The Council of the European Union has finally published the readable, consolidated Treaty of Lisbon in 23 treaty languages on its web site. Go to:
http://www.consilium.europa.eu/showPage.asp?lang=en&id=1296&mode=g&name=
In a few days ten months would have passed from the European Council meeting, which decided to convene the intergovernmental conference (IGC 2007), ten long months without a readable version of the most important EC and EU document since 2004.
Finally, most of the EU’s 490 million citizens can read the treaty in their own language (or at least the official language of their country) as it is supposed to stand when it enters into force.
Based on consolidated versions Europeans can at least begin to (mis)understand each other on a common basis of facts.
Ralf Grahn
P.S. After checking the Official Journal this morning, I had to do other things than to continue chasing the promised consolidations. I got the above information from John Carroll of Semper Idem on his Irish Election blog, a post called 'Lisbon - The nuts and bolts', of 16 April 2008:
http://www.irishelection.com/04/lisbon-the-nuts-and-bolts/
I am grateful to John Carroll for both his kind words and for the essential information on publication of the amending EU treaties.
Wednesday, 16 April 2008
EU against the death penalty
Is the European Union going to re-introduce the death penalty, as claimed as gospel truth by at least Wonko’s World, Why England Needs A Parliament, John Trenchard, PJC Journal and by now a host of other blogs read by thousands of impressionable readers?
None of the above seems to have done any research on their own, but they seem to have been more than willing to publish as a fact that the European Union ‘in a footnote of a footnote’ is making the death penalty possible.
By the look of it, the likely ultimate source is a June 2005 interview with Professor Karl Albrecht Schachtschneider in German, with the double headline ‘Europa nicht als Groβstaat, sondern als “Republik der Republiken” organiseren – Interview mit Prof. Karl Albrecht Schachtschneider über die EU-Verfassung’, posted on the web pages of BüSo, Bürgerrechtsbewegung Solidarität.
The interview contains a heading ‘Wiederkehr des Todesstrafe?’ (Return of the death penalty?), and Schachtschneider’s answer that Article II-62 of the Constitutional Treaty (and the Charter of Fundamental Rights) is untrue. His gives the explanations relating to the Charter as his reasons for two claims: 1) that there is no Constitutional protection of the right to life anymore in the case of war or imminent danger of war, and 2) that the death penalty is possible and will come.
***
Let us take a look at the EU position on the death penalty. Here is the political answer, the one which came out on top when I googled ‘EU death penalty’. The Delegation of the European Commission to the USA has a web page dedicated to ‘EU policy & action on the death penalty’. The following categorical statement can be found there:
“The European Union (EU) is opposed to the death penalty in all cases and has consistently espoused its universal abolition, working towards this goal.”
The web pages contain 73 links to various policy documents, action in the United Nations, action on US death row cases, European and international agreements and policy makers as well as archived documents relating to earlier years.
See for yourself:
http://www.eurunion.org/legislat/deathpenalty/deathpenhome.htm
Fairly conclusive for a normal person, one would think: The European Union is against capital punishment.
***
The motives and working ethics of bloggers like the above are such that I do not want to begin dissecting them.
But how is it possible that the EU institutions and the governments of the member states let such wildfires start and spread without actively, visibly and instantly rebutting malicious rumours devoid of factual basis?
Ralf Grahn
None of the above seems to have done any research on their own, but they seem to have been more than willing to publish as a fact that the European Union ‘in a footnote of a footnote’ is making the death penalty possible.
By the look of it, the likely ultimate source is a June 2005 interview with Professor Karl Albrecht Schachtschneider in German, with the double headline ‘Europa nicht als Groβstaat, sondern als “Republik der Republiken” organiseren – Interview mit Prof. Karl Albrecht Schachtschneider über die EU-Verfassung’, posted on the web pages of BüSo, Bürgerrechtsbewegung Solidarität.
The interview contains a heading ‘Wiederkehr des Todesstrafe?’ (Return of the death penalty?), and Schachtschneider’s answer that Article II-62 of the Constitutional Treaty (and the Charter of Fundamental Rights) is untrue. His gives the explanations relating to the Charter as his reasons for two claims: 1) that there is no Constitutional protection of the right to life anymore in the case of war or imminent danger of war, and 2) that the death penalty is possible and will come.
***
Let us take a look at the EU position on the death penalty. Here is the political answer, the one which came out on top when I googled ‘EU death penalty’. The Delegation of the European Commission to the USA has a web page dedicated to ‘EU policy & action on the death penalty’. The following categorical statement can be found there:
“The European Union (EU) is opposed to the death penalty in all cases and has consistently espoused its universal abolition, working towards this goal.”
The web pages contain 73 links to various policy documents, action in the United Nations, action on US death row cases, European and international agreements and policy makers as well as archived documents relating to earlier years.
See for yourself:
http://www.eurunion.org/legislat/deathpenalty/deathpenhome.htm
Fairly conclusive for a normal person, one would think: The European Union is against capital punishment.
***
The motives and working ethics of bloggers like the above are such that I do not want to begin dissecting them.
But how is it possible that the EU institutions and the governments of the member states let such wildfires start and spread without actively, visibly and instantly rebutting malicious rumours devoid of factual basis?
Ralf Grahn
EU TFEU: Remaining restrictions on services
In many cases the Treaty of Lisbon does little else than renumbering existing treaty provisions for coming consolidated versions of the revised Treaty on European Union and the renamed Treaty on the Functioning of the European Union.
***
The Treaty of Lisbon (ToL) presents no specific amendments concerning Article 54 of the Treaty establishing the European Community (TEC). Cf. points 59 and 60 in OJ 17.12.2007 C 306/55.
