EU aid for trans-European networks (TENs)

The European Union contributes to the establishment and development of trans-European networks (TENs) in the areas of transport, telecommunications and energy infrastructures.

The EU can contribute by granting aid to projects of common interest. The EU aims at promoting the interconnection and interoperability of national networks as well as access to such networks.

A new codified Regulation 67/2010 on TEN aid has now been officially published, but because it was adopted before the Lisbon Treaty entered into force it refers to Community financial aid and to the EC Treaty:



REGULATION (EC) No 67/2010 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 30 November 2009 laying down general rules for the granting of Community financial aid in the field of trans-European networks (codified version); published in the Official Journal of the European Union (OJEU) 30.1.2010 L 27/20.


Lisbon Treaty – TFEU


Now that the Lisbon Treaty has entered into force, the provisions on trans-European networks are found in Title XVI of Part Three of the Treaty on the Functioning of the European Union, Articles 170 to 172 TFEU (OJEU 9.5.2008 C 115/124-125).




Ralf Grahn







P.S.The judgments of the Court of Justice of the European Union and other legal developments within the EU are of pan-European interest.

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EU: TIR Convention 1975 amendments proposed

The Customs Convention on the international transport of goods under cover of TIR carnets (TIR Convention) of 14 November 1975 was approved on behalf of the European Economic Community by way of Council Regulation (EEC) No 2112/78. The Convention entered into force in the Community on 20 June 1983.

The Commission has now published a proposal for the European Community (European Union) to adopt the latest amendments to the TIR Convention agreed by the United Nations Economic Commission for Europe (UNECE) Working Party on Customs Questions Affecting Transport.

The UNECE Working Party on Customs Questions Affecting Transport agreed that some modifications of the TIR Convention are necessary. These modifications concern mainly articles that deal with the financial responsibility and recovery of the customs debt. By reorganizing and clarifying the relevant articles the procedure is easier to understand and to apply. Other amendments that were proposed introduce in the text of the Convention the definition of the international organization and clearly define the process of authorization of this organization to organize the international guarantee chain.


The Commission’s Proposal for a Council Decision on the position to be taken by the Community concerning the proposal to amend the Customs Convention on the International Transport of goods under cover of TIR carnets (TIR Convention 1975) (Brussels, 26.5.2009, COM(2009) 239 final).







Ralf Grahn

EU: Social rules in road transport (infringements & penalties)

The Commission has published a report on the penalties for serious infringements against the social rules in road transport provided for in the legislation of the Member States, as required by Article 10 of Directive 2006/22/EC on minimum conditions for the implementation of social legislation relating to road transport activities.

The infringements concern two regulations.


Regulation (EC) No 561/2006 on the harmonisation of certain social legislation relating to road transport contains very precise rules on the maximum driving times and the minimum rest periods and breaks for drivers engaged in professional transport.

Regulation (EEC) No 3821/85 on recording equipment in road transport concerns the instalment and use of the tachograph.


***


Penalties for infringements


Regulation (EC) No 561/2006 requires Member States to lay down rules on penalties applicable to infringements of both Regulations. The penalties have to be effective, proportionate, dissuasive and non-discriminatory.

Recital 26 of the Regulation states in addition that the possibility of immobilising the vehicle where serious infringements are detected should also be included within the common range of measures open to member states.

However, there is no definition in the Regulation of what should be considered a serious infringement.

Directive 2006/22/EC originally contained an Annex III with a non-exhaustive list of what is to be regarded as an infringement. This Annex III has recently been replaced by a new Annex by way of Commission Directive 2009/5/EC. This new Annex III contains guidelines on the categorisation of infringements against the two Regulations.


***

Conclusions


The Commission’s analysis reaches the conclusion that the penalties for serious infringements vary too much between the EU member states (page 7 and 8):

The rules on penalties applicable to serious infringements of the social legislation vary appreciably between Member States as regards the types of penalties, the level of fines and the categorisation of infringements.

While all Member States use fines as a penalty, not all of them provide for the immobilization of vehicles or imprisonment, for example. In some Member States, withdrawal of a driver’s driving licence or driver card is possible.

When looking at how the Member States grade the different types or levels of infringements, the situation becomes even more complex. The amounts of the fines vary significantly between Member States, in extreme cases by as much as 1:10. These differences can only be partly explained by the socio-economic differences that make the same fine proportionate and dissuasive in one country but not necessarily in another.

While for infringements against the driving times and rest periods, it is rather clear which infringements has to be considered to be more serious than another, the categorisation of infringements varies considerably between Member States for infringements against Regulation (EEC) No 3821/85. Some infringements are seen as serious infringements in one country, but not necessarily in another.

Moreover, the penalties applied for infringement of the rules of Regulation (EEC) No 3821/85 do not correspond in many Member States with the Community guidelines on the categorisation of infringements as contained in Commission Directive 2009/5/EC amending Annex III to Directive 2006/22/EC.

For drivers and undertakings engaged in international transport, it is therefore very difficult to receive a clear message concerning the gravity of possible infringements when they do not comply with certain provisions of Regulation (EC) No 561/2006 and Regulation (EEC) No 3821/85, as the penalties they risk in the different Member States give contradictory feedback.

The Commission considers this situation resulting of the decisions of the legislators to be unsatisfactory in terms of equal conditions for drivers and undertakings. The new Annex to Directive 2006/22/EC, introduced by Commission Directive 2009/5/EC, provides a basis for a common understanding of what should be considered as serious infringement and what not.

Member States are encouraged to take the necessary steps to provide for more harmonised application of the social rules in road transport and thus to improve observance of the social rules in road transport.

The Commission will continue to work on this issue, in particular by supporting dialogue between Member States concerning national interpretation and application of the social rules in road transport through the Committee foreseen in Regulation (EC) No 561/2006, and taking into account the limits of the competence that Member States and the legislators have decided to give to the Commission.



***

Source

Report from the Commission Analysing the penalties for serious infringements against the social rules in road transport, as provided for in the legislation of the Member States; Brussels, 15.5.2009, COM(2009) 225 final.




Ralf Grahn

EU: Aviation security charges (methods)

The Commission proposes a new Directive: Proposal for a Directive on aviation security charges (Brussels, 11.5.2009 COM(2009) 217 final).




The procedure number to follow is 2009/0063 (COD).


The proposal is accompanied by two documents SEC(2009) 615 final and SEC(2009) 616 final, not yet posted on Eur-Lex under Preparatory acts > SEC documents.




***

Comments on search


Without going into the substance of these security charges, important for the aviation industry, one can see how the Commission proposals have been evolving over time.

Having the procedure number from the outset makes it easy to follow the procedure (PreLex, Legislative Observatory).

Impact assessments, policy options as well as subsidiarity and proportionality are discussed, among others.


***

Transport – legal base

Transport is a somewhat special policy area of the European Community, seen to have its distinctive features, so the legal base of the proposed Directive is not in the general provisions on harmonisation (approximation) in the internal market, but specifically Article 80(2) of the Treaty establishing the European Community (TEC):


Article 80 TEC

1. The provisions of this title shall apply to transport by rail, road and inland waterway.

2. The Council may, acting by a qualified majority, decide whether, to what extent and by what procedure appropriate provisions may be laid down for sea and air transport.

The procedural provisions of Article 71 shall apply.


***


As we see, there is some method to this madness.




Ralf Grahn

European Union: Transport competition

Looking for amendments to European Union (European Community) legislation is time-consuming. Reading disjointed versions is laborious and prone to errors, especially if several amendments have been made.
Updated and readable legal acts are therefore important for users. Issuing codified versions or at least publishing consolidations of amended legal acts are means to save time and effort for businesses and their advisors.

***

Transport competition

One example of such a tidying-up exercise in the field of rail, road and inland waterway transport is:

Council Regulation (EC) No 169/2009 of 26 February 2009 applying rules of competition to transport by rail, road and inland waterway (Codified version), has been published in the Official Journal of the European Union (OJEU) 5.3.2009 L 61/1.

The scope of this Regulation, based on Article 83 of the Treaty establishing the European Community (TEC) and with EEA relevance, is:

Article 1
Scope

The provisions of this Regulation shall, in the field of transport by rail, road and inland waterway, apply both to all agreements, decisions and concerted practices which have as their object or effect the fixing of transport rates and conditions, the limitation or control of the supply of transport, the sharing of transport markets, the application of technical improvements or technical cooperation, or the joint financing or acquisition of transport equipment or supplies where such operations are directly related to the provision of transport services and are necessary for the joint operation of services by a grouping within the meaning of Article 3 of road or inland waterway transport undertakings, and to the abuse of a dominant position on the transport market. These provisions shall apply also to operations of providers of services ancillary to transport which have any of those objects or effects.


***

Balancing act

In principle, the competition rules of the European Community (Articles 81 and 82 TEC) are general, but Article 83(2)(c) provides for rules which take into account ‘the various branches of the economy’. The treaty sees transport as a distinct area, with its special features (Title V), so the rules balance between competition principles and what are perceived as branch concerns.


Ralf Grahn

EU Procurement Directive: Excluded transport services

The general European Community (European Union) Procurement Directive 2004/18/EC, also known as the Classic Directive, does not apply to public contracts in the special sectors covered by the Utilities Directive 2004/17/EC.

Here we look at excluded transport services.



***

Article 12 Procurement Directive

Article 12 of the Procurement Directive 2004/18/EC excludes the sectors to which the so called Utilities Directive 2004/17/EC applies as ‘lex specialis’: water, energy, transport and postal services:

S e c t i o n 3
Excluded contracts

Article 12
Contracts in the water, energy, transport and postal services sectors

This Directive shall not apply to public contracts which, under Directive 2004/17/EC, are awarded by contracting authorities exercising one or more of the activities referred to in Articles 3 to 7 of that Directive and are awarded for the pursuit of those activities, or to public contracts excluded from the scope of that Directive under Article 5(2) and Articles 19, 26 and 30 thereof.

However, this Directive shall continue to apply to public contracts awarded by contracting authorities carrying out one or more of the activities referred to in Article 6 of Directive 2004/17/EC and awarded for those activities, insofar as the Member State concerned takes advantage of the option referred to in the second subparagraph of Article 71 thereof to defer its application.


