://www.ecb.europa.eu/ecb/legal/1341/96667/html/index.en.html
Supposing that you work with the latest consolidated version of the treaties, ‘Consolidated versions of the Treaty on European Union and of the Treaty establishing the European Community’, I looked for the protocols as presented in the Official Journal of the European Union, OJ 29.12.2006 C 321 E, where the protocols are found in the different treaty languages from page 187 onwards. Here is the address to search for the desired OJ number:
http://eur-lex.europa.eu/JOIndex.do?ihmlang=en
***
Protocol on the Statute of the European System of Central Banks and of the ECB (original OJ 29.7.1992 C 191/68)
In the consolidated version of the treaties, the 53 Articles of Protocol (No 18) on the Statute of the European System of Central Banks and of the ECB repeat and elaborate on the treaty provisions; located in OJ 29.12.2006/256─280.
***
Protocol on the excessive deficit procedure (original OJ 29.7.1992 C 191/84)
Protocol (No 20) on the excessive deficit procedure, with i.a. the (maximum) reference values: government deficit 3 % of GDP and government debt 60 % of GDP, in OJ 29.12.2006/293─294.
***
Protocol on the convergence criteria referred to in Article 121 (ex Article 109) of the Treaty establishing the European Community (original OJ 29.7.1992 C 191/85)
Protocol (No 21) on the convergence criteria referred to in Article 121 of the Treaty establishing the European Community, with the following criteria defined: price stability, government budgetary position, participation in the exchange-rate mechanism and convergence of interest rates; OJ 29.12.2006/295─296.
***
Protocol on the privileges and immunities of the European Communities of 8 April 1965 (unofficial consolidated version 1.8.2003)
Protocol (No 36) on the privileges and immunities of the European Communities, with the European Central Bank added in Article 23; OJ 29.12.2006/318─324.
***
Protocol on Denmark (original OJ 29.7.1992 C 191/86)
Protocol (No 22) on Denmark allows he National Bank of Denmark to carry out carry out its existing tasks concerning those parts of the Kingdom of Denmark which are not part of the Community (in other words, the Faroe Islands and Greenland); OJ 29.12.2006/297.
***
Protocol on Portugal (original OJ 29.7.1992 C 191/86)
Protocol (No 23) on Portugal, whereby Portugal was authorised to maintain the facility afforded to the autonomous regions of Azores and Madeira to benefit from an interest-free credit facility with the Banco de Portugal under the terms established by existing Portuguese law, but Portugal committed itself to pursue its best endeavours in order to put an end to the as soon as possible; OJ 29.12.2006/297.
***
Protocol on the transition to the third stage of economic and monetary union (original OJ 29.7.1992 C 191/87)
Protocol (No 24) on the transition to the third stage of economic and monetary union, where the member states declared their respect the will for the Community to enter swiftly into the third stage, and to enable the Community to enter the third stage irrevocably on 1 January 1999 and to enable the ECB and the ESCB to start their full functioning from this date; OJ 29.12.2006/298.
***
Protocol on certain provisions relating to the United Kingdom of Great Britain and Northern Ireland (original OJ 29.7.1992 C 191/87)
Protocol (No 25) on certain provisions relating to the United Kingdom of Great Britain and Northern Ireland, where the member states recognised that the United Kingdom shall not be obliged or committed to move to the third stage of economic and monetary union without a separate decision to do so by its government and parliament, and set out the procedures and limitations caused by the UK opt-out; OJ 29.12.2006/299─301.
***
Protocol on certain provisions relating to Denmark (original OJ 29.7.1992 C 191/89)
Protocol (No 26) on certain provisions relating to Denmark, which acknowledged the Danish exemption from participation in the third stage of economic and monetary union (one of the four Maastricht opt-outs by Denmark); OJ 29.12.2006/302.
***
Protocol on France (original OJ 29.7.1992 C 191/90)
Protocol (No 27) on France, which provided that France will keep the privilege of monetary emission in its overseas territories under the terms established by its national laws, and will be solely entitled to determine the parity of the CFP franc; OJ 29.12.2006/303.
***
Protocol on the location of the seats of the institutions and of certain bodies and departments of the European Communities and of Europol (OJ 10.11.1997 C 340/112)
Protocol (No 8) on the location of the seats of the institutions and of certain bodies and departments of the European Communities and of Europol, with paragraph (i) apportioning the European Monetary Institute and the European Central Bank to have their seat in Frankfurt (am Main); OJ 29.12.2006/226.
Ralf Grahn
Wednesday, 23 April 2008
EU TFEU: National parliaments in criminal matters and police cooperation
In EU criminal matters and police cooperation the national parliaments are given a lower than usual threshold to force a rethink of a legislative proposal on the grounds of subsidiarity, the principle meaning that decisions should be taken as closely as possible to the citizens of the European Union.
The EU Treaty of Lisbon moves criminal matters and police cooperation from the ntergovernmental third pillar to become more or less normal internal policy areas.
***
Article 68 of the Treaty on the Functioning of the European Union (TFEU) is presented as it stands after the intergovernmental conference (IGC 2007) in the Treaty of Lisbon (ToL), renumbered and provisionally consolidated by the Council of the European Union (document 6655/08; page 96), with the location of the provision added from the table of equivalences (page 460 to 462):
Part Three ‘Policies and internal actions of the Union’
Title V TFEU ‘Area of freedom, security and justice’
Chapter 1 ‘General provisions’
Article 69 TFEU
National Parliaments ensure that the proposals and legislative initiatives submitted under Chapters 4 and 5 comply with the principle of subsidiarity, in accordance with the arrangements laid down by the Protocol on the application of the principles of subsidiarity and proportionality.
***
In Article 2, point 64, of the Treaty of Lisbon the intergovernmental conference was content to present the wording of the new Article 61b, which became Article 69 TFEU after renumbering (OJ 17.12.2007 C 306/57).
***
There is no directly corresponding Article in the present treaties.
***
The European Convention proposed the following Article III-160 of the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/57):
Article III-160 Draft Constitution
1. Member States' national Parliaments shall ensure that the proposals and legislative initiatives submitted under Sections 4 and 5 of this Chapter comply with the principle of subsidiarity, in accordance with the arrangements in the Protocol on the application of the principles of subsidiarity and proportionality.
Member States' national Parliaments may participate in the evaluation mechanisms contained in Article III-161 and in the political monitoring of Europol and the evaluation of Eurojust's activities in accordance with Articles III-177 and III-174.