***
The latest consolidated version of the existing treaties gives us the wording of Article 54 TEC in force (OJ 29.12.2006 C 321 E/63):
Article 54 TEC
As long as restrictions on freedom to provide services have not been abolished, each Member State shall apply such restrictions without distinction on grounds of nationality or residence to all persons providing services within the meaning of the first paragraph of Article 49.
***
There seem to be no horizontal amendments, but the renumbering of the provision has to be checked, and we add the location of the Article within the Treaty on the Functioning of the European Union (TFEU):
Part Three ‘Policies and internal actions of the Union’
Title III (renumbered Title IV TFEU) ‘Free movement of persons, services and capital’
Chapter 3 ‘Services’
Article 54 TFEU (ToL), renumbered Article 61 TFEU
As long as restrictions on freedom to provide services have not been abolished, each Member State shall apply such restrictions without distinction on grounds of nationality or residence to all persons providing services within the meaning of the first paragraph of Article 49 [ToL, renumbered Article 56 TFEU].
***
Article III-34 of the draft Treaty establishing a Constitution for Europe added an ‘of’, and the referral was different, but otherwise it was a clone of the current TEC Article (OJ 18.7.2003 C 169/33).
***
In Article III-149 of the Treaty establishing a Constitution for Europe ‘each Member State’ became ‘the Member States’ but the IGC 2004 accepted the ‘of’ added by the European Convention before ‘residence’. Naturally, the referral was different.
***
We can conclude that, from the TEC to the Lisbon Treaty, no substantial change has been proposed to the provision.
***
We see that restrictions on grounds of nationality or of residence are forbidden, which narrows the scope of legitimate remaining restrictions considerably. In addition, new restrictions would seem to go against the aim to achieve free movement of services.
The ‘sunset feeling’ evoked by Article 54 TEC has not inspired writers unduly, which a quick look at a number of textbooks validated. Müller-Graff explains why, in Streinz, EUV/EGV Vertrag über die Europäische Union und Vertrag zur Gründung der Europäischen Gemeinschaft (Verlag C.H.Beck, München 2003; page 742):
„Sein Regelungsgehalt wird von Art. 49 EGV mitumfasst, so dass er gestrichen werden könnte.“
In other words, Article 54 ToL (and 61 TFEU) is redundant, due to Article 49 TEC (and ToL, renumbered Article 56 TFEU).
This serves as a reminder, if one is needed, of how focused on institutional questions the later cycles of treaty reform have been and of how technical most of the modifications of the ‘Community’ policy areas have been, or to use the term preferred for the future ‘policies and internal actions of the Union’.
Ralf Grahn
***
The Treaty of Lisbon (ToL) presents no specific amendments concerning Article 54 of the Treaty establishing the European Community (TEC). Cf. points 59 and 60 in OJ 17.12.2007 C 306/55.
***
The latest consolidated version of the existing treaties gives us the wording of Article 54 TEC in force (OJ 29.12.2006 C 321 E/63):
Article 54 TEC
As long as restrictions on freedom to provide services have not been abolished, each Member State shall apply such restrictions without distinction on grounds of nationality or residence to all persons providing services within the meaning of the first paragraph of Article 49.
***
There seem to be no horizontal amendments, but the renumbering of the provision has to be checked, and we add the location of the Article within the Treaty on the Functioning of the European Union (TFEU):
Part Three ‘Policies and internal actions of the Union’
Title III (renumbered Title IV TFEU) ‘Free movement of persons, services and capital’
Chapter 3 ‘Services’
Article 54 TFEU (ToL), renumbered Article 61 TFEU
As long as restrictions on freedom to provide services have not been abolished, each Member State shall apply such restrictions without distinction on grounds of nationality or residence to all persons providing services within the meaning of the first paragraph of Article 49 [ToL, renumbered Article 56 TFEU].
***
Article III-34 of the draft Treaty establishing a Constitution for Europe added an ‘of’, and the referral was different, but otherwise it was a clone of the current TEC Article (OJ 18.7.2003 C 169/33).
***
In Article III-149 of the Treaty establishing a Constitution for Europe ‘each Member State’ became ‘the Member States’ but the IGC 2004 accepted the ‘of’ added by the European Convention before ‘residence’. Naturally, the referral was different.
***
We can conclude that, from the TEC to the Lisbon Treaty, no substantial change has been proposed to the provision.
***
We see that restrictions on grounds of nationality or of residence are forbidden, which narrows the scope of legitimate remaining restrictions considerably. In addition, new restrictions would seem to go against the aim to achieve free movement of services.
The ‘sunset feeling’ evoked by Article 54 TEC has not inspired writers unduly, which a quick look at a number of textbooks validated. Müller-Graff explains why, in Streinz, EUV/EGV Vertrag über die Europäische Union und Vertrag zur Gründung der Europäischen Gemeinschaft (Verlag C.H.Beck, München 2003; page 742):
„Sein Regelungsgehalt wird von Art. 49 EGV mitumfasst, so dass er gestrichen werden könnte.“
In other words, Article 54 ToL (and 61 TFEU) is redundant, due to Article 49 TEC (and ToL, renumbered Article 56 TFEU).
This serves as a reminder, if one is needed, of how focused on institutional questions the later cycles of treaty reform have been and of how technical most of the modifications of the ‘Community’ policy areas have been, or to use the term preferred for the future ‘policies and internal actions of the Union’.
Ralf Grahn
Readable Lisbon Treaty: Four months gone and missing
The European Convention worked openly and its draft Constitution was published immediately. The IGC 2004 operated behind the closed doors, and it took one and a half month to publish its full results, the Constitutional Treaty, in the Official Journal.
The Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community was signed at Lisbon 13 December 2007. Today is 16 April 2008, so more than four months have passed without readable, consolidated versions published in each of the now 23 treaty languages.
***
The Lisbon Treaty is arguably the most important EC and EU document since 2004. If all legislation including proposals should be in the public domain, in a full and readable form – including tennis rackets aboard planes or not – the founding treaties are the one EU example above all others, long before they enter into force.