***

Exclusion of utilities explained

Recital 20 of the Procurement Directive refers to Directive 2004/17/EC, the so called Utilities Directive, and explains the exclusion of specific sectors from the Procurement Directive:

(20) Public contracts which are awarded by the contracting authorities operating in the water, energy, transport and postal services sectors and which fall within the scope of those activities are covered by Directive 2004/17/EC of the European Parliament and of the Council of 31 March 2004 coordinating the procurement procedures of entities operating in the water, energy, transport and postal services sectors. However, contracts awarded by the contracting authorities in the context of their service activities for maritime, coastal or river transport must fall within the scope of this Directive.


***


Transport services excluded (and included)

The headline ‘water, energy, transport and postal services sectors’ gives us a rough indication of the activities, which fall under the Utilities Directive 2004/17/EC, but the scope of the Utilities Directive needs to be defined in order to determine when this Directive takes precedence.

The Utilities Directive is the primary source concerning public contracts awarded by contracting authorities exercising one or more of the activities referred to in Articles 3 to 7 of that Directive and awarded for the pursuit of those activities.

Transport services are excluded from the general Procurement Directive insofar as they are covered by the Utilities Directive. Article 5 of the Utilities Directive determines the transport service contracts covered by that Directive (subject to further precisions):




Article 5 Utilities Directive
Transport services

1. This Directive shall apply to activities relating to the provision or operation of networks providing a service to the public in the field of transport by railway, automated systems, tramway, trolley bus, bus or cable.

As regards transport services, a network shall be considered to exist where the service is provided under operating conditions laid down by a competent authority of a Member State, such as conditions on the routes to be served, the capacity to be made available or the frequency of the service.

2. This Directive shall not apply to entities providing bus transport services to the public which were excluded from the scope of Directive 93/38/EEC pursuant to Article 2(4) thereof.


***

Bus transport services

Article 2(4) of the old Utilities Directive 93/38/EEC excluded bus transport services where free competition between bus services existed:

4. The provision of bus transport services to the public shall not be considered to be a relevant activity within the meaning of paragraph 2(c) where other entities are free to provide those services, either in general or in a particular geographical area, under the same condition as the contracting entities.

***

Article 5(2) of the current Utilities Directive 2004/17/EC states that the same exemption continues to exist.



Ralf Grahn

EU Law: TEN legislation

Guidelines and measures concerning trans-European transport, energy and telecommunications networks (TEN) are adopted by the co-decision procedure, renamed the ordinary legislative procedure in the Treaty of Lisbon.

Some Commission documents illustrate the state of the play.




***


Article 156 TEC

Article 156 TEC (ex Article 129d) on trans-European networks (TEN) refers to the guidelines and measures mentioned in Article 155(1) TEC, which concern:

— establishing a series of guidelines covering the objectives, priorities and broad lines of measures envisaged in the sphere of trans-European networks; these guidelines shall identify projects of common interest,

— implementing any measures that may prove necessary to ensure the interoperability of the networks, in particular in the field of technical standardisation,

— supporting projects of common interest supported by Member States, which are identified in the framework of the guidelines referred to in the first indent, particularly through feasibility studies, loan guarantees or interest-rate subsidies; the Community may also contribute, through the Cohesion Fund set up pursuant to Article 161, to the financing of specific projects in Member States in the area of transport infrastructure.

The Community's activities shall take into account the potential economic viability of the projects.

According to Article 156(1) TEC these guidelines and measures are adopted by the procedure referred to in Article 251 (codecision).

When guidelines and projects of common interest relate to the territory of a member state, the approval of that state is needed. This gives the member state a veto power over these acts. If the guidelines or projects relate to the territories of all member states, every member state has a veto.




Here is the current Article 156 of the Treaty establishing the European Community (TEC), as published in the latest consolidated version of the treaties, OJ 29.12.2006 C 321 E/117:

(TITLE XV
TRANS-EUROPEAN NETWORKS)

Article 156 TEC

The guidelines and other measures referred to in Article 155(1) shall be adopted by the Council, acting in accordance with the procedure referred to in Article 251 and after consulting the Economic and Social Committee and the Committee of the Regions.

Guidelines and projects of common interest which relate to the territory of a Member State shall require the approval of the Member State concerned.



***


Original Lisbon Treaty (ToL)

Although the Treaty of Lisbon is unreadable on its own, it spells out how or if the current treaties are amended.

Sometimes there are no specific amendments, although most of the times one or more of the horizontal amendments apply.

Article 2, point 128 of the Lisbon Treaty dealt with consumer protection in Article 153 TEC and point 129 concerns industry, in Article 157 TEC (OJ 17.12.2007 C 306/84).

In other words, Articles 154 to 156 TEC (ex Articles 129b, 129c and 129d) with provisions on trans-European networks are unaffected by specific amendments.


***


Renumbering ToL

The Table of equivalences of the original Treaty of Lisbon tells us that Title XV first became Title XV in the TFEU (ToL), but renumbered Title XVI Trans-European networks in the consolidated version.

Article 156 TEC initially became Article 156 TFEU (ToL) before the renumbering of the treaty made it into Article 172 TFEU in the consolidated version (OJ 17.12.2007 C 306/217).


***


Lisbon Treaty consolidated

Article 172 TFEU

After renumbering the Title and the Article as well as the referral and the customary (horizontal) replacement of the procedure referred to in Article 251 by the ordinary legislative procedure, Article 172 TFEU appears like this in the consolidated version of the Treaty of Lisbon (OJ 9.5.2008 C 115/125):


(TITLE XVI
TRANS-EUROPEAN NETWORKS)

Article 172 TFEU
(ex Article 156 TEC)

The guidelines and other measures referred to in Article 171(1) shall be adopted by the European Parliament and the Council, acting in accordance with the ordinary legislative procedure and after consulting the Economic and Social Committee and the Committee of the Regions.

Guidelines and projects of common interest which relate to the territory of a Member State shall require the approval of the Member State concerned.



***



EU powers in general

The powers of the European Union are attributed or conferred by the member states through the treaties. The Treaty of Lisbon makes an effort to present the different categories of competence (as they are modestly called) in a systematic manner.

The taxonomy (categories) of EU competence is set out in Article 2 TFEU. The three main or general categories are exclusive competence in 2(1), shared competence in 2(2) as well as supporting, coordinating or supplementing competences in 2(5), although the exact scope and arrangements are laid out in the various treaty provisions as stated in 2(6):

Article 2 TFEU

1. When the Treaties confer on the Union exclusive competence in a specific area, only the Union may legislate and adopt legally binding acts, the Member States being able to do so themselves only if so empowered by the Union or for the implementation of Union acts.

2. When the Treaties confer on the Union a competence shared with the Member States in a specific area, the Union and the Member States may legislate and adopt legally binding acts in that area. The Member States shall exercise their competence to the extent that the Union has not exercised its competence. The Member States shall again exercise their competence to the extent that the Union has decided to cease exercising its competence.

3. The Member States shall coordinate their economic and employment policies within arrangements as determined by this Treaty, which the Union shall have competence to provide.

4. The Union shall have competence, in accordance with the provisions of the Treaty on European Union, to define and implement a common foreign and security policy, including the progressive framing of a common defence policy.

5. In certain areas and under the conditions laid down in the Treaties, the Union shall have competence to carry out actions to support, coordinate or supplement the actions of the Member States, without thereby superseding their competence in these areas.

Legally binding acts of the Union adopted on the basis of the provisions of the Treaties relating to these areas shall not entail harmonisation of Member States' laws or regulations.

6. The scope of and arrangements for exercising the Union's competences shall be determined by the provisions of the Treaties relating to each area.



***

Article 4 TFEU: Taxonomy of powers

As an area of shared competence between the EU and the member states, Article 4(2)(h) mentions trans-European networks.
Because the TENs can be seen as flanking measures to other aims and policies, we can mention the internal market, economic, social and territorial cohesion, transport and energy among the competences listed as shared in Article 4 TFEU:

Article 4 TFEU

1. The Union shall share competence with the Member States where the Treaties confer on it a competence which does not relate to the areas referred to in Articles 3 and 6.

2. Shared competence between the Union and the Member States applies in the following principal areas:

(a) internal market;

(b) social policy, for the aspects defined in this Treaty;

(c) economic, social and territorial cohesion;

(d) agriculture and fisheries, excluding the conservation of marine biological resources;

(e) environment;

(f) consumer protection;

(g) transport;

(h) trans-European networks;

(i) energy;

(j) area of freedom, security and justice;

(k) common safety concerns in public health matters, for the aspects defined in this Treaty.

3. In the areas of research, technological development and space, the Union shall have competence to carry out activities, in particular to define and implement programmes; however, the exercise of that competence shall not result in Member States being prevented from exercising theirs.

4. In the areas of development cooperation and humanitarian aid, the Union shall have competence to carry out activities and conduct a common policy; however, the exercise of that competence shall not result in Member States being prevented from exercising theirs.

***

Absentee: Telecommunications

The reader may have noticed that the areas of competence listed as exclusive, shared or supporting do not mention telecommunications specifically.

While other infrastructure relies heavily on public financing, investment in telecommunications networks is expected to come mainly from the liberalised markets (with the exception of remote and sparsely populated areas).