***
The IGC 2004 split the first paragraph of the draft into an Article III-259 with small stylistic changes (OJ 16.12.2004 C 310/113):
Article III-259 Constitution
National Parliaments shall ensure that the proposals and legislative initiatives submitted under Sections 4 and 5 of this Chapter comply with the principle of subsidiarity, in accordance with the arrangements laid down by the Protocol on the application of the principles of subsidiarity and proportionality.
***
We can see that the meat was served by the European Convention, tranched by the IGC 2004 and seasoned by the IGC 2007 to accommodate a sensitive British palate by removing the abhorrent ‘shall’. In addition a few necessary technical adjustments were made.
***
Actually, a provision like this is more like a food coupon than a real meal, because it only holds out the promise of something substantial through referrals to other provisions.
First, we are sent off to check out the substance of the offering by looking up the subject matter covered. As pointed out in Article 2, point 63, of the Treaty of Lisbon, Chapter 4 is called ‘Judicial cooperation in criminal matters’ and Chapter 5 concerns ‘Police cooperation’.
At this point we can conclude that some sort of special arrangement is reserved for the two areas shifted from the intergovernmental third pillar (TEU) to what is presently known as the first or Community pillar (TEC).
***
Second, the procedures are laid down in the Protocol on the application of the principles of subsidiarity and proportionality.
Protocol (No 2) on the application of the principles of subsidiarity and proportionality has been honed at every turn, but we are content to look at its coming incarnation, as envisioned by the Treaty of Lisbon in the provisional consolidated version published by the Council (document 6655/08; page 266 to 269).
The difference between the subsidiarity control of draft legislative acts in general and those pertaining to criminal matters or police cooperation appears from Article 7(2) of the Protocol (page 268):
“2. Where reasoned opinions on a draft legislative act's non-compliance with the principle of subsidiarity represent at least one third of all the votes allocated to the national Parliaments in accordance with the second subparagraph of paragraph 1, the draft must be reviewed. This threshold shall be a quarter in the case of a draft legislative act submitted on the basis of Article 76 of the Treaty on the Functioning of the European Union on the area of freedom, security and justice.
After such review, the Commission or, where appropriate, the group of Member States, the European Parliament, the Court of Justice, the European Central Bank or the European Investment Bank, if the draft legislative act originates from them, may decide to maintain, amend or withdraw the draft. Reasons must be given for this decision.”
***
Ordinarily, the threshold for rethinking a legislative proposal is one third of the votes given to the national parliaments, but in the case of draft legislative acts submitted on the basis of Article 76 TFEU, namely acts referred to in Chapters 4 (criminal matters) and 5 (police cooperation) and proposed by the Commission or on the initiative of a quarter of the member states, it is only a quarter of the votes allocated.
The special subsidiarity control threshold for proposals concerning Chapter 4 ‘Judicial cooperation in criminal matters’ and Chapter 5 ‘Police cooperation’ serves as a reminder of their third pillar origins.
Ralf Grahn
EU Treaty sources:
If you want to read or download the Council’s consolidated Treaty on European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU) as amended by the Lisbon Treaty, the original Treaty of Lisbon, the current TEU and TEC, the Draft Constitution, the Constitutional Treaty, or other consolidated language versions of the Lisbon Treaty TEU and TFEU, you find the needed information and links in the blawg post ‘Consolidated Treaty of Lisbon and other EU materials’ of 21 April 2008:
http://grahnlaw.blogspot.com/2008/04/consolidated-treaty-of-lisbon-and-other.html
The EU Treaty of Lisbon moves criminal matters and police cooperation from the ntergovernmental third pillar to become more or less normal internal policy areas.
***
Article 68 of the Treaty on the Functioning of the European Union (TFEU) is presented as it stands after the intergovernmental conference (IGC 2007) in the Treaty of Lisbon (ToL), renumbered and provisionally consolidated by the Council of the European Union (document 6655/08; page 96), with the location of the provision added from the table of equivalences (page 460 to 462):
Part Three ‘Policies and internal actions of the Union’
Title V TFEU ‘Area of freedom, security and justice’
Chapter 1 ‘General provisions’
Article 69 TFEU
National Parliaments ensure that the proposals and legislative initiatives submitted under Chapters 4 and 5 comply with the principle of subsidiarity, in accordance with the arrangements laid down by the Protocol on the application of the principles of subsidiarity and proportionality.
***
In Article 2, point 64, of the Treaty of Lisbon the intergovernmental conference was content to present the wording of the new Article 61b, which became Article 69 TFEU after renumbering (OJ 17.12.2007 C 306/57).
***
There is no directly corresponding Article in the present treaties.
***
The European Convention proposed the following Article III-160 of the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/57):
Article III-160 Draft Constitution
1. Member States' national Parliaments shall ensure that the proposals and legislative initiatives submitted under Sections 4 and 5 of this Chapter comply with the principle of subsidiarity, in accordance with the arrangements in the Protocol on the application of the principles of subsidiarity and proportionality.
Member States' national Parliaments may participate in the evaluation mechanisms contained in Article III-161 and in the political monitoring of Europol and the evaluation of Eurojust's activities in accordance with Articles III-177 and III-174.
***
The IGC 2004 split the first paragraph of the draft into an Article III-259 with small stylistic changes (OJ 16.12.2004 C 310/113):
Article III-259 Constitution
National Parliaments shall ensure that the proposals and legislative initiatives submitted under Sections 4 and 5 of this Chapter comply with the principle of subsidiarity, in accordance with the arrangements laid down by the Protocol on the application of the principles of subsidiarity and proportionality.
***
We can see that the meat was served by the European Convention, tranched by the IGC 2004 and seasoned by the IGC 2007 to accommodate a sensitive British palate by removing the abhorrent ‘shall’. In addition a few necessary technical adjustments were made.
***
Actually, a provision like this is more like a food coupon than a real meal, because it only holds out the promise of something substantial through referrals to other provisions.
First, we are sent off to check out the substance of the offering by looking up the subject matter covered. As pointed out in Article 2, point 63, of the Treaty of Lisbon, Chapter 4 is called ‘Judicial cooperation in criminal matters’ and Chapter 5 concerns ‘Police cooperation’.
At this point we can conclude that some sort of special arrangement is reserved for the two areas shifted from the intergovernmental third pillar (TEU) to what is presently known as the first or Community pillar (TEC).
***
Second, the procedures are laid down in the Protocol on the application of the principles of subsidiarity and proportionality.
Protocol (No 2) on the application of the principles of subsidiarity and proportionality has been honed at every turn, but we are content to look at its coming incarnation, as envisioned by the Treaty of Lisbon in the provisional consolidated version published by the Council (document 6655/08; page 266 to 269).