The Treaty of Lisbon is the document intended to define our rights and obligations as EU citizens, and of the member state(s) we are citizens of and where we live. We have a legitimate interest to know in full how these relationships are being defined and what the needed ratifications entail.
The Council, I am sorry to say, took the opposite view. Without any public justification it decided to postpone the publication of the consolidated versions until the Lisbon Treaty would have entered into force. If precedents were needed, one would have to return to an almost forgotten era, the Treaty of Nice, signed in 2001, and a world where web publishing was in its early stages.
***
Luckily, some private individuals, organisations, parliaments and even governments broke the conspiracy of silence by publishing consolidated versions of the Lisbon Treaty. Among these were some of the governments rumoured to be among the opponents of publishing in the Council.
But until this day, only a part of the citizens of the European Union have access to a (fairly accurate) consolidated version of the Lisbon Treaty in their own language.
***
Finally, there was good news. The Council must have relented. The following information was posted on the Commission’s web site dedicated to the Lisbon Treaty:
“A consolidated version of the Treaty will be published on 15 April on the web and on 9 May on paper version.”
***
Finally, I thought, and 9 April 2008 posted what I reckoned to be the final update on different consolidated versions ‘Consolidated EU Lisbon Treaty Update April 2008’, as a tribute to those who have produced and published consolidations and as a last reminder to those who needed one during the final week before official publication.
***
Yesterday was to be the great day for EU citizens.
I scoured every imaginable EU web site in search of the consolidations without finding any new mention (including any explanation for the delay).
Later in the day, I queried Europe direct by e-mail, but received no immediate answer.
***
A short while ago I checked the Official Journal of 16 April 2008 as well as the Council’s web site. A new day is beginning, but still nothing.
***
In addition to all the lofty principles of closeness, openness, transparency and democracy that permeate the Lisbon Treaty, it is ironic that the same governments who have intentionally delayed the publication of readable treaties are the ones who have declared the importance of national translations in regional and minority languages.
For a good laugh, let us turn to Declaration number 16 contained in the Final Act of the Treaty of Lisbon (OJ 17.12.2007 C 306/254):
16. Declaration on Article 53(2) of the Treaty on European Union
The Conference considers that the possibility of producing translations of the Treaties in the languages mentioned in Article 53(2) contributes to fulfilling the objective of respecting the Union's rich cultural and linguistic diversity as set forth in the fourth subparagraph of Article 2(3). In this context, the Conference confirms the attachment of the Union to the cultural diversity of Europe and the special attention it will continue to pay to these and other languages.
The Conference recommends that those Member States wishing to avail themselves of the possibility recognised in Article 53(2) communicate to the Council, within six months from the date of the signature of the Treaty of Lisbon, the language or languages into which translations of the Treaties will be made.
***
Yes, how about the official languages to start with?
***
The only thing citizens and bloggers can do is to keep the repeated failures of the Council in public view and the intergovernmental machinations in distrust.
Ralf Grahn
The Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community was signed at Lisbon 13 December 2007. Today is 16 April 2008, so more than four months have passed without readable, consolidated versions published in each of the now 23 treaty languages.
***
The Lisbon Treaty is arguably the most important EC and EU document since 2004. If all legislation including proposals should be in the public domain, in a full and readable form – including tennis rackets aboard planes or not – the founding treaties are the one EU example above all others, long before they enter into force.
The Treaty of Lisbon is the document intended to define our rights and obligations as EU citizens, and of the member state(s) we are citizens of and where we live. We have a legitimate interest to know in full how these relationships are being defined and what the needed ratifications entail.
The Council, I am sorry to say, took the opposite view. Without any public justification it decided to postpone the publication of the consolidated versions until the Lisbon Treaty would have entered into force. If precedents were needed, one would have to return to an almost forgotten era, the Treaty of Nice, signed in 2001, and a world where web publishing was in its early stages.
***
Luckily, some private individuals, organisations, parliaments and even governments broke the conspiracy of silence by publishing consolidated versions of the Lisbon Treaty. Among these were some of the governments rumoured to be among the opponents of publishing in the Council.
But until this day, only a part of the citizens of the European Union have access to a (fairly accurate) consolidated version of the Lisbon Treaty in their own language.
***
Finally, there was good news. The Council must have relented. The following information was posted on the Commission’s web site dedicated to the Lisbon Treaty:
“A consolidated version of the Treaty will be published on 15 April on the web and on 9 May on paper version.”
***
Finally, I thought, and 9 April 2008 posted what I reckoned to be the final update on different consolidated versions ‘Consolidated EU Lisbon Treaty Update April 2008’, as a tribute to those who have produced and published consolidations and as a last reminder to those who needed one during the final week before official publication.
***
Yesterday was to be the great day for EU citizens.
I scoured every imaginable EU web site in search of the consolidations without finding any new mention (including any explanation for the delay).
Later in the day, I queried Europe direct by e-mail, but received no immediate answer.
***
A short while ago I checked the Official Journal of 16 April 2008 as well as the Council’s web site. A new day is beginning, but still nothing.
***
In addition to all the lofty principles of closeness, openness, transparency and democracy that permeate the Lisbon Treaty, it is ironic that the same governments who have intentionally delayed the publication of readable treaties are the ones who have declared the importance of national translations in regional and minority languages.
For a good laugh, let us turn to Declaration number 16 contained in the Final Act of the Treaty of Lisbon (OJ 17.12.2007 C 306/254):
16. Declaration on Article 53(2) of the Treaty on European Union
The Conference considers that the possibility of producing translations of the Treaties in the languages mentioned in Article 53(2) contributes to fulfilling the objective of respecting the Union's rich cultural and linguistic diversity as set forth in the fourth subparagraph of Article 2(3). In this context, the Conference confirms the attachment of the Union to the cultural diversity of Europe and the special attention it will continue to pay to these and other languages.