***

Summary of legislation: Trans-European networks

On the Commission’s Scadplus web pages with summaries of legislation, the page Trans-European networks offers links to pages with guidelines concerning transport, energy and telecommunications networks, including Community funding:

http://europa.eu/scadplus/leg/en/s06019.htm

***

Financial aid

General rules are found on the web page Community financial aid to trans-European networks (last update 6 April 2007):

http://europa.eu/scadplus/leg/en/lvb/l24096.htm

***

New integrated approach

For an assessment and a forward look at trans-European networks, you can read the Communication from the Commission Trans-European networks: Towards an integrated approach (21.3.2007, COM(2007) 135 final):

http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2007:0135:FIN:EN:PDF

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New initiatives 2008

Here are some Commission papers on TEN issues in 2008:

Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions - Legal Framework for Mobile TV Networks and Services: Best Practice for Authorisation – The EU Model; COM(2008) 845 final

Proposal for a Council Decision on establishing the European Community position within the Ministerial Council of the Energy Community (Tirana, 11 December 2008); COM(2008) 783 final

Green Paper - Towards a secure, sustainable and competitive European energy network; COM(2008) 782 final

Report from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions on the implementation of the trans-European energy networks programme in the period 2002-2006 Pursuant to Article 16 of Regulation 2236/1995/EC; COM(2008) 770 final

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For ease of use, here are the references to the transport, energy and telecommunications networks mentioned in yesterday’s post:

TEN-T (transport networks)

Community guidelines for the development of the trans-European transport network (last update 29 January 2008):

http://europa.eu/scadplus/leg/en/lvb/l24094.htm


Interoperability of the trans-European high-speed rail system (last update 9 April 2008):

http://europa.eu/scadplus/leg/en/lvb/l24095.htm


Interoperability of the trans-European conventional rail system (last update 24 November 2005):

http://europa.eu/scadplus/leg/en/lvb/l24229.htm



Satellite navigation: Galileo (last update 13 January 2006):

http://europa.eu/scadplus/leg/en/lvb/l24205.htm


Galileo Joint Undertaking (last update 2 August 2007):

http://europa.eu/scadplus/leg/en/lvb/l24098.htm


***

TEN-E (energy networks)

Trans-European energy networks (last update 5 April 2008) on new guidelines:

http://europa.eu/scadplus/leg/en/lvb/l27066.htm
***

eTEN (TEN-Telecom) (telecommunications networks)

Guidelines for trans-European telecommunications networks (last update 23 May 2007):

http://europa.eu/scadplus/leg/en/lvb/l24145.htm

***

Commission activities

Commission activities and news can be approached through the web page Trans-European Networks:
http://ec.europa.eu/ten/index_en.html

For a more detailed view, you have to look at the different sectors.


Transport (TEN-T):

http://ec.europa.eu/transport/infrastructure/index_en.htm


Energy (TEN-E):

http://ec.europa.eu/energy/infrastructure/index_en.htm


Telecommunications (eTEN):

http://ec.europa.eu/information_society/activities/eten/index_en.htm

The projects under the eTEN umbrella are drawing to a close. You can read the eTEN Newsletter Quarter 4 – 2008:

http://ec.europa.eu/information_society/activities/eten/newsletters/q4_2008.htm

These first references do not give instant answers concerning the possible current role of the European Union with regard to telecommunications networks, but the web page Telecoms in the European Union refers to both telecoms networks and services:

http://ec.europa.eu/information_society/policy/ecomm/index_en.htm .


Ralf Grahn

EU Law: Trans-European Network action

Article 155 TEC

Article 155 TEC (ex Article 129c) spells out the activities of the European Community and the member states to achieve the aims of the trans-European networks (TEN).

A main activity for the European Community (European Union) is to identify projects of common interest.

Standardisation is important to ensure interoperability of networks.

Support measures are envisioned for projects of common interest, taking into account their economic viability.

The member states coordinate their network policies, with the support of the Commission.

International cooperation is foreseen with third countries.

Here is the current Article 15 of the Treaty establishing the European Community (TEC), as published in the latest consolidated version of the treaties, OJ 29.12.2006 C 321 E/116–117:

(TITLE XV
TRANS-EUROPEAN NETWORKS)

Article 155 TEC

1. In order to achieve the objectives referred to in Article 154, the Community:

— shall establish a series of guidelines covering the objectives, priorities and broad lines of measures envisaged in the sphere of trans-European networks; these guidelines shall identify projects of common interest,

— shall implement any measures that may prove necessary to ensure the interoperability of the networks, in particular in the field of technical standardisation,

— may support projects of common interest supported by Member States, which are identified in the framework of the guidelines referred to in the first indent, particularly through feasibility studies, loan guarantees or interest-rate subsidies; the Community may also contribute, through the Cohesion Fund set up pursuant to Article 161, to the financing of specific projects in Member States in the area of transport infrastructure.

The Community's activities shall take into account the potential economic viability of the projects.

2. Member States shall, in liaison with the Commission, coordinate among themselves the policies pursued at national level which may have a significant impact on the achievement of the objectives referred to in Article 154. The Commission may, in close cooperation with the Member State, take any useful initiative to promote such coordination.

3. The Community may decide to cooperate with third countries to promote projects of mutual interest and to ensure the interoperability of networks.


***


Original Lisbon Treaty (ToL)

Although the Treaty of Lisbon is unreadable on its own, it spells out how or if the current treaties are amended.
Sometimes there are no specific amendments, although most of the times one or more of the horizontal amendments apply.

Article 2, point 128 of the Lisbon Treaty dealt with consumer protection in Article 153 TEC and point 129 concerns industry, in Article 157 TEC (OJ 17.12.2007 C 306/84).
In other words, Articles 154 to 156 TEC (ex Articles 129b, 129c and 129d) with provisions on trans-European networks were not affected by specific amendments.


***


Renumbering ToL

The Table of equivalences of the original Treaty of Lisbon tells us that Title XV first became Title XV in the TFEU (ToL), but renumbered Title XVI Trans-European networks in the consolidated version.

Article 155 TEC initially became Article 155 TFEU (ToL) before the renumbering of the treaty made it into Article 171 TFEU in the consolidated version (OJ 17.12.2007 C 306/217).


***


Lisbon Treaty consolidated

Article 171 TFEU

After renumbering the Title and the Article as well as the referrals and the customary (horizontal) replacement of Community by Union, Article 171 TFEU shapes up like this in the consolidated version of the Treaty of Lisbon (OJ 9.5.2008 C 115/125):


(TITLE XVI
TRANS-EUROPEAN NETWORKS)

Article 171 TFEU
(ex Article 155 TEC)

1. In order to achieve the objectives referred to in Article 170, the Union:

— shall establish a series of guidelines covering the objectives, priorities and broad lines of measures envisaged in the sphere of trans-European networks; these guidelines shall identify projects of common interest,

— shall implement any measures that may prove necessary to ensure the interoperability of the networks, in particular in the field of technical standardisation,

— may support projects of common interest supported by Member States, which are identified in the framework of the guidelines referred to in the first indent, particularly through feasibility studies, loan guarantees or interest-rate subsidies; the Union may also contribute, through the Cohesion Fund set up pursuant to Article 177, to the financing of specific projects in Member States in the area of transport infrastructure.

The Union's activities shall take into account the potential economic viability of the projects.

2. Member States shall, in liaison with the Commission, coordinate among themselves the policies pursued at national level which may have a significant impact on the achievement of the objectives referred to in Article 170. The Commission may, in close cooperation with the Member State, take any useful initiative to promote such coordination.

3. The Union may decide to cooperate with third countries to promote projects of mutual interest and to ensure the interoperability of networks.



***



EU powers

The powers of the European Union are attributed or conferred by the member states through the treaties. The Treaty of Lisbon makes an effort to present the different categories of competence (as they are modestly called) in a systematic manner.

The taxonomy (categories) of EU competence is set out in Article 2 TFEU. The three main or general categories are exclusive competence in 2(1), shared competence in 2(2) as well as supporting, coordinating or supplementing competences in 2(5), although the exact scope and arrangements are laid out in the various treaty provisions as stated in 2(6):

Article 2 TFEU

1. When the Treaties confer on the Union exclusive competence in a specific area, only the Union may legislate and adopt legally binding acts, the Member States being able to do so themselves only if so empowered by the Union or for the implementation of Union acts.

2. When the Treaties confer on the Union a competence shared with the Member States in a specific area, the Union and the Member States may legislate and adopt legally binding acts in that area. The Member States shall exercise their competence to the extent that the Union has not exercised its competence. The Member States shall again exercise their competence to the extent that the Union has decided to cease exercising its competence.

3. The Member States shall coordinate their economic and employment policies within arrangements as determined by this Treaty, which the Union shall have competence to provide.

4. The Union shall have competence, in accordance with the provisions of the Treaty on European Union, to define and implement a common foreign and security policy, including the progressive framing of a common defence policy.

5. In certain areas and under the conditions laid down in the Treaties, the Union shall have competence to carry out actions to support, coordinate or supplement the actions of the Member States, without thereby superseding their competence in these areas.

Legally binding acts of the Union adopted on the basis of the provisions of the Treaties relating to these areas shall not entail harmonisation of Member States' laws or regulations.

6. The scope of and arrangements for exercising the Union's competences shall be determined by the provisions of the Treaties relating to each area.



***

Article 4 TFEU

As an area of shared competence between the EU and the member states, Article 4(2)(h) mentions trans-European networks.

Because the TENs can be seen as flanking measures to other aims and policies, we can mention the internal market, economic, social and territorial cohesion, transport and energy among the competences listed as shared in Article 4 TFEU:

Article 4 TFEU

1. The Union shall share competence with the Member States where the Treaties confer on it a competence which does not relate to the areas referred to in Articles 3 and 6.

2. Shared competence between the Union and the Member States applies in the following principal areas:

(a) internal market;

(b) social policy, for the aspects defined in this Treaty;

(c) economic, social and territorial cohesion;

(d) agriculture and fisheries, excluding the conservation of marine biological resources;

(e) environment;

(f) consumer protection;

(g) transport;

(h) trans-European networks;

(i) energy;

(j) area of freedom, security and justice;

(k) common safety concerns in public health matters, for the aspects defined in this Treaty.

3. In the areas of research, technological development and space, the Union shall have competence to carry out activities, in particular to define and implement programmes; however, the exercise of that competence shall not result in Member States being prevented from exercising theirs.

4. In the areas of development cooperation and humanitarian aid, the Union shall have competence to carry out activities and conduct a common policy; however, the exercise of that competence shall not result in Member States being prevented from exercising theirs.

***
Absentee: Telecommunications

The reader may have noticed that the areas of competence listed as exclusive, shared or supporting do not mention telecommunications specifically.