The difference between the subsidiarity control of draft legislative acts in general and those pertaining to criminal matters or police cooperation appears from Article 7(2) of the Protocol (page 268):
“2. Where reasoned opinions on a draft legislative act's non-compliance with the principle of subsidiarity represent at least one third of all the votes allocated to the national Parliaments in accordance with the second subparagraph of paragraph 1, the draft must be reviewed. This threshold shall be a quarter in the case of a draft legislative act submitted on the basis of Article 76 of the Treaty on the Functioning of the European Union on the area of freedom, security and justice.
After such review, the Commission or, where appropriate, the group of Member States, the European Parliament, the Court of Justice, the European Central Bank or the European Investment Bank, if the draft legislative act originates from them, may decide to maintain, amend or withdraw the draft. Reasons must be given for this decision.”
***
Ordinarily, the threshold for rethinking a legislative proposal is one third of the votes given to the national parliaments, but in the case of draft legislative acts submitted on the basis of Article 76 TFEU, namely acts referred to in Chapters 4 (criminal matters) and 5 (police cooperation) and proposed by the Commission or on the initiative of a quarter of the member states, it is only a quarter of the votes allocated.
The special subsidiarity control threshold for proposals concerning Chapter 4 ‘Judicial cooperation in criminal matters’ and Chapter 5 ‘Police cooperation’ serves as a reminder of their third pillar origins.
Ralf Grahn
EU Treaty sources:
If you want to read or download the Council’s consolidated Treaty on European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU) as amended by the Lisbon Treaty, the original Treaty of Lisbon, the current TEU and TEC, the Draft Constitution, the Constitutional Treaty, or other consolidated language versions of the Lisbon Treaty TEU and TFEU, you find the needed information and links in the blawg post ‘Consolidated Treaty of Lisbon and other EU materials’ of 21 April 2008:
http://grahnlaw.blogspot.com/2008/04/consolidated-treaty-of-lisbon-and-other.html
Wednesday, 6 February 2008
EU Treaty of Lisbon: Protocols and Annexes
In the Treaty of Lisbon version of the Treaty on European Union (TEU), among the Final provisions, we find the new Article 49b (OJ 17.12.2007 C 306/40), slim as the lid of Pandora’s box:
59) The following Article 49 B shall be inserted:
Article 49 B
The Protocols and Annexes to the Treaties shall form an integral part thereof.
***
There is no corresponding Article in the existing TEU, but Article 311 of the Treaty establishing the European Community (TEC) has the following wording (for the latest consolidated version of the TEU and TEC go to OJ 29.12.2006 C 321 E):
Article 311
The protocols annexed to this Treaty by common accord of the Member States shall form an integral part thereof.
According to the Lisbon Treaty, Article 311 TEC is repealed (OJ 17.12.2007 C 306/132, point 293).
***
Since the European Convention’s draft Treaty establishing a Constitution for Europe was unified, the corresponding Article IV-6 referred to the whole Treaty (OJ 18.7.2003 C 169/92):
Article IV-6
Protocols
The protocols annexed to this Treaty shall form an integral part thereof.
***
The same unified structure applied to the Treaty establishing a Constitution for Europe (OJ 16.12.2004 C 310/189):
Article IV-442
Protocols and Annexes
The Protocols and Annexes to this Treaty shall form an integral part thereof.
***
In the law of the European Union, a new legal order, the Treaties are primary legislation. Currently the Treaties are the Treaty on European Union (TEU) and the Treaty establishing the European Community (TEC). If the Treaty of Lisbon enters into force, there would be the amended Treaty on European Union (TEU) and the amended and renamed Treaty on the Functioning of the European Union (TFEU).
The current TEC speaks of the protocols as an integral part of the Treaty, as did the draft Constitution. The Constitution added the Annexes to the Protocols (annexed to the Treaty by common accord), as does the Lisbon Treaty. The scope of the provision widens from the EC to the EU.
The Protocols form an integral part of the Treaties, and they are ratified as such. They have legal force, and they can contain detailed provisions meant not to burden the Treaty texts themselves.
The Declarations have political force, but are not to be legally binding. There have been joint Declarations, based on common accord, and unilateral Declarations made by one or more member states, but not politically binding on the whole.
The new wording ‘and Annexes’ merits attention. The UK House of Commons new Research Paper (page 75) a bit hastily says that Article 49b “like the present Article 311 TEC, states that the Protocols and Annexes will form an integral part of the Treaties”.
As we have seen, the words “and Annexes” have been added, although Article 311 TEC uses the phrase “(t)he protocols annexed to this Treaty by common accord of the Member States”. But the conclusion of the Research Paper seems sound:
“This is a new clause in the TEU, extending the application of current Article 311 TEC, which is repealed. It means the Protocols and Annexes will have the full legal effect of the Treaty articles themselves. This is not the case for Declarations attached to the Treaties.”
***
We can now take a look at how the intergovernmental conference (IGC 2007) has structured its Final Act (OJ 2007/C 306/02).
As far as I understand, the legally binding parts are:
I the TEU and the TFEU
II the Protocols, namely:
A. Protocols annexed to the Treaty on European Union, to the Treaty establishing the European Community, and/or the Treaty establishing the European Atomic Energy Community
B. Protocols annexed to the Treaty of Lisbon
III. Annex to the Treaty of Lisbon (tables of equivalences)
They form an integral part of the Treaties.
FINAL ACT (OJ 17.12.2007 C 306/229)
THE CONFERENCE OF THE REPRESENTATIVES OF THE GOVERNMENTS OF THE MEMBER STATES,
convened in Brussels on 23 July 2007 to adopt by common accord the amendments to be made to theTreaty on European Union, the Treaty establishing the European Community, and to the Treaty establishing the European Atomic Energy Community, has adopted the following texts:
I. The Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community
II. Protocols
A. Protocols annexed to the Treaty on European Union, to the Treaty establishing the European Community, and/or the Treaty establishing the European Atomic Energy Community:
— Protocol on the role of national Parliaments in the European Union
— Protocol on the application of the principles of subsidiarity and proportionality
— Protocol on the Euro Group
— Protocol on permanent structured cooperation established by Article 28 A of the Treaty on European Union
— Protocol relating to Article 6(2) of the Treaty on European Union on the accession of the Union to the European Convention on the Protection of Human Rights and Fundamental Freedoms
— Protocol on the internal market and competition
— Protocol on the application of the Charter of Fundamental Rights of the European Union to Poland and to the United Kingdom
— Protocol on the exercise of shared competence
— Protocol on services of general interest
— Protocol on the Decision of the Council relating to the implementation of Article 9 C(4) of the Treaty on European Union and Article 205(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
— Protocol on transitional provisions
These are mainly new Protocols, some of them derived from the Constitutional Treaty and some the result of the IGC 2007 negotiations.