The Conference recommends that those Member States wishing to avail themselves of the possibility recognised in Article 53(2) communicate to the Council, within six months from the date of the signature of the Treaty of Lisbon, the language or languages into which translations of the Treaties will be made.
***
Yes, how about the official languages to start with?
***
The only thing citizens and bloggers can do is to keep the repeated failures of the Council in public view and the intergovernmental machinations in distrust.
Ralf Grahn
Tuesday, 15 April 2008
Lisbon Treaty updates: Promising and promised
Promising: In addition to the first consolidation of the Lisbon Treaty and the later updated and complete consolidated version of the Treaty on European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU), Peadar ó Broin of the Institute of International and European Affairs (IIEA), in Dublin, has kindly informed me that there is a new, consolidated, highlighted and annotated version of the Treaty of Lisbon in English and a consolidated Irish Gaelic version.
They have not been published on the Institute’s web pages yet, but try asking for a copy by e-mail.
***
Promised: The clock is ticking this Tuesday 15 April 2008, but I have yet to find information from any EU institution consistent with the following information posted on the Commission’s web page on the Treaty of Lisbon:
“A consolidated version of the Treaty will be published on 15 April on the web and on 9 May on paper version.”
Where is it?
Ralf Grahn
They have not been published on the Institute’s web pages yet, but try asking for a copy by e-mail.
***
Promised: The clock is ticking this Tuesday 15 April 2008, but I have yet to find information from any EU institution consistent with the following information posted on the Commission’s web page on the Treaty of Lisbon:
“A consolidated version of the Treaty will be published on 15 April on the web and on 9 May on paper version.”
Where is it?
Ralf Grahn
EU TFEU: Liberalisation of services
A wishy-washy provision on further liberalisation of services is amended by the Treaty of Lisbon of the European Union (EU), but the interpretations range from nothing to the contradictory.
A riddle wrapped in a mystery inside an enigma?
***
The Treaty of Lisbon (ToL) amends Article 53 of the Treaty establishing the European Community (TEC) in the following way (OJ 17.12.2007 C 306/55):
59) In Article 53, the words ‘declare their readiness to’ shall be replaced by ‘shall endeavour to’.
***
As usual, the surrounding words have to be found in the latest consolidated version of the current treaties (OJ 29.12.2006 C 321 E/63):
Article 53 TEC
The Member States declare their readiness to undertake the liberalisation of services beyond the extent required by the directives issued pursuant to Article 52(1), if their general economic situation and the situation of the economic sector concerned so permit.
To this end, the Commission shall make recommendations to the Member States concerned.
***
In order to arrive at a new consolidated version of the provision according to the Lisbon Treaty, there are a few things to do: The specific amendment has to be inserted, possible horizontal amendments checked (none in this case) and the renumbering of the Article and the referral executed (Tables of equivalences) plus the location of the provision indicated for ease of comprehension:
Part Three ‘Policies and internal actions of the Union’
Title III (renumbered Title IV TFEU) ‘Free movement of persons, services and capital’
Chapter 3 ‘Services’
Article 53 TFEU (ToL), renumbered Article 60 TFEU
The Member States shall endeavour to undertake the liberalisation of services beyond the extent required by the directives issued pursuant to Article 52(1) [ToL, renumbered Article 59(1) TFEU], if their general economic situation and the situation of the economic sector concerned so permit.
To this end, the Commission shall make recommendations to the Member States concerned.
***
Article III-33 of the draft Treaty establishing a Constitution for Europe was essentially the same as the current TEC provision. In other words, the member states ‘declare their readiness’ (OJ 18.7.2003 C 169/33).
***
Article III-148 of the Treaty establishing a Constitution for Europe contained a small, but perhaps significant change of wording. Therefore, we present the proposed text here (OJ 16.12.2004 C 310/64):
Article III-148 Constitution
The Member States shall endeavour to undertake liberalisation of services beyond the extent required by the European framework laws adopted pursuant to Article III-147(1), if their general economic situation and the situation of the economic sector concerned so permit.
To this end, the Commission shall make recommendations to the Member States concerned.
***
We see that there has been one change with some potential meaning between the current TEC and the Lisbon Treaty. It occurred during the IGC 2004 and appeared in the Constitutional Treaty.
‘The Member States declare their readiness’ became ‘The Member States shall endeavour’ to undertake liberalisation of services beyond the extent required.
Since the change of wording was express, it presumably has some meaning. What could it be?
***
The UK Foreign and Commonwealth Office (FCO) offers the following interpretation of Article 60 TFEU (Article 53 ToL) in ‘A comparative table of the current EC and EU treaties as amended by the Treaty of Lisbon’ (Command paper 7311; page 9):
“In substance the same as Article 53 TEC.”
The UK House of Commons Library Research Paper 07/86 (6 December 2007) presents the following view (page 31):
“Article 53 states that Member States “shall endeavour to” instead of “declare their readiness to” liberalise services beyond the requirements of directives adopted under Article 51 if they are able to. The stronger terminology is in line with the general requirement for solidarity.”
Our following example is the German ratification bill, „Gesetzentwurf der Bundesregierung: Entwurf eines Gesetzes zum Vertrag von Lissabon vom 13. Dezember 2007, Drucksache 16/8300, 28.02.2008“ (page 173):
Nummer 59: Artikel 53 [Artikel 60] wird geändert und an den Wortlaut von Artikel III-148 Ver- fassungsvertrag angepasst. Er verstärkt den Appell an die Mitgliedstaaten, bei der Liberalisierung des Dienstleistungsverkehrs innerhalb der Union über den durch Richtlinien festgelegten Min- deststandard hinauszugehen, indem die bisherige Erklä- rung der Bereitschaft durch eine Bemühenszusage ersetzt wird.“
Until now, we have one neutral assessment (FCO), and two interpretations underlining the stronger appeal to liberalisation of services: First, the UK Commons Library, although I fail to grasp the reference to solidarity, and second, the German federal government.