***

Summary of legislation: Trans-European networks

On the Commission’s Scadplus web pages with summaries of legislation, the page Trans-European networks offers links to pages with guidelines concerning transport, energy and telecommunications networks, including Community funding:

http://europa.eu/scadplus/leg/en/s06019.htm

***

Financial aid

General rules are found on the web page Community financial aid to trans-European networks (last update 6 April 2007):

http://europa.eu/scadplus/leg/en/lvb/l24096.htm

***

TEN-T (transport networks)

Community guidelines for the development of the trans-European transport network (last update 29 January 2008):

http://europa.eu/scadplus/leg/en/lvb/l24094.htm


Interoperability of the trans-European high-speed rail system (last update 9 April 2008):

http://europa.eu/scadplus/leg/en/lvb/l24095.htm


Interoperability of the trans-European conventional rail system (last update 24 November 2005):

http://europa.eu/scadplus/leg/en/lvb/l24229.htm



Satellite navigation: Galileo (last update 13 January 2006):

http://europa.eu/scadplus/leg/en/lvb/l24205.htm


Galileo Joint Undertaking (last update 2 August 2007):

http://europa.eu/scadplus/leg/en/lvb/l24098.htm


***

TEN-E (energy networks)

Trans-European energy networks (last update 5 April 2008) on new guidelines:

http://europa.eu/scadplus/leg/en/lvb/l27066.htm

***

eTEN (TEN-Telecom) (telecommunications networks)

Guidelines for trans-European telecommunications networks (last update 23 May 2007):

http://europa.eu/scadplus/leg/en/lvb/l24145.htm







***

Commission activities

Commission activities and news can be approached through the web page Trans-European Networks:

http://ec.europa.eu/ten/index_en.html

For a more detailed view, you have to look at the different sectors.


Transport (TEN-T):

http://ec.europa.eu/transport/infrastructure/index_en.htm


Energy (TEN-E):

http://ec.europa.eu/energy/infrastructure/index_en.htm


Telecommunications (eTEN):

http://ec.europa.eu/information_society/activities/eten/index_en.htm

The projects under the eTEN umbrella are drawing to a close. You can read the eTEN Newsletter Quarter 4 – 2008:

http://ec.europa.eu/information_society/activities/eten/newsletters/q4_2008.htm

These first references do not give instant answers concerning the possible current role of the European Union with regard to telecommunications networks, but the web page Telecoms in the European Union refers to both telecoms networks and services:

http://ec.europa.eu/information_society/policy/ecomm/index_en.htm .


Ralf Grahn

EU Law: Trans-European Networks (TENs)

Since the Roman roads, the importance of good communications has been evident. Transport, energy and telecommunications infrastructure is crucial to the internal market and to cross-border contacts, fostering cohesion.

Although the aims of the European Union seem to be greater than the means, “carrot money” has achieved some progress in improving European networks.

We look at how trans-European networks (TENs) are treated at treaty level, before presenting gateways to further information.


***


Article 154 TEC

Article 154 (ex Article 129b) on trans-European networks links them to the objectives referred to in Articles 14 and 158 TEC.

The objective of Article 14 TEC is the internal market, potentially an area without internal frontiers in which the free movement of goods, persons, services and capital is ensured.

The objective of Article 158 TEC is the strengthening of economic and social cohesion, especially reducing the backwardness of the least favoured regions or islands, including rural areas.

Three crucial areas of infrastructure fall within the scope of TENs: transport, telecommunications and energy networks.

The aim is to achieve cross-border effects, by promoting the interconnection and interoperability of national networks. Access to such networks is also promoted.

In line with the territorial and social cohesion objectives, the need to link island, landlocked and peripheral regions with the central regions of the Community is stressed.




Here is the current Article 154 (ex Article 129b) of the Treaty establishing the European Community (TEC), as published in the latest consolidated version of the treaties, OJ 29.12.2006 C 321 E/116:

TITLE XV
TRANS-EUROPEAN NETWORKS

Article 154 TEC

1. To help achieve the objectives referred to in Articles 14 and 158 and to enable citizens of the Union, economic operators and regional and local communities to derive full benefit from the setting-up of an area without internal frontiers, the Community shall contribute to the establishment and development of trans-European networks in the areas of transport, telecommunications and energy infrastructures.

2. Within the framework of a system of open and competitive markets, action by the Community shall aim at promoting the interconnection and interoperability of national networks as well as access to such networks. It shall take account in particular of the need to link island, landlocked and peripheral regions with the central regions of the Community.


***


Original Lisbon Treaty (ToL)

Although the Treaty of Lisbon is unreadable on its own, it spells out how the current treaties are amended.

Sometimes there are no specific amendments, although most of the times one or more of the horizontal amendments apply.

Article 2, point 128 of the Lisbon Treaty dealt with consumer protection in Article 153 TEC and point 129 concerns industry, in Article 157 TEC (OJ 17.12.2007 C 306/84).

In other words, Articles 154 to 156 TEC (ex Articles 129b, 129c and 129d) with provisions on trans-European networks were not affected by specific amendments.


***


Renumbering ToL

The Table of equivalences of the original Treaty of Lisbon tells us that Title XV first became Title XV in the TFEU (ToL), but renumbered Title XVI Trans-European networks in the consolidated version.

Article 154 TEC initially became Article 154 TFEU (ToL) before the renumbering of the treaty made it into Article 170 TFEU in the consolidated version (OJ 17.12.2007 C 306/217).


***


Lisbon Treaty consolidated

Article 170 TFEU

After renumbering the Title and the Article as well as the referrals and the customary (horizontal) replacement of Community by Union, Article 170 TFEU shapes up like this in the consolidated version of the Treaty of Lisbon (OJ 9.5.2008 C 115/124–125):


TITLE XVI
TRANS-EUROPEAN NETWORKS

Article 170 TFEU
(ex Article 154 TEC)

1. To help achieve the objectives referred to in Articles 26 and 174 and to enable citizens of the Union, economic operators and regional and local communities to derive full benefit from the setting-up of an area without internal frontiers, the Union shall contribute to the establishment and development of trans-European networks in the areas of transport, telecommunications and energy infrastructures.

2. Within the framework of a system of open and competitive markets, action by the Union shall aim at promoting the interconnection and interoperability of national networks as well as access to such networks. It shall take account in particular of the need to link island, landlocked and peripheral regions with the central regions of the Union.


***

Cohesion

Article 170 TFEU refers to Article 174 TFEU, which has undergone a change. The Lisbon Treaty has included territorial cohesion, so the aim is now to strengthen economic, social and territorial cohesion.

(Those interested in this change may wish to look at the activities of Michel Barnier, then Commission member responsible for Regional policy, during the European Convention. Currently Barnier is Minister for Agriculture in the French Government.)

***

EU powers

The powers of the European Union are attributed or conferred by the member states through the treaties. The Treaty of Lisbon makes an effort to present the different categories of competence (as they are modestly called) in a systematic manner.

The categories of EU competence (taxonomy) are set out in Article 2 TFEU. The three main or general categories are exclusive competence in 2(1), shared competence in 2(2) as well as supporting, coordinating or supplementing competences in 2(5), although the exact scope and arrangements are laid out in the various treaty provisions as stated in 2(6):

Article 2 TFEU

1. When the Treaties confer on the Union exclusive competence in a specific area, only the Union may legislate and adopt legally binding acts, the Member States being able to do so themselves only if so empowered by the Union or for the implementation of Union acts.

2. When the Treaties confer on the Union a competence shared with the Member States in a specific area, the Union and the Member States may legislate and adopt legally binding acts in that area. The Member States shall exercise their competence to the extent that the Union has not exercised its competence. The Member States shall again exercise their competence to the extent that the Union has decided to cease exercising its competence.

3. The Member States shall coordinate their economic and employment policies within arrangements as determined by this Treaty, which the Union shall have competence to provide.

4. The Union shall have competence, in accordance with the provisions of the Treaty on European Union, to define and implement a common foreign and security policy, including the progressive framing of a common defence policy.

5. In certain areas and under the conditions laid down in the Treaties, the Union shall have competence to carry out actions to support, coordinate or supplement the actions of the Member States, without thereby superseding their competence in these areas.

Legally binding acts of the Union adopted on the basis of the provisions of the Treaties relating to these areas shall not entail harmonisation of Member States' laws or regulations.

6. The scope of and arrangements for exercising the Union's competences shall be determined by the provisions of the Treaties relating to each area.



***

Article 4 TFEU

As an area of shared competence between the EU and the member states, Article 4(2)(h) mentions trans-European networks.

Because the TENs can be seen as flanking measures to other aims and policies, we can mention the internal market, economic, social and territorial cohesion, transport and energy among the competences listed as shared in Article 4 TFEU:

Article 4 TFEU

1. The Union shall share competence with the Member States where the Treaties confer on it a competence which does not relate to the areas referred to in Articles 3 and 6.

2. Shared competence between the Union and the Member States applies in the following principal areas:

(a) internal market;

(b) social policy, for the aspects defined in this Treaty;

(c) economic, social and territorial cohesion;

(d) agriculture and fisheries, excluding the conservation of marine biological resources;

(e) environment;

(f) consumer protection;

(g) transport;

(h) trans-European networks;

(i) energy;

(j) area of freedom, security and justice;

(k) common safety concerns in public health matters, for the aspects defined in this Treaty.

3. In the areas of research, technological development and space, the Union shall have competence to carry out activities, in particular to define and implement programmes; however, the exercise of that competence shall not result in Member States being prevented from exercising theirs.

4. In the areas of development cooperation and humanitarian aid, the Union shall have competence to carry out activities and conduct a common policy; however, the exercise of that competence shall not result in Member States being prevented from exercising theirs.

***

Absentee: Telecommunications

The reader may have noticed that the areas of competence listed as exclusive, shared or supporting do not mention telecommunications specifically.

***

Summary of legislation: Trans-European networks

On the Commission’s Scadplus web pages with summaries of legislation, the page Trans-European networks offers links to pages with guidelines concerning transport, energy and telecommunications networks, including Community funding:

http://europa.eu/scadplus/leg/en/s06019.htm



***

Commission activities

Commission activities and news can be approached through the web page Trans-European Networks:

http://ec.europa.eu/ten/index_en.html

The TENs are split among the Directorate-General for Energy and Transport and the administratively somewhat more amorphous Information Society pages, so you might want to check them too.


Ralf Grahn

EU TFEU: Land, sea and air transport

The EU Treaty of Lisbon continues to make a distinction between rail, road and inland waterway, to which the TFEU Transport Title applies, and sea and air transport, still treated as optional with regard to EU legislation.


***

Article 100 of the Treaty on the Functioning of the European Union (TFEU) is found in the consolidated version of the Treaty on European Union and the Treaty on the Functioning of the European Union, published in the Official Journal of the European Union, OJ 9.5.2008 C 115/87–88:

Part Three ‘Policies and internal actions of the Union’

Title VI TFEU ‘Transport’

Article 100 TFEU
(ex Article 80 TEC)

1. The provisions of this Title shall apply to transport by rail, road and inland waterway.

2. The European Parliament and the Council, acting in accordance with the ordinary legislative procedure, may lay down appropriate provisions for sea and air transport. They shall act after consulting the Economic and Social Committee and the Committee of the Regions.