***
B. Protocols annexed to the Treaty of Lisbon
— Protocol No 1 amending the Protocols annexed to the Treaty on European Union, to the Treaty establishing the European Community and/or to the Treaty establishing the European Atomic Energy Community
— Tables of equivalences referred to in Article 2 of Protocol No 1 amending the protocols annexed to the Treaty on European Union, to the Treaty establishing the European Community and/or the Treaty establishing the European Atomic Energy Community
— Protocol No 2 amending the Treaty establishing the European Atomic Energy Community
Behind Protocol 1 of this group we find adaptations to 26 existing Protocols, including rules for the Court of Justice and the European Central Bank, as well as traditional opt-outs from areas of Community (EU) law for the United Kingdom, Ireland and Denmark.
Ten redundant Protocols are repealed according to the count of the Swedish government (page 398).
Protocol number 2 is an adaptation of the Treaty establishing the European Atomic Energy Community (EAEC). – In Declaration 54 the Federal Republic of Germany, Ireland, the
Republic of Hungary, the Republic of Austria and the Kingdom of Sweden note that the core provisions of the Treaty establishing the European Atomic Energy Community have not been substantially amended since its entry into force and need to be brought up to date. They therefore support the idea of a Conference of the Representatives of the Governments of the Member States, which should be convened as soon as possible.
***
III. Annex to the Treaty of Lisbon:
— Tables of equivalences referred to in Article 5 of the Treaty of Lisbon
This binding Annex contains the tables with the numbering of the current TEU, the original numbering of the Treaty of Lisbon and the numbering for the future consolidated TEU. The same goes for the TEC, the Treaty of Lisbon and the consolidated TFEU.
In addition to the current, Lisbon and future numbers of Articles, we have the Lisbon Treaty itself, divided into seven Articles. “Article 5 of the Treaty of Lisbon” refers to this numbering, under the Final Provisions in the Official Journal, page 133, where the renumbering is ordered:
Article 5(1) ToL
1. The articles, sections, chapters, titles and parts of the Treaty on European Union and of the
Treaty establishing the European Community, as amended by this Treaty, shall be renumbered in accordance with the tables of equivalences set out in the Annex to this Treaty, and which form an integral part of this Treaty.
The reader who feels slightly bewildered is excused.
***
The Declarations adopted by the IGC 2007 are annexed to the Final Act, but not to the Treaty. The joint Declarations would still be politically but not legally binding on the member states as a whole. There are two groups of joint Declarations:
A. Declarations concerning provisions of the Treaties
B. Declarations concerning Protocols annexed to the Treaties
The Conference has adopted the following declarations annexed to this Final Act.
A. Declarations concerning provisions of the Treaties
1. Declaration concerning the Charter of Fundamental Rights of the European Union
2. Declaration on Article 6(2) of the Treaty on European Union
3. Declaration on Article 7a of the Treaty on European Union
4. Declaration on the composition of the European Parliament
5. Declaration on the political agreement by the European Council concerning the draft Decision on the composition of the European Parliament
6. Declaration on Articles 9 B(5) and (6), Articles 9 D(6) and (7), and Article 9 E of the Treaty on European Union
7. Declaration on Article 9 C(4) of the Treaty on European Union and Article 205(2) of the Treaty on the Functioning of the European Union
8. Declaration on practical measures to be taken upon the entry into force of the Treaty of Lisbon as regards the Presidency of the European Council and of the Foreign Affairs Council
9. Declaration on Article 9 C(9) of the Treaty on European Union concerning the European Council decision on the exercise of the Presidency of the Council
10. Declaration on Article 9 D of the Treaty on European Union
11. Declaration on Article 9 D(6) and (7) of the Treaty on European Union
12. Declaration on Article 9 E of the Treaty on European Union
13. Declaration concerning the common foreign and security policy
14. Declaration concerning the common foreign and security policy
15. Declaration on Article 13a of the Treaty on European Union
16. Declaration on Article 53(2) of the Treaty on European Union
17. Declaration concerning primacy
18. Declaration in relation to the delimitation of competences
19. Declaration on Article 3 of the Treaty on the Functioning of the European Union
20. Declaration on Article 16 B of the Treaty on the Functioning of the European Union
21. Declaration on the protection of personal data in the fields of judicial cooperation in criminal matters and police cooperation
22. Declaration on Articles 42 and 63a of the Treaty on the Functioning of the European Union
23. Declaration on the second paragraph of Article 42 of the Treaty on the Functioning of the European Union
24. Declaration concerning the legal personality of the European Union
25. Declaration on Articles 61 H and 188 K of the Treaty on the Functioning of the European Union
26. Declaration on non-participation by a Member State in a measure based on Title IV of Part Three of the Treaty on the Functioning of the European Union
27. Declaration on Article 69 D(1), second subparagraph, of the Treaty on the Functioning of the European Union
28. Declaration on Article 78 of the Treaty on the Functioning of the European Union
29. Declaration on Article 87(2)(c) of the Treaty on the Functioning of the European Union
30. Declaration on Article 104 of the Treaty on the Functioning of the European Union
31. Declaration on Article 140 of the Treaty on the Functioning of the European Union
32. Declaration on Article 152(4)(c) of the Treaty on the Functioning of the European Union
33. Declaration on Article 158 of the Treaty on the Functioning of the European Union
34. Declaration on Article 163 of the Treaty on the Functioning of the European Union
35. Declaration on Article 176 A of the Treaty on the Functioning of the European Union
36. Declaration on Article 188 N of the Treaty on the Functioning of the European Union concerning the negotiation and conclusion of international agreements by Member States relating to the area of freedom, security and justice
37. Declaration on Article 188 R of the Treaty on the Functioning of the European Union
38. Declaration on Article 222 of the Treaty on the Functioning of the European Union regarding the number of Advocates-General in the Court of Justice
39. Declaration on Article 249 B of the Treaty on the Functioning of the European Union
40. Declaration on Article 280 D of the Treaty on the Functioning of the European Union
41. Declaration on Article 308 of the Treaty on the Functioning of the European Union
42. Declaration on Article 308 of the Treaty on the Functioning of the European Union
43. Declaration on Article 311a(6) of the Treaty on the Functioning of the European Union
B. Declarations concerning Protocols annexed to the Treaties
44. Declaration on Article 5 of the Protocol on the Schengen acquis integrated into the framework of the European Union
45. Declaration on Article 5(2) of the Protocol on the Schengen acquis integrated into the framework of the European Union
46. Declaration on Article 5(3) of the Protocol on the Schengen acquis integrated into the framework of the European Union
47. Declaration on Article 5(3), (4) and (5) of the Protocol on the Schengen acquis integrated into the framework of the European Union
48. Declaration concerning the Protocol on the position of Denmark
49. Declaration concerning Italy
50. Declaration concerning Article 10 of the Protocol on transitional provisions
***
Then there are the unilateral Declarations, by one or more member states, without legal force for the whole, but expressing the political intent of the declarants.