I tried to scan the IIEA Consolidated and annotated version of the treaties, the Swedish government’s presentation of the Lisbon Treaty (Ds 2007:48) and the ratification bill of the government of Finland (HE 23/2008 vp in Finnish, RP 23/2008 rd in Swedish) as well as the following documents of the French Assemblée nationale, namely Projet de loi (6 février 2008) and Rapport d’information No 562 Tome 1 & Tome 2 (8 janvier 2008), plus a number of comments on the Constitutional Treaty without finding any qualitative assessment.
***
Contrast this with the description and assessment of Klemens H. Fischer in “Der Vertrag von Lissabon” (Nomos, Stämpfli and Verlag Österreich; page 221):
„Diese Änderung ist substantiell und als Rückschritt zur Rechtslage de lege lata einzustufen. Bislang mussten die Mitgliedstaaten bereit sein, über das Ausmaβ der Liberalisierung der Dienstleistungen, zu dem sie aufgrund der Richtlinien gemäβ Artikel 52 Absatz 1 AEUV verpflichtet sind, hinauszugehen. Diese ohnehin bereits sehr schwach formulierte Pflicht der Mitgliedstaaten wird nunmehr noch weicher gefasst, indem sie sich in Hinkunft lediglich bemühen müssen. Diese Änderung geht auf eine Forderung Frankreichs zurück, das damit erreichte, dass diese Bestimmung und die daraus erwachsende Pflicht realiter nicht mehr justitiabel ist.
Konsequentermaβen hätte auf Grund dieser Änderung die gesamte Bestimmung gestrichen werden können, da ohnehin nur mehr die Fiktion der Pflicht aufrechterhalten wird.“
***
The provision expresses a fairly weak wish, anyhow, so it is no wonder that it has not drawn that much attention. But, somewhere during the IGC 2004 and IGC 2007 decisions have been made on express amendments. Surely with some intention?
For me, the allotted time is at an end, so I leave the rest to you during my time-out. .
Ralf Grahn
A riddle wrapped in a mystery inside an enigma?
***
The Treaty of Lisbon (ToL) amends Article 53 of the Treaty establishing the European Community (TEC) in the following way (OJ 17.12.2007 C 306/55):
59) In Article 53, the words ‘declare their readiness to’ shall be replaced by ‘shall endeavour to’.
***
As usual, the surrounding words have to be found in the latest consolidated version of the current treaties (OJ 29.12.2006 C 321 E/63):
Article 53 TEC
The Member States declare their readiness to undertake the liberalisation of services beyond the extent required by the directives issued pursuant to Article 52(1), if their general economic situation and the situation of the economic sector concerned so permit.
To this end, the Commission shall make recommendations to the Member States concerned.
***
In order to arrive at a new consolidated version of the provision according to the Lisbon Treaty, there are a few things to do: The specific amendment has to be inserted, possible horizontal amendments checked (none in this case) and the renumbering of the Article and the referral executed (Tables of equivalences) plus the location of the provision indicated for ease of comprehension:
Part Three ‘Policies and internal actions of the Union’
Title III (renumbered Title IV TFEU) ‘Free movement of persons, services and capital’
Chapter 3 ‘Services’
Article 53 TFEU (ToL), renumbered Article 60 TFEU
The Member States shall endeavour to undertake the liberalisation of services beyond the extent required by the directives issued pursuant to Article 52(1) [ToL, renumbered Article 59(1) TFEU], if their general economic situation and the situation of the economic sector concerned so permit.
To this end, the Commission shall make recommendations to the Member States concerned.
***
Article III-33 of the draft Treaty establishing a Constitution for Europe was essentially the same as the current TEC provision. In other words, the member states ‘declare their readiness’ (OJ 18.7.2003 C 169/33).
***
Article III-148 of the Treaty establishing a Constitution for Europe contained a small, but perhaps significant change of wording. Therefore, we present the proposed text here (OJ 16.12.2004 C 310/64):
Article III-148 Constitution
The Member States shall endeavour to undertake liberalisation of services beyond the extent required by the European framework laws adopted pursuant to Article III-147(1), if their general economic situation and the situation of the economic sector concerned so permit.
To this end, the Commission shall make recommendations to the Member States concerned.
***
We see that there has been one change with some potential meaning between the current TEC and the Lisbon Treaty. It occurred during the IGC 2004 and appeared in the Constitutional Treaty.
‘The Member States declare their readiness’ became ‘The Member States shall endeavour’ to undertake liberalisation of services beyond the extent required.
Since the change of wording was express, it presumably has some meaning. What could it be?
***
The UK Foreign and Commonwealth Office (FCO) offers the following interpretation of Article 60 TFEU (Article 53 ToL) in ‘A comparative table of the current EC and EU treaties as amended by the Treaty of Lisbon’ (Command paper 7311; page 9):
“In substance the same as Article 53 TEC.”
The UK House of Commons Library Research Paper 07/86 (6 December 2007) presents the following view (page 31):
“Article 53 states that Member States “shall endeavour to” instead of “declare their readiness to” liberalise services beyond the requirements of directives adopted under Article 51 if they are able to. The stronger terminology is in line with the general requirement for solidarity.”