***

In Article 2, point 75 of the Treaty of Lisbon (ToL) the intergovernmental conference (IGC 2007) laid out the specific amendments to Article 80 TEC (OJ 17.12.2007 C 306/68).

75) In Article 80, paragraph 2 shall be replaced by the following:

‘2. The European Parliament and the Council, acting in accordance with the ordinary legislative procedure, may lay down appropriate provisions for sea and air transport. They shall act after consulting the Economic and Social Committee and the Committee of the Regions.’.

***

The TFEU table of equivalences tells us that Article 80 TEC first became Article 80 TFEU (ToL), but later renumbered Article 100 TFEU in the consolidated version (OJ 17.12.2007 C 306/210).

***

The current Article 80 of the Treaty establishing the European Community (TEC) is found under Title V ‘Transport’ in the latest consolidated version of the treaties in force (OJ 29.12.2006 C 321 E/73):

Article 80 TEC

1. The provisions of this title shall apply to transport by rail, road and inland waterway.

2. The Council may, acting by a qualified majority, decide whether, to what extent and by what procedure appropriate provisions may be laid down for sea and air transport.

The procedural provisions of Article 71 shall apply.


***

For the sake of a systematic comparison, we look at the Article during the previous treaty reform stages.

First, we turn to the European Convention.

Article III-143 of the draft Treaty establishing a Constitution for Europe looked like this (OJ 18.7.2003 C 169/55):

Article III-143 Draft Constitution

1. This Section shall apply to transport by rail, road and inland waterway.

2. European laws or framework laws may lay down appropriate measures for sea and air transport. They shall be adopted after consultation of the Committee of the Regions and the Economic and Social Committee.

***

Article III-245 of the Treaty establishing a Constitution for Europe adopted the wording of the European Convention without change (OJ 16.12.2004 C 310/108).

***


What has been said about Article 100 TFEU?


United Kingdom

Professor Steve Peers covered the Treaty of Lisbon in a number of Statewatch Analyses. ‘EU Reform Treaty Analysis no. 3.3: Revised text of Part Three, Titles I to VI of the Treaty establishing the European Community (TEC): Internal Market and competition’ (Version 2, 23 October 2007) includes the current Title V Transport.

Peers highlighted the amendment to Article 80 TEC and TFEU (ToL), to be renumbered Article 100 TFEU in the consolidated version, and he added the following comment (page 23):

“In practice, legislation on sea and air transport is already adopted by the co-decisions procedure.”

The analysis 3.3 and other useful Statewatch analyses are available through:

http://www.statewatch.org/euconstitution.htm

***

The Foreign and Commonwealth Office (FCO) offers a convenient source of brief annotations on Lisbon Treaty amendments in ‘A comparative table of the current EC and EU treaties as amended by the Treaty of Lisbon’ (Command Paper 7311, published 21 January 2008). It offers the following comment on Article 100 TFEU, Article 80 TFEU (ToL) in the original Lisbon Treaty (page 11):

“Draws and Article 80 TEC. QMV already applies, co-decision applied to paragraph 2.”

The FCO comparative table is available at:

http://www.official-documents.gov.uk/document/cm73/7311/7311.asp

***

The UK House of Commons Library Research Paper 07/86 ‘The Treaty of Lisbon: amendments to the Treaty establishing the European Community’ (published 6 December 2007) wrapped up Transport in a brief comment on page 56:

“F. Transport

Title V, Articles 70-80 (Constitution Articles III-236 – 245) are on transport and are based largely on Articles 70 – 75 TEC, but with a change in the voting procedure to the OLP with QMV, except for Article 72, which replaces unanimity in the Constitution Article III-237 with a “special legislative procedure”. Other, minor, changes are Article 75(c), which adds the EP to those bodies to be consulted, and Article 78 (Constitution Article III-243), allowing the Article concerning German unification to be repealed after 5 years.

Present Articles 154 – 156 on Trans-European Networks (TENS) have been moved to Title VII and contain only minor amendments.”

The Library Research Paper 07/86 is available at:

http://www.parliament.uk/commons/lib/research/rp2007/rp07-086.pdf

***

The House of Lords European Union Committee report ‘The Treaty of Lisbon: an impact assessment, Volume I: Report’ (HL Paper 62-I, published 13 March 2008) made no explicit reference to Article 100 TFEU.

The report is accessible at:

http://www.publications.parliament.uk/pa/ld200708/ldselect/ldeucom/62/62.pdf

***

Sweden

The consultation paper of the government of Sweden, ‘Lissabonfördraget; Statsrådsberedningen, Departementsserien (Ds), Ds 2007:48’ published 20 December 2007, bundled together transport and trans-European networks under the headline ‘Transporter och transeuropeiska nät’ (page 280 to 282).

The text offers an overview of the coming Title VI ‘Transport’, and it remarks that in practice provisions on air and sea transport are already adopted by co-decision:

”Åtgärder på sjöfarts- respektive luftfartsområdena ska antas i enlighet med det ordinarie lagstiftningsförfarandet (artikel 80.2 i EUF-fördraget). I praktiken antas lagstiftning på områdena redan idag gemensamt av Europaparlamentet och rådet med kvalificerad majoritet.”

The consultation paper ’Lissabonfördraget’ is available at:

http://www.regeringen.se/content/1/c6/09/49/81/107aa077.pdf

***

Finland

The Finnish ratification bill, ‘Hallituksen esitys Eduskunnalle Euroopan unionista tehdyn sopimuksen ja Euroopan yhteisön perustamissopimuksen muuttamisesta tehdyn Lissabonin sopimuksen hyväksymisestä ja laiksi sen lainsäädännön alaan kuuluvien määräysten voimaansaattamisesta’ (HE 23/2008 vp), includes a systematic commentary on the treaty provisions. The explanation on Article 80 TFEU (ToL), renumbered Article 100 TFEU, is one example of this methodical approach (page 206):

”80 artiklan (uusi 100 artikla) 2 kohtaa, joka koskee meri- ja lentoliikenteestä annettavaa säännöstöä, muutetaan siten, että parlamentti ja neuvosto antavat tavallista lainsäätämisjärjestystä noudattaen meri- ja lentoliikennettä koskevat aiheelliset säännökset alueiden komiteaa sekä talous- ja sosiaalikomiteaa kuultuaan. Nykyisen SEY 80 artiklan 2 kohdassa määrätään neuvoston voivan määräenemmistöllä päättää, annetaanko meri- ja lentoliikennettä koskevia aiheellisia säännöksiä sekä missä laajuudessa ja mitä menettelyä noudattaen niitä annetaan, ja että tällöin sovelletaan SEY 71 artiklan määräyksiä menettelystä. SEY 71 artiklassa tarkoitettu menettely vastaa SEUT 80 artiklan 2 kohtaan nyt kirjattavaa menettelyä. SEUT 80 artikla vastaa perustuslakisopimuksen III-245 artiklaa säädösinstrumentin yksilöintiä eurooppalaiksi tai -puitelaiksi lukuun ottamatta.”

The Finnish ratification bill is available at:

http://www.finlex.fi/fi/esitykset/he/2008/20080023.pdf

The Swedish language version of the ratification bill ‘Regeringens proposition till Riksdagen med förslag om godkännande av Lissabonfördraget om ändring av fördraget om Europeiska unionen och fördraget om upprättandet av Europeiska gemenskapen och till lag om sättande i kraft av de bestämmelser i fördraget som hör till området för lagstiftningen’ (RP 23/2008 rd), offers the same observations on page 209:

”Artikel 80.2 (blivande artikel 100), som gäller bestämmelser för sjöfart och luftfart ändras så att parlamentet och rådet i enlighet med det ordinarie lagstiftningsförfarandet får fastställa lämpliga bestämmelser för sjöfart och luftfart efter att ha hört Ekonomiska och sociala kommittén och Regionkommittén. I nuvarande artikel 80.2 i EG-fördraget bestäms att rådet får med kvalificerad majoritet besluta huruvida, i vilken omfattning och på vilket sätt lämpliga bestämmelser ska kunna meddelas för sjöfart och luftfart och att procedurreglerna i artikel 71 ska tillämpas. Det förfarande som avses i artikel 71 i EGfördraget motsvarar det förfarande som nu skrivs in i artikel 80.2 i EUF-fördraget. Artikel 80 i EUF-fördraget motsvarar artikel III- 245 i det konstitutionella fördraget med undantag för att rättsaktsinstrumentet individualiseras som europalag eller ramlag.”

The ratification bill in Swedish can be accessed at:

http://www.finlex.fi/sv/esitykset/he/2008/20080023.pdf

***

The Treaty of Lisbon retains traces of the historical dichotomy between transport in the internal market (by rail, road and inland waterway; first paragraph) and sea and air transport, at least initially more concerned with relations to third countries (second paragraph).



Ralf Grahn

EU TFEU: Transport advisory committee

The EU Treaty of Lisbon retains the advisory committee of national experts on transport matters.


***

Article 99 of the Treaty on the Functioning of the European Union (TFEU) is found in the consolidated version of the Treaty on European Union and the Treaty on the Functioning of the European Union, published in the Official Journal of the European Union, OJ 9.5.2008 C 115/87:

Part Three ‘Policies and internal actions of the Union’

Title VI TFEU ‘Transport’

Article 99 TFEU
(ex Article 79 TEC)

An Advisory Committee consisting of experts designated by the governments of Member States shall be attached to the Commission. The Commission, whenever it considers it desirable, shall consult the Committee on transport matters.

***

In Article 2, point 74 of the Treaty of Lisbon (ToL) the intergovernmental conference (IGC 2007) laid out the specific amendments to Article 79 TEC (OJ 17.12.2007 C 306/68).

74) In Article 79, the phrase ‘without prejudice to the powers of the Economic and Social Committee’ shall be deleted.

***

The TFEU table of equivalences tells us that Article 79 TEC first became Article 79 TFEU (ToL), but later renumbered Article 99 TFEU in the consolidated version (OJ 17.12.2007 C 306/210).