Furthermore, the Conference has noted the declarations listed hereafter and annexed to this Final Act:
51. Declaration by the Kingdom of Belgium on national Parliaments
52. Declaration by the Kingdom of Belgium, the Republic of Bulgaria, the Federal Republic of Germany, the Hellenic Republic, the Kingdom of Spain, the Italian Republic, the Republic of Cyprus, the Republic of Lithuania, the Grand-Duchy of Luxembourg, the Republic of Hungary, the Republic of Malta, the Republic of Austria, the Portuguese Republic, Romania, the Republic of Slovenia, and the Slovak Republic on the symbols of the European Union
53. Declaration by the Czech Republic on the Charter of Fundamental Rights of the European Union
54. Declaration by the Federal Republic of Germany, Ireland, the Republic of Hungary, the Republic of Austria and the Kingdom of Sweden
55. Declaration by the Kingdom of Spain and the United Kingdom of Great Britain and Northern Ireland
56. Declaration by Ireland on Article 3 of the Protocol on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice
57. Declaration by the Italian Republic on the composition of the European Parliament
58. Declaration by the Republic of Latvia, the Republic of Hungary and the Republic of Malta on the spelling of the name of the single currency in the Treaties
59. Declaration by the Kingdom of the Netherlands on Article 270a of the Treaty on the Functioning of the European Union
60. Declaration by the Kingdom of the Netherlands on Article 311a of the Treaty on the Functioning of the European Union
61. Declaration by the Republic of Poland on the Charter of Fundamental Rights of the European Union
62. Declaration by the Republic of Poland concerning the Protocol on the application of the Charter of Fundamental Rights of the European Union in relation to Poland and the United Kingdom
63. Declaration by the United Kingdom of Great Britain and Northern Ireland on the definition of the term ‘nationals’
64. Declaration by the United Kingdom of Great Britain and Northern Ireland on the franchise for elections to the European Parliament
65. Declaration by the United Kingdom of Great Britain and Northern Ireland on Article 61 H of the Treaty on the Functioning of the European Union
***
If my understanding is correct, the only legally binding addition to the Treaties themselves and the Protocols is the Annex containing the tables of equivalences. Thus, there is no change concerning the political nature of the Declarations annexed to the Final Act, but not to the Treaties.
Ralf Grahn
Sources:
UK House of Commons Library Research Paper 08/09, 24 January 2008: The Treaty of Lisbon: amendments to the Treaty on European Union
http://www.parliament.uk/commons/lib/research/rp2008/rp08-009.pdf
Government of Sweden, Regeringskansliet: Lissabonfördraget, Statsrådsberedningen, Departementsserien (Ds) Ds 2007:48, 20 december 2007
http://www.regeringen.se/sb/d/108/a/94981
Government of Denmark: Lov om aendring af lov om Danmarks tiltraedelse af De Europaeiske Faelleskaber og Den Europaeiske Union (Danmarks ratification af Lissabon-traktaten); Lovforslag nr. L 53, Fremsat den 9. januar 2008 af udenrigsministeren (Per Stig Møller); Bind III
http://www.eu-oplysningen.dk/upload/application/pdf/c510022c/BindIII.pdf
59) The following Article 49 B shall be inserted:
Article 49 B
The Protocols and Annexes to the Treaties shall form an integral part thereof.
***
There is no corresponding Article in the existing TEU, but Article 311 of the Treaty establishing the European Community (TEC) has the following wording (for the latest consolidated version of the TEU and TEC go to OJ 29.12.2006 C 321 E):
Article 311
The protocols annexed to this Treaty by common accord of the Member States shall form an integral part thereof.
According to the Lisbon Treaty, Article 311 TEC is repealed (OJ 17.12.2007 C 306/132, point 293).
***
Since the European Convention’s draft Treaty establishing a Constitution for Europe was unified, the corresponding Article IV-6 referred to the whole Treaty (OJ 18.7.2003 C 169/92):
Article IV-6
Protocols
The protocols annexed to this Treaty shall form an integral part thereof.
***
The same unified structure applied to the Treaty establishing a Constitution for Europe (OJ 16.12.2004 C 310/189):
Article IV-442
Protocols and Annexes
The Protocols and Annexes to this Treaty shall form an integral part thereof.
***
In the law of the European Union, a new legal order, the Treaties are primary legislation. Currently the Treaties are the Treaty on European Union (TEU) and the Treaty establishing the European Community (TEC). If the Treaty of Lisbon enters into force, there would be the amended Treaty on European Union (TEU) and the amended and renamed Treaty on the Functioning of the European Union (TFEU).
The current TEC speaks of the protocols as an integral part of the Treaty, as did the draft Constitution. The Constitution added the Annexes to the Protocols (annexed to the Treaty by common accord), as does the Lisbon Treaty. The scope of the provision widens from the EC to the EU.
The Protocols form an integral part of the Treaties, and they are ratified as such. They have legal force, and they can contain detailed provisions meant not to burden the Treaty texts themselves.
The Declarations have political force, but are not to be legally binding. There have been joint Declarations, based on common accord, and unilateral Declarations made by one or more member states, but not politically binding on the whole.
The new wording ‘and Annexes’ merits attention. The UK House of Commons new Research Paper (page 75) a bit hastily says that Article 49b “like the present Article 311 TEC, states that the Protocols and Annexes will form an integral part of the Treaties”.
As we have seen, the words “and Annexes” have been added, although Article 311 TEC uses the phrase “(t)he protocols annexed to this Treaty by common accord of the Member States”. But the conclusion of the Research Paper seems sound:
“This is a new clause in the TEU, extending the application of current Article 311 TEC, which is repealed. It means the Protocols and Annexes will have the full legal effect of the Treaty articles themselves. This is not the case for Declarations attached to the Treaties.”
***
We can now take a look at how the intergovernmental conference (IGC 2007) has structured its Final Act (OJ 2007/C 306/02).