Our following example is the German ratification bill, „Gesetzentwurf der Bundesregierung: Entwurf eines Gesetzes zum Vertrag von Lissabon vom 13. Dezember 2007, Drucksache 16/8300, 28.02.2008“ (page 173):
Nummer 59: Artikel 53 [Artikel 60] wird geändert und an den Wortlaut von Artikel III-148 Ver- fassungsvertrag angepasst. Er verstärkt den Appell an die Mitgliedstaaten, bei der Liberalisierung des Dienstleistungsverkehrs innerhalb der Union über den durch Richtlinien festgelegten Min- deststandard hinauszugehen, indem die bisherige Erklä- rung der Bereitschaft durch eine Bemühenszusage ersetzt wird.“
Until now, we have one neutral assessment (FCO), and two interpretations underlining the stronger appeal to liberalisation of services: First, the UK Commons Library, although I fail to grasp the reference to solidarity, and second, the German federal government.
I tried to scan the IIEA Consolidated and annotated version of the treaties, the Swedish government’s presentation of the Lisbon Treaty (Ds 2007:48) and the ratification bill of the government of Finland (HE 23/2008 vp in Finnish, RP 23/2008 rd in Swedish) as well as the following documents of the French Assemblée nationale, namely Projet de loi (6 février 2008) and Rapport d’information No 562 Tome 1 & Tome 2 (8 janvier 2008), plus a number of comments on the Constitutional Treaty without finding any qualitative assessment.
***
Contrast this with the description and assessment of Klemens H. Fischer in “Der Vertrag von Lissabon” (Nomos, Stämpfli and Verlag Österreich; page 221):
„Diese Änderung ist substantiell und als Rückschritt zur Rechtslage de lege lata einzustufen. Bislang mussten die Mitgliedstaaten bereit sein, über das Ausmaβ der Liberalisierung der Dienstleistungen, zu dem sie aufgrund der Richtlinien gemäβ Artikel 52 Absatz 1 AEUV verpflichtet sind, hinauszugehen. Diese ohnehin bereits sehr schwach formulierte Pflicht der Mitgliedstaaten wird nunmehr noch weicher gefasst, indem sie sich in Hinkunft lediglich bemühen müssen. Diese Änderung geht auf eine Forderung Frankreichs zurück, das damit erreichte, dass diese Bestimmung und die daraus erwachsende Pflicht realiter nicht mehr justitiabel ist.
Konsequentermaβen hätte auf Grund dieser Änderung die gesamte Bestimmung gestrichen werden können, da ohnehin nur mehr die Fiktion der Pflicht aufrechterhalten wird.“
***
The provision expresses a fairly weak wish, anyhow, so it is no wonder that it has not drawn that much attention. But, somewhere during the IGC 2004 and IGC 2007 decisions have been made on express amendments. Surely with some intention?
For me, the allotted time is at an end, so I leave the rest to you during my time-out. .
Ralf Grahn
Monday, 14 April 2008
EU TFEU: Directives on specific services
The EU’s Treaty of Lisbon strengthens the role of the directly elected European Parliament by the extended use of the ‘ordinary legislative procedure’ (co-decision).
Article 52 of the Treaty establishing the European Community is one example of this, in the context of specific services. In practice, though, there are a number of reasons why the practical change is less than it seems in this specific case.
We follow the route of the current treaty, the draft Constitution, the Constitutional Treaty and the Lisbon Treaty to end up with a consolidated version of the Article as part of the Treaty on the Functioning of the European Union, although our progress is not chronological.
***
The Treaty of Lisbon (ToL) makes an amendment to Article 52 of the Treaty establishing the European Community (TEC). This is what the intergovernmental conference (IGC 2007) says in point 58 (OJ 17.12.2007 C 306/55):
58) In Article 52(1), the words ‘the Council shall, on a proposal from the Commission and after consulting the Economic and Social Committee and the European Parliament, issue’ shall be replaced by ‘the European Parliament and the Council, acting in accordance with the ordinary legislative procedure and after consulting the Economic and Social Committee, shall issue’.
***
The surrounding words are found in the latest consolidated version of the current treaties, the TEU and the TEC, in OJ 29.12.2006 C 321 E/63:
Article 52 TEC
1. In order to achieve the liberalisation of a specific service, the Council shall, on a proposal from the Commission and after consulting the Economic and Social Committee and the European Parliament, issue directives acting by a qualified majority.
2. As regards the directives referred to in paragraph 1, priority shall as a general rule be given to those services which directly affect production costs or the liberalisation of which helps to promote trade in goods.
***
There is one specific amendment and one horizontal amendment to be made, deleting ‘acting by a qualified majority’ according to point 2(d), but we add the renumbering of the Article and the location of the provision from the Tables of equivalences. This is what the Article should look like according to the Lisbon Treaty, where it forms part of the Treaty on the Functioning of the European Union (TFEU):
Part Three ‘Policies and internal actions of the Union’
Title III (renumbered Title IV) ‘Free movement of persons, services and capital’
Chapter 3 ‘Services’
Article 52 TFEU (ToL), renumbered Article 59 TFEU
1. In order to achieve the liberalisation of a specific service, the European Parliament and the Council, acting in accordance with the ordinary legislative procedure and after consulting the Economic and Social Committee, shall issue directives.
2. As regards the directives referred to in paragraph 1, priority shall as a general rule be given to those services which directly affect production costs or the liberalisation of which helps to promote trade in goods.
***
The corresponding provision in the draft Treaty establishing a Constitution for Europe was Article III-32 (OJ 18.7.2003 C 169/33):
Article III-32 Draft Constitution
1. A European framework law shall establish the measures in order to achieve the liberalisation of a specific service. It shall be adopted after consultation of the Economic and Social Committee.
2. As regards the European framework law referred to in paragraph 1, priority shall as a general rule be given to those services which directly affect production costs or the liberalisation of which helps to promote trade in goods.
***
The IGC 2004 took over the draft text with minor retouches in Article III-147 of the Treaty establishing a Constitution for Europe (OJ 16.12.2004 C 310/64):
Article III-147 Constitution
1. European framework laws shall establish measures to achieve the liberalisation of a specific
service. They shall be adopted after consultation of the Economic and Social Committee.