***

The current Article 79 of the Treaty establishing the European Community (TEC) is found under Title V ‘Transport’ in the latest consolidated version of the treaties in force (OJ 29.12.2006 C 321 E/73):

Article 79 TEC

An Advisory Committee consisting of experts designated by the governments of Member States shall be attached to the Commission. The Commission, whenever it considers it desirable, shall consult the Committee on transport matters without prejudice to the powers of the Economic and Social Committee.

***

For the sake of a systematic comparison, we look at the Article during the previous treaty reform stages.

First, we turn to the European Convention.

Article III-142 of the draft Treaty establishing a Constitution for Europe looked like this (OJ 18.7.2003 C 169/55):

Article III-142 Draft Constitution

An Advisory Committee consisting of experts designated by the governments of Member States shall be attached to the Commission. The Commission, whenever it considers it desirable, shall consult the Committee on transport matters.

***

Article III-244 of the Treaty establishing a Constitution for Europe adopted the wording of the European Convention without change (OJ 16.12.2004 C 310/107).

***

We see that the Lisbon Treaty amendment was part of the draft Constitution.

***

What have others said about Article 99 TFEU?


United Kingdom

Professor Steve Peers covered the Treaty of Lisbon in a number of Statewatch Analyses. ‘EU Reform Treaty Analysis no. 3.3: Revised text of Part Three, Titles I to VI of the Treaty establishing the European Community (TEC): Internal Market and competition’ (Version 2, 23 October 2007) includes the current Title V Transport.

Peers highlighted the amendment of Article 79 TEC and TFEU (ToL), to be renumbered Article 99 TFEU in the consolidated version, but made no comment (page 23).

The analysis 3.3 and other useful Statewatch analyses are available through:

http://www.statewatch.org/euconstitution.htm

***

The Foreign and Commonwealth Office (FCO) offers a convenient source of brief annotations on Lisbon Treaty amendments in ‘A comparative table of the current EC and EU treaties as amended by the Treaty of Lisbon’ (Command Paper 7311, published 21 January 2008). It offers the following comment on Article 99 TFEU, Article 79 TFEU (ToL) in the original Lisbon Treaty (page 11):

“In substance the same as Article 79 TEC.”

The FCO comparative table is available at:

http://www.official-documents.gov.uk/document/cm73/7311/7311.asp

***

The UK House of Commons Library Research Paper 07/86 ‘The Treaty of Lisbon: amendments to the Treaty establishing the European Community’ (published 6 December 2007) wrapped up Transport in a brief comment on page 56:

“F. Transport

Title V, Articles 70-80 (Constitution Articles III-236 – 245) are on transport and are based largely on Articles 70 – 75 TEC, but with a change in the voting procedure to the OLP with QMV, except for Article 72, which replaces unanimity in the Constitution Article III-237 with a “special legislative procedure”. Other, minor, changes are Article 75(c), which adds the EP to those bodies to be consulted, and Article 78 (Constitution Article III-243), allowing the Article concerning German unification to be repealed after 5 years.

Present Articles 154 – 156 on Trans-European Networks (TENS) have been moved to Title VII and contain only minor amendments.”

The Library Research Paper 07/86 is available at:

http://www.parliament.uk/commons/lib/research/rp2007/rp07-086.pdf

***

The House of Lords European Union Committee report ‘The Treaty of Lisbon: an impact assessment, Volume I: Report’ (HL Paper 62-I, published 13 March 2008) made no explicit reference to Article 99 TFEU.

The report is accessible at:

http://www.publications.parliament.uk/pa/ld200708/ldselect/ldeucom/62/62.pdf

***

Sweden

The consultation paper of the government of Sweden, ‘Lissabonfördraget; Statsrådsberedningen, Departementsserien (Ds), Ds 2007:48’ published 20 December 2007, bundled together transport and trans-European networks under the headline ‘Transporter och transeuropeiska nät’ (page 280 to 282).

The text offers an overview of the coming Title VI ‘Transport’, but it makes no reference to Article 79 TEC and TFEU (ToL).

The consultation paper ’Lissabonfördraget’ is available at:

http://www.regeringen.se/content/1/c6/09/49/81/107aa077.pdf

***

Finland

The Finnish ratification bill, ‘Hallituksen esitys Eduskunnalle Euroopan unionista tehdyn sopimuksen ja Euroopan yhteisön perustamissopimuksen muuttamisesta tehdyn Lissabonin sopimuksen hyväksymisestä ja laiksi sen lainsäädännön alaan kuuluvien määräysten voimaansaattamisesta’ (HE 23/2008 vp), mentions the words deleted from Article 79 TFEU (ToL), renumbered Article 99 TFEU, and adds the observation that the contents are the same as in ArticleIII-244 of the Constitutional Treaty (page 206).

The Finnish ratification bill is available at:

http://www.finlex.fi/fi/esitykset/he/2008/20080023.pdf

The Swedish language version of the ratification bill ‘Regeringens proposition till Riksdagen med förslag om godkännande av Lissabonfördraget om ändring av fördraget om Europeiska unionen och fördraget om upprättandet av Europeiska gemenskapen och till lag om sättande i kraft av de bestämmelser i fördraget som hör till området för lagstiftningen’ (RP 23/2008 rd), offers the same observations on page 209.

The ratification bill in Swedish can be accessed at:

http://www.finlex.fi/sv/esitykset/he/2008/20080023.pdf



Ralf Grahn

EU TFEU: Transport and Germany

Here is a question for sadistic quizmasters: Can the Council amend the EU Treaty of Lisbon without later ratification by national parliaments?

The answer is ‘yes’ in at least one, highly atypical situation. Article 98 of the Treaty on the Functioning of the European Union offers the Council the possibility to repeal a privilege enjoyed by Germany as a legacy of the division of that country.


***

Article 98 of the Treaty on the Functioning of the European Union (TFEU) is found in the consolidated version of the Treaty on European Union and the Treaty on the Functioning of the European Union, published in the Official Journal of the European Union, OJ 9.5.2008 C 115/87:

Part Three ‘Policies and internal actions of the Union’

Title VI TFEU ‘Transport’

Article 98 TFEU
(ex Article 78 TEC)

The provisions of this Title shall not form an obstacle to the application of measures taken in the Federal Republic of Germany to the extent that such measures are required in order to compensate for the economic disadvantages caused by the division of Germany to the economy of certain areas of the Federal Republic affected by that division. Five years after the entry into force of the Treaty of Lisbon, the Council, acting on a proposal from the Commission, may adopt a decision repealing this Article.

***

In Article 2, point 73 of the Treaty of Lisbon (ToL) the intergovernmental conference (IGC 2007) laid out the specific amendments to Article 78 TEC (OJ 17.12.2007 C 306/68).

73) In Article 78, the following sentence shall be added:

‘Five years after the entry into force of the Treaty of Lisbon, the Council, acting on a proposal
from the Commission, may adopt a decision repealing this Article.’.

***

The TFEU table of equivalences tells us that Article 78 TEC first became Article 78 TFEU (ToL), but later renumbered Article 98 TFEU in the consolidated version (OJ 17.12.2007 C 306/210).

***

The current Article 78 of the Treaty establishing the European Community (TEC) is found under Title V ‘Transport’ in the latest consolidated version of the treaties in force (OJ 29.12.2006 C 321 E/73):

Article 78 TEC

The provisions of this title shall not form an obstacle to the application of measures taken in the Federal Republic of Germany to the extent that such measures are required in order to compensate for the economic disadvantages caused by the division of Germany to the economy of certain areas of the Federal Republic affected by that division.

***

For the sake of a systematic comparison, we look at the Article during the previous treaty reform stages.

First, we turn to the European Convention.

Article III-141 of the draft Treaty establishing a Constitution for Europe used the word ‘Section’ where the current Article 77 TEC says ‘title’, but otherwise the text was unchanged (OJ 18.7.2003 C 169/55).

***

Article III-243 of the Treaty establishing a Constitution for Europe added a sentence to the text of the European Convention (OJ 16.12.2004 C 310/107):

Article III-243 Constitution

The provisions of this Section shall not form an obstacle to the application of measures taken in the Federal Republic of Germany to the extent that such measures are required in order to compensate for the economic disadvantages caused by the division of Germany to the economy of certain areas of the Federal Republic affected by that division. Five years after the entry into force of the Treaty establishing a Constitution for Europe, the Council, acting on a proposal from the Commission, may adopt a European decision repealing this Article.

***

We can see that the IGC 2004 agreed on the possibility to repeal the provision on derogations on the basis of the division of Germany. This was taken over by the IGC 2007 as part of the 2004 package, if nothing in the IGC 2007 Mandate said anything to the contrary.

Naturally, the effects of the division of Germany are not over yet, almost two decades after German unification.

Sozialpolitik aktuell in Deutschland, Universität Duisburg, Essen, Institut für Soziologie, offers web pages with social indicators in Germany. In 2007 the unemployment rate in the old ‚Bundesländer’ was 8.4 per cent, but twice as high (16.8 per dent) in the new states. See Arbeitslosenquoten in neuen und alten Bundesländern 1975 – 2007:

http://www.sozialpolitik-aktuell.de/datensammlung/4/ab/abbIV35.pdf


On the other hand, increasingly a special rule for the rich Federal Republic of Germany is an anomaly in a European Union with ten poorer former Communist member states, without a richer big brother to help them out.

In principle, of anecdotal value only, one of the consequences of the stalled ratification process of the Constitutional Treaty was that this German special arrangement got an extra two year lease of life (if the Lisbon Treaty enters into force according to plan).

***

What have others said about Article 98 TFEU?


United Kingdom

Professor Steve Peers covered the Treaty of Lisbon in a number of Statewatch Analyses. ‘EU Reform Treaty Analysis no. 3.3: Revised text of Part Three, Titles I to VI of the Treaty establishing the European Community (TEC): Internal Market and competition’ (Version 2, 23 October 2007) includes the current Title V Transport.

Peers commented on the last sentence of Article 78 TEC and TFEU (ToL), to be renumbered Article 98 TFEU in the consolidated version, in the following way (page 23):

“The amendment is entirely new. It permits this Treaty Article to be amended (repealed) by QMV.”