As far as I understand, the legally binding parts are:
I the TEU and the TFEU
II the Protocols, namely:
A. Protocols annexed to the Treaty on European Union, to the Treaty establishing the European Community, and/or the Treaty establishing the European Atomic Energy Community
B. Protocols annexed to the Treaty of Lisbon
III. Annex to the Treaty of Lisbon (tables of equivalences)
They form an integral part of the Treaties.
FINAL ACT (OJ 17.12.2007 C 306/229)
THE CONFERENCE OF THE REPRESENTATIVES OF THE GOVERNMENTS OF THE MEMBER STATES,
convened in Brussels on 23 July 2007 to adopt by common accord the amendments to be made to theTreaty on European Union, the Treaty establishing the European Community, and to the Treaty establishing the European Atomic Energy Community, has adopted the following texts:
I. The Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community
II. Protocols
A. Protocols annexed to the Treaty on European Union, to the Treaty establishing the European Community, and/or the Treaty establishing the European Atomic Energy Community:
— Protocol on the role of national Parliaments in the European Union
— Protocol on the application of the principles of subsidiarity and proportionality
— Protocol on the Euro Group
— Protocol on permanent structured cooperation established by Article 28 A of the Treaty on European Union
— Protocol relating to Article 6(2) of the Treaty on European Union on the accession of the Union to the European Convention on the Protection of Human Rights and Fundamental Freedoms
— Protocol on the internal market and competition
— Protocol on the application of the Charter of Fundamental Rights of the European Union to Poland and to the United Kingdom
— Protocol on the exercise of shared competence
— Protocol on services of general interest
— Protocol on the Decision of the Council relating to the implementation of Article 9 C(4) of the Treaty on European Union and Article 205(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
— Protocol on transitional provisions
These are mainly new Protocols, some of them derived from the Constitutional Treaty and some the result of the IGC 2007 negotiations.
***
B. Protocols annexed to the Treaty of Lisbon
— Protocol No 1 amending the Protocols annexed to the Treaty on European Union, to the Treaty establishing the European Community and/or to the Treaty establishing the European Atomic Energy Community
— Tables of equivalences referred to in Article 2 of Protocol No 1 amending the protocols annexed to the Treaty on European Union, to the Treaty establishing the European Community and/or the Treaty establishing the European Atomic Energy Community
— Protocol No 2 amending the Treaty establishing the European Atomic Energy Community
Behind Protocol 1 of this group we find adaptations to 26 existing Protocols, including rules for the Court of Justice and the European Central Bank, as well as traditional opt-outs from areas of Community (EU) law for the United Kingdom, Ireland and Denmark.
Ten redundant Protocols are repealed according to the count of the Swedish government (page 398).
Protocol number 2 is an adaptation of the Treaty establishing the European Atomic Energy Community (EAEC). – In Declaration 54 the Federal Republic of Germany, Ireland, the
Republic of Hungary, the Republic of Austria and the Kingdom of Sweden note that the core provisions of the Treaty establishing the European Atomic Energy Community have not been substantially amended since its entry into force and need to be brought up to date. They therefore support the idea of a Conference of the Representatives of the Governments of the Member States, which should be convened as soon as possible.
***
III. Annex to the Treaty of Lisbon:
— Tables of equivalences referred to in Article 5 of the Treaty of Lisbon
This binding Annex contains the tables with the numbering of the current TEU, the original numbering of the Treaty of Lisbon and the numbering for the future consolidated TEU. The same goes for the TEC, the Treaty of Lisbon and the consolidated TFEU.
In addition to the current, Lisbon and future numbers of Articles, we have the Lisbon Treaty itself, divided into seven Articles. “Article 5 of the Treaty of Lisbon” refers to this numbering, under the Final Provisions in the Official Journal, page 133, where the renumbering is ordered:
Article 5(1) ToL
1. The articles, sections, chapters, titles and parts of the Treaty on European Union and of the
Treaty establishing the European Community, as amended by this Treaty, shall be renumbered in accordance with the tables of equivalences set out in the Annex to this Treaty, and which form an integral part of this Treaty.
The reader who feels slightly bewildered is excused.
***
The Declarations adopted by the IGC 2007 are annexed to the Final Act, but not to the Treaty. The joint Declarations would still be politically but not legally binding on the member states as a whole. There are two groups of joint Declarations:
A. Declarations concerning provisions of the Treaties
B. Declarations concerning Protocols annexed to the Treaties
The Conference has adopted the following declarations annexed to this Final Act.
A. Declarations concerning provisions of the Treaties
1. Declaration concerning the Charter of Fundamental Rights of the European Union
2. Declaration on Article 6(2) of the Treaty on European Union
3. Declaration on Article 7a of the Treaty on European Union
4. Declaration on the composition of the European Parliament
5. Declaration on the political agreement by the European Council concerning the draft Decision on the composition of the European Parliament
6. Declaration on Articles 9 B(5) and (6), Articles 9 D(6) and (7), and Article 9 E of the Treaty on European Union
7. Declaration on Article 9 C(4) of the Treaty on European Union and Article 205(2) of the Treaty on the Functioning of the European Union
8. Declaration on practical measures to be taken upon the entry into force of the Treaty of Lisbon as regards the Presidency of the European Council and of the Foreign Affairs Council
9. Declaration on Article 9 C(9) of the Treaty on European Union concerning the European Council decision on the exercise of the Presidency of the Council
10. Declaration on Article 9 D of the Treaty on European Union
11. Declaration on Article 9 D(6) and (7) of the Treaty on European Union
12. Declaration on Article 9 E of the Treaty on European Union
13. Declaration concerning the common foreign and security policy
14. Declaration concerning the common foreign and security policy
15. Declaration on Article 13a of the Treaty on European Union
16. Declaration on Article 53(2) of the Treaty on European Union
17. Declaration concerning primacy
18. Declaration in relation to the delimitation of competences
19. Declaration on Article 3 of the Treaty on the Functioning of the European Union
20. Declaration on Article 16 B of the Treaty on the Functioning of the European Union
21. Declaration on the protection of personal data in the fields of judicial cooperation in criminal matters and police cooperation
22. Declaration on Articles 42 and 63a of the Treaty on the Functioning of the European Union
23. Declaration on the second paragraph of Article 42 of the Treaty on the Functioning of the European Union
24. Declaration concerning the legal personality of the European Union
25. Declaration on Articles 61 H and 188 K of the Treaty on the Functioning of the European Union
26. Declaration on non-participation by a Member State in a measure based on Title IV of Part Three of the Treaty on the Functioning of the European Union