2. European framework laws referred to in paragraph 1 shall as a general rule give priority to those services which directly affect production costs or the liberalisation of which helps to promote trade in goods.
***
Between the current TEC and the proposed Lisbon Treaty there is one substantial amendment, namely that the ordinary legislative procedure (co-decision) shall apply to directives issued on this legal base. This change was introduced by the European Convention.
The UK Foreign and Commonwealth Office (FCO) correctly describes Article 59 TFEU (Article 52 ToL) in ‘A comparative table of the current EC and EU Treaties as amended by the Treaty of Lisbon’ (Command paper 7311; page 9):
“Draws on Article 52 TEC. QMV already applies, decision-making moves to co-decision.”
Because the new names for the legal instruments were scrapped by the IGC 2007 as part of the ‘constitutional concept’, the efforts by the European Convention and the IGC 2004 to introduce plainer language fell by the wayside.
***
In practice, the victory for the European Parliament is more numerical than actual, since most EC (EU) legislation on services has been based on other provisions. Thus, co-decision has been the norm.
The direct effect of treaty provisions on free movement and the limited scope of Article 52 TEC (specific services) have also diminished its importance as a legal base.
The loosely accorded priority given by Article 52(2) TEC to services affecting production costs or helping to promote trade in goods have been of minor significance.
Ralf Grahn
Article 52 of the Treaty establishing the European Community is one example of this, in the context of specific services. In practice, though, there are a number of reasons why the practical change is less than it seems in this specific case.
We follow the route of the current treaty, the draft Constitution, the Constitutional Treaty and the Lisbon Treaty to end up with a consolidated version of the Article as part of the Treaty on the Functioning of the European Union, although our progress is not chronological.
***
The Treaty of Lisbon (ToL) makes an amendment to Article 52 of the Treaty establishing the European Community (TEC). This is what the intergovernmental conference (IGC 2007) says in point 58 (OJ 17.12.2007 C 306/55):
58) In Article 52(1), the words ‘the Council shall, on a proposal from the Commission and after consulting the Economic and Social Committee and the European Parliament, issue’ shall be replaced by ‘the European Parliament and the Council, acting in accordance with the ordinary legislative procedure and after consulting the Economic and Social Committee, shall issue’.
***
The surrounding words are found in the latest consolidated version of the current treaties, the TEU and the TEC, in OJ 29.12.2006 C 321 E/63:
Article 52 TEC
1. In order to achieve the liberalisation of a specific service, the Council shall, on a proposal from the Commission and after consulting the Economic and Social Committee and the European Parliament, issue directives acting by a qualified majority.
2. As regards the directives referred to in paragraph 1, priority shall as a general rule be given to those services which directly affect production costs or the liberalisation of which helps to promote trade in goods.
***
There is one specific amendment and one horizontal amendment to be made, deleting ‘acting by a qualified majority’ according to point 2(d), but we add the renumbering of the Article and the location of the provision from the Tables of equivalences. This is what the Article should look like according to the Lisbon Treaty, where it forms part of the Treaty on the Functioning of the European Union (TFEU):
Part Three ‘Policies and internal actions of the Union’
Title III (renumbered Title IV) ‘Free movement of persons, services and capital’
Chapter 3 ‘Services’
Article 52 TFEU (ToL), renumbered Article 59 TFEU
1. In order to achieve the liberalisation of a specific service, the European Parliament and the Council, acting in accordance with the ordinary legislative procedure and after consulting the Economic and Social Committee, shall issue directives.
2. As regards the directives referred to in paragraph 1, priority shall as a general rule be given to those services which directly affect production costs or the liberalisation of which helps to promote trade in goods.
***
The corresponding provision in the draft Treaty establishing a Constitution for Europe was Article III-32 (OJ 18.7.2003 C 169/33):
Article III-32 Draft Constitution
1. A European framework law shall establish the measures in order to achieve the liberalisation of a specific service. It shall be adopted after consultation of the Economic and Social Committee.
2. As regards the European framework law referred to in paragraph 1, priority shall as a general rule be given to those services which directly affect production costs or the liberalisation of which helps to promote trade in goods.
***
The IGC 2004 took over the draft text with minor retouches in Article III-147 of the Treaty establishing a Constitution for Europe (OJ 16.12.2004 C 310/64):
Article III-147 Constitution
1. European framework laws shall establish measures to achieve the liberalisation of a specific
service. They shall be adopted after consultation of the Economic and Social Committee.
2. European framework laws referred to in paragraph 1 shall as a general rule give priority to those services which directly affect production costs or the liberalisation of which helps to promote trade in goods.
***
Between the current TEC and the proposed Lisbon Treaty there is one substantial amendment, namely that the ordinary legislative procedure (co-decision) shall apply to directives issued on this legal base. This change was introduced by the European Convention.
The UK Foreign and Commonwealth Office (FCO) correctly describes Article 59 TFEU (Article 52 ToL) in ‘A comparative table of the current EC and EU Treaties as amended by the Treaty of Lisbon’ (Command paper 7311; page 9):
“Draws on Article 52 TEC. QMV already applies, decision-making moves to co-decision.”
Because the new names for the legal instruments were scrapped by the IGC 2007 as part of the ‘constitutional concept’, the efforts by the European Convention and the IGC 2004 to introduce plainer language fell by the wayside.
***
In practice, the victory for the European Parliament is more numerical than actual, since most EC (EU) legislation on services has been based on other provisions. Thus, co-decision has been the norm.
The direct effect of treaty provisions on free movement and the limited scope of Article 52 TEC (specific services) have also diminished its importance as a legal base.
The loosely accorded priority given by Article 52(2) TEC to services affecting production costs or helping to promote trade in goods have been of minor significance.
Ralf Grahn
Sunday, 13 April 2008
EU TFEU: Transport, banking and insurance services
Important sectors of economic activity, such as transport, banking and insurance (financial services) are treated distinctly in the context of free movement of services within the European Community (European Union).