The analysis 3.3 and other useful Statewatch analyses are available through:

http://www.statewatch.org/euconstitution.htm

***

The Foreign and Commonwealth Office (FCO) offers a convenient source of brief annotations on Lisbon Treaty amendments in ‘A comparative table of the current EC and EU treaties as amended by the Treaty of Lisbon’ (Command Paper 7311, published 21 January 2008). It offers the following comment on Article 98 TFEU, Article 78 TFEU (ToL) in the original Lisbon Treaty (page 11):

“In substance the same as Article 78 TEC, with a new power for the Council, by QMV, to repeal this provision.”

The FCO comparative table is available at:

http://www.official-documents.gov.uk/document/cm73/7311/7311.asp

***

The UK House of Commons Library Research Paper 07/86 ‘The Treaty of Lisbon: amendments to the Treaty establishing the European Community’ (published 6 December 2007) wrapped up Transport in a brief comment on page 56:

“F. Transport

Title V, Articles 70-80 (Constitution Articles III-236 – 245) are on transport and are based largely on Articles 70 – 75 TEC, but with a change in the voting procedure to the OLP with QMV, except for Article 72, which replaces unanimity in the Constitution Article III-237 with a “special legislative procedure”. Other, minor, changes are Article 75(c), which adds the EP to those bodies to be consulted, and Article 78 (Constitution Article III-243), allowing the Article concerning German unification to be repealed after 5 years.

Present Articles 154 – 156 on Trans-European Networks (TENS) have been moved to Title VII and contain only minor amendments.”

The Library Research Paper 07/86 is available at:

http://www.parliament.uk/commons/lib/research/rp2007/rp07-086.pdf

***

The House of Lords European Union Committee report ‘The Treaty of Lisbon: an impact assessment, Volume I: Report’ (HL Paper 62-I, published 13 March 2008) made no explicit reference to Article 98 TFEU.

The report is accessible at:

http://www.publications.parliament.uk/pa/ld200708/ldselect/ldeucom/62/62.pdf

***

Sweden

The consultation paper of the government of Sweden, ‘Lissabonfördraget; Statsrådsberedningen, Departementsserien (Ds), Ds 2007:48’ published 20 December 2007, bundled together transport and trans-European networks under the headline ‘Transporter och transeuropeiska nät’ (page 280 to 282).

The text offers an overview of the coming Title VI ‘Transport’, and Article 78 TEC and TFEU (ToL) is explained on page 282:

“Vidare har genom Lissabonfördraget införts en möjlighet för rådet att, efter fem år från ikraftträdandet av fördraget, upphäva artikel 78 i EUF-fördraget, som möjliggör att vissa åtgärder vidtas för att uppväga de ekonomiska nackdelar som uppkommit genom Tysklands delning för näringslivet i vissa av de områden i förbundsrepubliken som påverkats av delningen. I en gemensam förklaring (28) till artikel 78 i fördraget om Europeiska unionens funktionssätt anges att bestämmelsen ska tillämpas i enlighet med gällande praxis från EU-domstolen.”

The consultation paper ’Lissabonfördraget’ is available at:

http://www.regeringen.se/content/1/c6/09/49/81/107aa077.pdf

***

Finland

The Finnish ratification bill, ‘Hallituksen esitys Eduskunnalle Euroopan unionista tehdyn sopimuksen ja Euroopan yhteisön perustamissopimuksen muuttamisesta tehdyn Lissabonin sopimuksen hyväksymisestä ja laiksi sen lainsäädännön alaan kuuluvien määräysten voimaansaattamisesta’ (HE 23/2008 vp), describes Article 78 TFEU (ToL), renumbered Article 98 TFEU, mentions Declaration 28 and refers to a more detailed treatment of declarations (page 206).

The Finnish ratification bill is available at:

http://www.finlex.fi/fi/esitykset/he/2008/20080023.pdf

The Swedish language version of the ratification bill ‘Regeringens proposition till Riksdagen med förslag om godkännande av Lissabonfördraget om ändring av fördraget om Europeiska unionen och fördraget om upprättandet av Europeiska gemenskapen och till lag om sättande i kraft av de bestämmelser i fördraget som hör till området för lagstiftningen’ (RP 23/2008 rd), explains Article 78, mentions Declaration 28 and refers to the detailed text on declarations (page 209).

The ratification bill in Swedish can be accessed at:

http://www.finlex.fi/sv/esitykset/he/2008/20080023.pdf

***

Among the declarations annexed to the final act of the intergovernmental conference which adopted the Treaty of Lisbon, we find Declaration number 28 (OJ 9.5.2008 C 115/347):

28. Declaration on Article 98 of the Treaty on the Functioning of the European Union

The Conference notes that the provisions of Article 98 shall be applied in accordance with the current practice. The terms ‘such measures are required in order to compensate for the economic disadvantages caused by the division of Germany to the economy of certain areas of the Federal Republic affected by that division’ shall be interpreted in accordance with the existing case law of the Court of Justice of the European Union.


Ralf Grahn

EU TFEU: Transport charges and dues

The EU Treaty of Lisbon takes over the provision on charges and dues in respect of the crossing of frontiers which are charged by a carrier in addition to the transport rates, but the new treaty gives no indication of if the provision has any relevance since the scrapping of border controls in the Schengen area.

Is it time to overhaul both EU treaties and coursebooks?


***

Article 97 of the Treaty on the Functioning of the European Union (TFEU) is found in the consolidated version of the Treaty on European Union and the Treaty on the Functioning of the European Union, published in the Official Journal of the European Union, OJ 9.5.2008 C 115/87:

Part Three ‘Policies and internal actions of the Union’

Title VI TFEU ‘Transport’

Article 97 TFEU
(ex Article 77 TEC)

Charges or dues in respect of the crossing of frontiers which are charged by a carrier in addition to the transport rates shall not exceed a reasonable level after taking the costs actually incurred thereby into account.

Member States shall endeavour to reduce these costs progressively.

The Commission may make recommendations to Member States for the application of this Article.

***

In Article 2, point 72 of the Treaty of Lisbon (ToL) the intergovernmental conference (IGC 2007) laid out the specific amendments to Article 75 TEC, and in point 73 it dealt with Article 78 TEC. Thus, no specific amendments were made to Article 77 TEC (OJ 17.12.2007 C 306/68).

The TFEU table of equivalences tells us that Article 77 TEC first became Article 77 TFEU (ToL), but later renumbered Article 97 TFEU in the consolidated version (OJ 17.12.2007 C 306/210).

***

The current Article 77 of the Treaty establishing the European Community (TEC) is found under Title V ‘Transport’ in the latest consolidated version of the treaties in force (OJ 29.12.2006 C 321 E/72). The wording is exactly the same as in Article 97 TFEU.


***

Still, for the sake of a systematic comparison, we look at the Article during the previous treaty reform stages.

Therefore, we turn to the European Convention.

Article III-140 of the draft Treaty establishing a Constitution for Europe just deleted the word ‘progressively’ from the text of the current Article 77 TEC (OJ 18.7.2003 C 169/54).

***

Article III-242 of the Treaty establishing a Constitution for Europe adopted the text of the European Convention unchanged (OJ 16.12.2004 C 310/107).

***

The IGC 2007 managed to keep the bulk of the Lisbon Treaty down by basing its amendments on the current treaties and by disregarding cosmetic changes in a number of instances. The word ‘progressively’ flows from the TEC to the TFEU.

***

Have others found anything to say about an unchanged provision of the Lisbon Treaty?


United Kingdom

Professor Steve Peers covered the Treaty of Lisbon in a number of Statewatch Analyses. ‘EU Reform Treaty Analysis no. 3.3: Revised text of Part Three, Titles I to VI of the Treaty establishing the European Community (TEC): Internal Market and competition’ (Version 2, 23 October 2007) includes the current Title V Transport.

The unchanged Article 77 TEC and TFEU (ToL), to be renumbered Article 97 TFEU in the consolidated version, drew no comment (page 22).

The analysis 3.3 and other useful Statewatch analyses are available through:

http://www.statewatch.org/euconstitution.htm

***

The Foreign and Commonwealth Office (FCO) offers a convenient source of brief annotations on Lisbon Treaty amendments in ‘A comparative table of the current EC and EU treaties as amended by the Treaty of Lisbon’ (Command Paper 7311, published 21 January 2008). The comment on Article 97 TFEU, Article 77 TFEU (ToL) in the original Lisbon Treaty, is short (page 11):

“Unchanged from Article 77 TEC.”

The FCO comparative table is available at:

http://www.official-documents.gov.uk/document/cm73/7311/7311.asp

***

The UK House of Commons Library Research Paper 07/86 ‘The Treaty of Lisbon: amendments to the Treaty establishing the European Community’ (published 6 December 2007) wrapped up Transport in a brief comment on page 56:

“F. Transport

Title V, Articles 70-80 (Constitution Articles III-236 – 245) are on transport and are based largely on Articles 70 – 75 TEC, but with a change in the voting procedure to the OLP with QMV, except for Article 72, which replaces unanimity in the Constitution Article III-237 with a “special legislative procedure”. Other, minor, changes are Article 75(c), which adds the EP to those bodies to be consulted, and Article 78 (Constitution Article III-243), allowing the Article concerning German unification to be repealed after 5 years.

Present Articles 154 – 156 on Trans-European Networks (TENS) have been moved to Title VII and contain only minor amendments.”

The Library Research Paper 07/86 is available at:

http://www.parliament.uk/commons/lib/research/rp2007/rp07-086.pdf

***

The House of Lords European Union Committee report ‘The Treaty of Lisbon: an impact assessment, Volume I: Report’ (HL Paper 62-I, published 13 March 2008) made no explicit reference to Article 97 TFEU.

The report is accessible at:

http://www.publications.parliament.uk/pa/ld200708/ldselect/ldeucom/62/62.pdf

***

Sweden

The consultation paper of the government of Sweden, ‘Lissabonfördraget; Statsrådsberedningen, Departementsserien (Ds), Ds 2007:48’ published 20 December 2007, bundled together transport and trans-European networks under the headline ‘Transporter och transeuropeiska nät’ (page 280 to 282).

The text offers an overview of the coming Title VI ‘Transport’, but I found nothing on Article 77 TEC and ToL.