27. Declaration on Article 69 D(1), second subparagraph, of the Treaty on the Functioning of the European Union
28. Declaration on Article 78 of the Treaty on the Functioning of the European Union
29. Declaration on Article 87(2)(c) of the Treaty on the Functioning of the European Union
30. Declaration on Article 104 of the Treaty on the Functioning of the European Union
31. Declaration on Article 140 of the Treaty on the Functioning of the European Union
32. Declaration on Article 152(4)(c) of the Treaty on the Functioning of the European Union
33. Declaration on Article 158 of the Treaty on the Functioning of the European Union
34. Declaration on Article 163 of the Treaty on the Functioning of the European Union
35. Declaration on Article 176 A of the Treaty on the Functioning of the European Union
36. Declaration on Article 188 N of the Treaty on the Functioning of the European Union concerning the negotiation and conclusion of international agreements by Member States relating to the area of freedom, security and justice
37. Declaration on Article 188 R of the Treaty on the Functioning of the European Union
38. Declaration on Article 222 of the Treaty on the Functioning of the European Union regarding the number of Advocates-General in the Court of Justice
39. Declaration on Article 249 B of the Treaty on the Functioning of the European Union
40. Declaration on Article 280 D of the Treaty on the Functioning of the European Union
41. Declaration on Article 308 of the Treaty on the Functioning of the European Union
42. Declaration on Article 308 of the Treaty on the Functioning of the European Union
43. Declaration on Article 311a(6) of the Treaty on the Functioning of the European Union
B. Declarations concerning Protocols annexed to the Treaties
44. Declaration on Article 5 of the Protocol on the Schengen acquis integrated into the framework of the European Union
45. Declaration on Article 5(2) of the Protocol on the Schengen acquis integrated into the framework of the European Union
46. Declaration on Article 5(3) of the Protocol on the Schengen acquis integrated into the framework of the European Union
47. Declaration on Article 5(3), (4) and (5) of the Protocol on the Schengen acquis integrated into the framework of the European Union
48. Declaration concerning the Protocol on the position of Denmark
49. Declaration concerning Italy
50. Declaration concerning Article 10 of the Protocol on transitional provisions
***
Then there are the unilateral Declarations, by one or more member states, without legal force for the whole, but expressing the political intent of the declarants.
Furthermore, the Conference has noted the declarations listed hereafter and annexed to this Final Act:
51. Declaration by the Kingdom of Belgium on national Parliaments
52. Declaration by the Kingdom of Belgium, the Republic of Bulgaria, the Federal Republic of Germany, the Hellenic Republic, the Kingdom of Spain, the Italian Republic, the Republic of Cyprus, the Republic of Lithuania, the Grand-Duchy of Luxembourg, the Republic of Hungary, the Republic of Malta, the Republic of Austria, the Portuguese Republic, Romania, the Republic of Slovenia, and the Slovak Republic on the symbols of the European Union
53. Declaration by the Czech Republic on the Charter of Fundamental Rights of the European Union
54. Declaration by the Federal Republic of Germany, Ireland, the Republic of Hungary, the Republic of Austria and the Kingdom of Sweden
55. Declaration by the Kingdom of Spain and the United Kingdom of Great Britain and Northern Ireland
56. Declaration by Ireland on Article 3 of the Protocol on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice
57. Declaration by the Italian Republic on the composition of the European Parliament
58. Declaration by the Republic of Latvia, the Republic of Hungary and the Republic of Malta on the spelling of the name of the single currency in the Treaties
59. Declaration by the Kingdom of the Netherlands on Article 270a of the Treaty on the Functioning of the European Union
60. Declaration by the Kingdom of the Netherlands on Article 311a of the Treaty on the Functioning of the European Union
61. Declaration by the Republic of Poland on the Charter of Fundamental Rights of the European Union
62. Declaration by the Republic of Poland concerning the Protocol on the application of the Charter of Fundamental Rights of the European Union in relation to Poland and the United Kingdom
63. Declaration by the United Kingdom of Great Britain and Northern Ireland on the definition of the term ‘nationals’
64. Declaration by the United Kingdom of Great Britain and Northern Ireland on the franchise for elections to the European Parliament
65. Declaration by the United Kingdom of Great Britain and Northern Ireland on Article 61 H of the Treaty on the Functioning of the European Union
***
If my understanding is correct, the only legally binding addition to the Treaties themselves and the Protocols is the Annex containing the tables of equivalences. Thus, there is no change concerning the political nature of the Declarations annexed to the Final Act, but not to the Treaties.
Ralf Grahn
Sources:
UK House of Commons Library Research Paper 08/09, 24 January 2008: The Treaty of Lisbon: amendments to the Treaty on European Union
http://www.parliament.uk/commons/lib/research/rp2008/rp08-009.pdf
Government of Sweden, Regeringskansliet: Lissabonfördraget, Statsrådsberedningen, Departementsserien (Ds) Ds 2007:48, 20 december 2007
http://www.regeringen.se/sb/d/108/a/94981
Government of Denmark: Lov om aendring af lov om Danmarks tiltraedelse af De Europaeiske Faelleskaber og Den Europaeiske Union (Danmarks ratification af Lissabon-traktaten); Lovforslag nr. L 53, Fremsat den 9. januar 2008 af udenrigsministeren (Per Stig Møller); Bind III
http://www.eu-oplysningen.dk/upload/application/pdf/c510022c/BindIII.pdf
Monday, 17 December 2007
EU Treaty of Lisbon: conferred powers
The Constitution of the United States of America (1787) is a wonder of brevity, made apparent when we read the Treaty on European Union (TEU) and the Treaty establishing the European Community (TEC).
The European Treaties have tried to define the respective powers of the EU / EC and the Member States in minute detail, which has led to unwieldy texts for the poor reader. Still, it is impossible to fix the boundaries exactly, if both the EU and the Member States are going to have powers.
In the United States, the Tenth Amendment states that the “powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people”.
More or less, the same principles apply within the European Community, TEC Article 5, although the people has been conveniently omitted. The Community shall act within the limits of the Treaty and its objectives. In areas, where the Community has been given exclusive powers, the situation is clear, in principle.
In areas of shared power, the objectives of the proposed action have to be weighed against the ability of the Member States to achieve the desired results on their own. If the results can be better achieved by the Community, by reason of the scale of the action or its effects, there may be grounds for Community action. This is the principle of subsidiarity, more or less letting the states including their sub-entities act if they are able to.
In addition, Community action shall be restricted to what is necessary to achieve the objectives of the Treaty. This is the principle of proportionality: to intrude no more than the objectives warrant.
The principles of subsidiarity and proportionality are elaborated further in a Protocol, added to the Treaty of Amsterdam, although it is debatable whether the Protocal clarifies matters substantially.