The consultation paper ’Lissabonfördraget’ is available at:

http://www.regeringen.se/content/1/c6/09/49/81/107aa077.pdf

***

Finland

The systematic Finnish ratification bill, ‘Hallituksen esitys Eduskunnalle Euroopan unionista tehdyn sopimuksen ja Euroopan yhteisön perustamissopimuksen muuttamisesta tehdyn Lissabonin sopimuksen hyväksymisestä ja laiksi sen lainsäädännön alaan kuuluvien määräysten voimaansaattamisesta’ (HE 23/2008 vp), bundles together Articles 76 and 77 TFEU (ToL), renumbered Articles 96 and 97 TFEU, in a brief explanation (page 206).

The Finnish ratification bill is available at:

http://www.finlex.fi/fi/esitykset/he/2008/20080023.pdf

The Swedish language version of the ratification bill ‘Regeringens proposition till Riksdagen med förslag om godkännande av Lissabonfördraget om ändring av fördraget om Europeiska unionen och fördraget om upprättandet av Europeiska gemenskapen och till lag om sättande i kraft av de bestämmelser i fördraget som hör till området för lagstiftningen’ (RP 23/2008 rd), offers the same explanation on page 209:

The ratification bill in Swedish can be accessed at:

http://www.finlex.fi/sv/esitykset/he/2008/20080023.pdf

***

From the viewpoint of treaty change, a provision without amendments is uninteresting, as shown by the fair sample of documents we have looked at. For national legislators these provisions are covered by earlier ratifications.

Possibly, a provision such as 97 TFEU may have become redundant, but lives on because there has been no thorough spring-cleaning of the internal policy areas.

But how is a student to know, since internal policy sectors are hardly dealt with at all in university curricula, in English? I failed to find ‘Transport’ indexed in four coursebooks.

At least some continental books for students seem to take a broader ‘law and politics’ approach. Here are a few examples of general books with chapters on transport (although there may be later editions than the ones I have at hand):

Roland Bieber, Astrid Epiney & Marcel Haag: Die Europäische Union, Europarecht und Politik (6. Auflage, Nomos, 2005)

Fernando Díez Moreno: Manual de derecho de la Unión Europea (Tercera edición, Editorial Aranzadi, 2005)

Louis Dubouis & Claude Blumann: Droit matériel de l’Union européenne (3e édition, Montchrestien, 2004)

Enrique Linde Paniagua (Coordinador) : Políticas de la Unión Europea (2a edicón, Colex, 2005)




Ralf Grahn

EU TFEU: Transport support and protection

Under the Treaty of Lisbon, the European Union prohibits support and protection for transport firms or industries as it does today, with the Commission able to allow exceptions.


***

Article 96 of the Treaty on the Functioning of the European Union (TFEU) is found in the consolidated version of the Treaty on European Union and the Treaty on the Functioning of the European Union, published in the Official Journal of the European Union, OJ 9.5.2008 C 115/86–87:

Part Three ‘Policies and internal actions of the Union’

Title VI TFEU ‘Transport’

Article 96 TFEU
(ex Article 76 TEC)

1. The imposition by a Member State, in respect of transport operations carried out within the Union, of rates and conditions involving any element of support or protection in the interest of one or more particular undertakings or industries shall be prohibited, unless authorised by the Commission.

2. The Commission shall, acting on its own initiative or on application by a Member State, examine the rates and conditions referred to in paragraph 1, taking account in particular of the requirements of an appropriate regional economic policy, the needs of underdeveloped areas and the problems of areas seriously affected by political circumstances on the one hand, and of the effects of such rates and conditions on competition between the different modes of transport on the other.

After consulting each Member State concerned, the Commission shall take the necessary decisions.

3. The prohibition provided for in paragraph 1 shall not apply to tariffs fixed to meet competition.

***

In Article 2, point 72 of the Treaty of Lisbon (ToL) the intergovernmental conference (IGC 2007) laid out the specific amendments to Article 75 TEC, and in point 73 it dealt with Article 78 TEC. Thus, no specific amendments were made to Article 76 TEC. (OJ 17.12.2007 C 306/68):

The TFEU table of equivalences tells us that Article 76 TEC first became Article 76 TFEU (ToL), but later renumbered Article 96 TFEU in the consolidated version (OJ 17.12.2007 C 306/210).

***

The current Article 76 of the Treaty establishing the European Community (TEC) is found under Title V ‘Transport’ in the latest consolidated version of the treaties in force (OJ 29.12.2006 C 321 E/72):

Article 76 TEC

1. The imposition by a Member State, in respect of transport operations carried out within the Community, of rates and conditions involving any element of support or protection in the interest of one or more particular undertakings or industries shall be prohibited, unless authorised by the Commission.

2. The Commission shall, acting on its own initiative or on application by a Member State, examine the rates and conditions referred to in paragraph 1, taking account in particular of the requirements of an appropriate regional economic policy, the needs of underdeveloped areas and the problems of areas seriously affected by political circumstances on the one hand, and of the effects of such rates and conditions on competition between the different modes of transport on the other.

After consulting each Member State concerned, the Commission shall take the necessary decisions.

3. The prohibition provided for in paragraph 1 shall not apply to tariffs fixed to meet competition.

***

From the current TEC to the TFEU the ‘Community’ has become the ‘Union’, one of the so called horizontal amendments.

***

This does not lead us to expect any mind-blowing innovations during the previous stages of the treaty reform process, but the aim of systematic comparison requires a look at each version of every Article.

Therefore, we turn to the European Convention.

Article III-139 of the draft Treaty establishing a Constitution for Europe made minimal stylistic amendments to the current Article 76 TEC (OJ 18.7.2003 C 169/54).

***

Article III-241 of the Treaty establishing a Constitution for Europe adopted the text of the European Convention unchanged (OJ 16.12.2004 C 310/107).

***

Indeed, there is very little to say about treaty change.

Someone may want to reflect on the recurring theme of Title VI on transport policy and the framework of a common transport policy.

The words in Article 91(1) TFEU ‘and taking into account the distinctive features of transport’ are echoed in the later Articles. Aids, rates and conditions, discrimination as well as support and protection for particular firms or industries in the area of transport have been given their own rules, reminiscent of the general provisions for the internal market, but still different.


***

Have others found anything to say about a virtually unchanged provision of the Lisbon Treaty?


United Kingdom

Professor Steve Peers covered the Treaty of Lisbon in a number of Statewatch Analyses. ‘EU Reform Treaty Analysis no. 3.3: Revised text of Part Three, Titles I to VI of the Treaty establishing the European Community (TEC): Internal Market and competition’ (Version 2, 23 October 2007) includes the current Title V Transport.

Peers highlighted the differences between the current Article 76 TEC, the Constitutional Treaty and the Lisbon Treaty, but found no need to comment on Article 76 TFEU (ToL), to be renumbered Article 96 TFEU in the consolidated version (page 22).

The analysis 3.3 and other useful Statewatch analyses are available through:

http://www.statewatch.org/euconstitution.htm

***

The Foreign and Commonwealth Office (FCO) offers a convenient source of brief annotations on Lisbon Treaty amendments in ‘A comparative table of the current EC and EU treaties as amended by the Treaty of Lisbon’ (Command Paper 7311, published 21 January 2008). The comment on Article 96 TFEU, Article 76 TFEU (ToL) in the original Lisbon Treaty, is short (page 11):

“Unchanged from Article 76 TEC.”

The FCO comparative table is available at:

http://www.official-documents.gov.uk/document/cm73/7311/7311.asp

***

The UK House of Commons Library Research Paper 07/86 ‘The Treaty of Lisbon: amendments to the Treaty establishing the European Community’ (published 6 December 2007) wrapped up Transport in a brief comment on page 56:

“F. Transport

Title V, Articles 70-80 (Constitution Articles III-236 – 245) are on transport and are based largely on Articles 70 – 75 TEC, but with a change in the voting procedure to the OLP with QMV, except for Article 72, which replaces unanimity in the Constitution Article III-237 with a “special legislative procedure”. Other, minor, changes are Article 75(c), which adds the EP to those bodies to be consulted, and Article 78 (Constitution Article III-243), allowing the Article concerning German unification to be repealed after 5 years.

Present Articles 154 – 156 on Trans-European Networks (TENS) have been moved to Title VII and contain only minor amendments.”

The Library Research Paper 07/86 is available at:

http://www.parliament.uk/commons/lib/research/rp2007/rp07-086.pdf

***

The House of Lords European Union Committee report ‘The Treaty of Lisbon: an impact assessment, Volume I: Report’ (HL Paper 62-I, published 13 March 2008) made no explicit reference to Article 96 TFEU.

The report is accessible at:

http://www.publications.parliament.uk/pa/ld200708/ldselect/ldeucom/62/62.pdf

***

Sweden

The consultation paper of the government of Sweden, ‘Lissabonfördraget; Statsrådsberedningen, Departementsserien (Ds), Ds 2007:48’ published 20 December 2007, bundled together transport and trans-European networks under the headline ‘Transporter och transeuropeiska nät’ (page 280 to 282).

The text offers an overview of the coming Title VI ‘Transport’, but I found nothing on Article 76 TEC and ToL.

The consultation paper ’Lissabonfördraget’ is available at:

http://www.regeringen.se/content/1/c6/09/49/81/107aa077.pdf

***

Finland

The systematic Finnish ratification bill, ‘Hallituksen esitys Eduskunnalle Euroopan unionista tehdyn sopimuksen ja Euroopan yhteisön perustamissopimuksen muuttamisesta tehdyn Lissabonin sopimuksen hyväksymisestä ja laiksi sen lainsäädännön alaan kuuluvien määräysten voimaansaattamisesta’ (HE 23/2008 vp), bundles together Articles 76 and 77 TFEU (ToL), renumbered Articles 96 and 97 TFEU, in a brief explanation (page 206).

The Finnish ratification bill is available at:

http://www.finlex.fi/fi/esitykset/he/2008/20080023.pdf

The Swedish language version of the ratification bill ‘Regeringens proposition till Riksdagen med förslag om godkännande av Lissabonfördraget om ändring av fördraget om Europeiska unionen och fördraget om upprättandet av Europeiska gemenskapen och till lag om sättande i kraft av de bestämmelser i fördraget som hör till området för lagstiftningen’ (RP 23/2008 rd), offers the same explanation on page 209:

The ratification bill in Swedish can be accessed at:

http://www.finlex.fi/sv/esitykset/he/2008/20080023.pdf



Ralf Grahn