***
The Treaty of Lisbon merges the European Community into the European Union and consequently the treaty structure is clarified to some degree. The main principles and institutional clauses are found in the amended Treaty on European Union, and the “earthlier” questions of various policy areas are dealt with in the Treaty on the functioning of the European Union (the re-named TEC).
The principles of conferred competences (attributed powers), subsidiarity and proportionality remain essentially the same, but are moved to the amended TEU, where a new Article 3b has been dedicated to them.
Those who fear encroachment on states’ powers, may find pleasure in the fact that the IGC 2007 added the word “only” to the text of paragraph 2, compared to the Constitutional Treaty Article I-11, which offered the wording.
Additional guidelines are found in the Protocol on the application of the principles of subsidiarity and proportionality (CIG 14/07). The new protocol is clearer than the present one, since it is more focused on the procedural aspects of the application of TEU Article 3b.
Nine articles deal with wide consultation before legislative acts are proposed, sending proposals and amendments to national parliaments, appraisal of compliance with the principles of subsidiarity and proportionality in draft legislative acts, reasoned opinions of national parliaments within eight weeks, taking reasoned opinions into account, possible review of a proposed act, jurisdiction for the EU Court of Justice and annual Commission reports on the application of Article 3b.
***
In the Treaty of Lisbon (CIG 14/07) version of the Treaty on European Union (TEU), the following Article 3b has been inserted, replacing Article 5 of the Treaty establishing the European Community (TEC):
Article 3b
The limits of Union competences are governed by the principle of conferral. The use of Union competences is governed by the principles of subsidiarity and proportionality.
Under the principle of conferral, the Union shall act only within the limits of the competences conferred upon it by the Member States in the Treaties to attain the objectives set out therein. Competences not conferred upon the Union in the Treaties remain with the Member States.
Under the principle of subsidiarity, in areas which do not fall within its exclusive competence, the Union shall act only if and insofar as the objectives of the proposed action cannot be sufficiently achieved by the Member States, either at a central level or at a regional and local level, but can rather, by the reason of the scale or effects of the proposed action, be better achieved at Union level.
The institutions of the Union shall apply the principle of subsidiarity as laid down in the Protocol on the application of the principles of subsidiarity and proportionality. National Parliaments ensure compliance with the principle of subsidiarity in accordance with the procedure set out in that Protocol.
Under the principle of proportionality, the content and form of Union action shall not exceed what is necessary to achieve the objectives of the Treaties.
The institutions shall apply the principle of proportionality as laid down in the Protocol on the application of the principles of subsidiarity and proportionality.
***
My next article on the Treaty of Lisbon is going to look at questions concerning the citizens of the European Union more directly, namely the provisions on fundamental rights.
Ralf Grahn
The European Treaties have tried to define the respective powers of the EU / EC and the Member States in minute detail, which has led to unwieldy texts for the poor reader. Still, it is impossible to fix the boundaries exactly, if both the EU and the Member States are going to have powers.
In the United States, the Tenth Amendment states that the “powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people”.
More or less, the same principles apply within the European Community, TEC Article 5, although the people has been conveniently omitted. The Community shall act within the limits of the Treaty and its objectives. In areas, where the Community has been given exclusive powers, the situation is clear, in principle.
In areas of shared power, the objectives of the proposed action have to be weighed against the ability of the Member States to achieve the desired results on their own. If the results can be better achieved by the Community, by reason of the scale of the action or its effects, there may be grounds for Community action. This is the principle of subsidiarity, more or less letting the states including their sub-entities act if they are able to.
In addition, Community action shall be restricted to what is necessary to achieve the objectives of the Treaty. This is the principle of proportionality: to intrude no more than the objectives warrant.
The principles of subsidiarity and proportionality are elaborated further in a Protocol, added to the Treaty of Amsterdam, although it is debatable whether the Protocal clarifies matters substantially.
***
The Treaty of Lisbon merges the European Community into the European Union and consequently the treaty structure is clarified to some degree. The main principles and institutional clauses are found in the amended Treaty on European Union, and the “earthlier” questions of various policy areas are dealt with in the Treaty on the functioning of the European Union (the re-named TEC).
The principles of conferred competences (attributed powers), subsidiarity and proportionality remain essentially the same, but are moved to the amended TEU, where a new Article 3b has been dedicated to them.
Those who fear encroachment on states’ powers, may find pleasure in the fact that the IGC 2007 added the word “only” to the text of paragraph 2, compared to the Constitutional Treaty Article I-11, which offered the wording.
Additional guidelines are found in the Protocol on the application of the principles of subsidiarity and proportionality (CIG 14/07). The new protocol is clearer than the present one, since it is more focused on the procedural aspects of the application of TEU Article 3b.
Nine articles deal with wide consultation before legislative acts are proposed, sending proposals and amendments to national parliaments, appraisal of compliance with the principles of subsidiarity and proportionality in draft legislative acts, reasoned opinions of national parliaments within eight weeks, taking reasoned opinions into account, possible review of a proposed act, jurisdiction for the EU Court of Justice and annual Commission reports on the application of Article 3b.
***
In the Treaty of Lisbon (CIG 14/07) version of the Treaty on European Union (TEU), the following Article 3b has been inserted, replacing Article 5 of the Treaty establishing the European Community (TEC):
Article 3b
The limits of Union competences are governed by the principle of conferral. The use of Union competences is governed by the principles of subsidiarity and proportionality.
Under the principle of conferral, the Union shall act only within the limits of the competences conferred upon it by the Member States in the Treaties to attain the objectives set out therein. Competences not conferred upon the Union in the Treaties remain with the Member States.
Under the principle of subsidiarity, in areas which do not fall within its exclusive competence, the Union shall act only if and insofar as the objectives of the proposed action cannot be sufficiently achieved by the Member States, either at a central level or at a regional and local level, but can rather, by the reason of the scale or effects of the proposed action, be better achieved at Union level.
The institutions of the Union shall apply the principle of subsidiarity as laid down in the Protocol on the application of the principles of subsidiarity and proportionality. National Parliaments ensure compliance with the principle of subsidiarity in accordance with the procedure set out in that Protocol.
Under the principle of proportionality, the content and form of Union action shall not exceed what is necessary to achieve the objectives of the Treaties.
The institutions shall apply the principle of proportionality as laid down in the Protocol on the application of the principles of subsidiarity and proportionality.
***
My next article on the Treaty of Lisbon is going to look at questions concerning the citizens of the European Union more directly, namely the provisions on fundamental rights.
Ralf Grahn
Subscribe to:
Posts (Atom)
Subscribe To Grahnlaw
Posts
All Comments