We look at the current Article 51 of the Treaty establishing the European Community and its position in the EU Treaty of Lisbon.
Further reading is suggested for readers interested in EU law and policies concerning the transport and financial services sectors.
***
The Treaty of Lisbon (ToL) makes no specific amendment to Article 51 of the Treaty establishing the European Community (TEC). Cf. point 57 and 58 in Official Journal (OJ) 17.12.2007 C 306/55.
***
The current Article 51 TEC is found in the latest consolidated version of the treaties, TEU and TEC, in OJ 29.12.2006 C 321 E/62:
Article 51 TEC
1. Freedom to provide services in the field of transport shall be governed by the provisions of the title relating to transport.
2. The liberalisation of banking and insurance services connected with movements of capital shall be effected in step with the liberalisation of movement of capital.
***
According to the Lisbon Treaty, the provision should look like this in the Treaty on the Functioning of the European Union (TFEU) when we add the location of the Article and the future renumbering from the Tables of equivalences (OJ 17.12.2007 C 306/207-208) and note that no horizontal amendments seem to apply (Cf. OJ 17.12.2007 C 306/41-44):
Part Three ‘Policies and internal actions of the Union’
Title III (renumbered Title IV) ‘Free movement of persons, services and capital’
Chapter 3 ‘Services’
Article 51 TFEU (ToL), renumbered Article 58 TFEU
1. Freedom to provide services in the field of transport shall be governed by the provisions of the title relating to transport.
2. The liberalisation of banking and insurance services connected with movements of capital shall be effected in step with the liberalisation of movement of capital.
***
The first paragraph of Article III-31 of the draft Treaty establishing a Constitution for Europe referred to the ‘Section’ instead of the ‘title’ relating to transport, but proposed no other change (OJ 18.7.2003 C 169/33).
***
Only the referral to ‘Section 7 of Chapter III’ relating to transport differed from the other versions in Article III-146 of the Treaty establishing a Constitution for Europe (OJ 16.12.2004 C 310/63).
***
In short, between Nice and Lisbon only technical adjustments have been proposed, boiling down to the renumbering effected by the Treaty of Lisbon.
***
Article 51 TEC and ToL, renumbered Article 58 TFEU, encompasses the principle of freedom to provide services in the field of transport, but excepts transport services from the scope of the general chapter on services (Chapter 3).
TEC Title V ‘Transport’ reigns as ‘lex specialis’, meaning the current Articles 70 to 80 TEC on the common transport policy.
This corresponds with Title V ‘Transport’, Articles 70 to 80 ToL, but after renumbering these provisions are found in Title VI ‘Transport’, Articles 90 to 100 TFEU.
***
Banking and insurance are treated differently. Liberalisation of these sectors is supposed to advance in step with measures to open up the capital markets.
The second paragraph refers to the current Chapter 4 ‘Capital and payments’, Articles 56 to 60 TEC.
The corresponding ToL chapter is Chapter 4 ‘Capital and payments’, Articles 56 to 59 (with Article 61h ToL being renumbered Article 75 TFEU and moved to the provisions on the area of freedom, security and justice).
In the consolidated Lisbon Treaty Chapter 4 ‘Capital and payments’ includes the Articles 63 to 66 TFEU.
***
The interested reader can move directly to the sector specific treaty provisions mentioned above. This series of blog posts is advancing one Article at a time, so we will look at these provisions in due time.
At this stage, some further reading is suggested for interested readers.
***
Transport
A general introduction to EU transport policies is offered through the links of the European Commission’s Transport home page:
http://ec.europa.eu/transport/index_en.html
The European Commission dedicates pages 76 to 83 of its ‘General Report on the Activities of the European Union 2007’ to transport with subheadings on rail transport, road transport, maritime transport, inland navigation, air transport, intermodal approach (Galileo), international developments and Trans-European transport networks (TEN-T).
The government of Sweden publishes yearly reports to the parliament (and the public) on the activities of the European institutions: the EU, the Council of Europe and the OSCE. The depth of the EU report ‘Regeringens skrivelse 2007/08: 85 Berättelse om verksamheten i Europeiska unionen under 2007’, published 6 March 2008, is fully comparable to that of the Commission.
Part 7 (Del 7 Transporter, elektroniska kommunikationer och energi) deals with transport policy from page 163 to 180.
***
Banking and insurance (financial services; capital and payments)
A starting point for EU policies on financial services is offered through the links on the Commission’s internal market web page ‘Financial Services – General Policy:
http://ec.europa.eu/internal_market/finances/index_en.htm
Under the heading ‘Freedom to provide services and freedom of establishment’ the European Commission deals with developments concerning financial services on pages 50 to 53 of its ‘General Report on the Activities of the European Union 2007’.
Part 6 on competitiveness (Del 6 Konkurrenskraftsfrågor) of the Swedish report on EU activities in 2007 includes Chapter 29 on the free movement of services and capital (29 Fri rörlighet för tjänster och kapital), from page 139 to 142.
The UK House of Lords European Union Committee’s report ‘Single Market: Wallflower of Dancing Partner? Inquiry into the European Commission’s Review of the Single Market, Volume I: Report (HL Paper 36-I, published 8 February 2008) dedicates Chapter 7 to financial services (page 32 to 37).
The starting point of this timely assessment was the Committee’s feeling of an area in which the lack of progress has been disappointing.
***
The separateness of transport services and the parallel introduction of measures concerning banking and insurance services (financial services) with liberalisation of capital markets is underlined by the fact that they are excluded from the scope of the general Services Directive, to be implemented by the member states before 28 December 2009.
See Article 1 ‘Subject matter’, Article 2 ‘Scope’ and Article 3 ‘Relationship with other provisions of Community law’ of Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market, OJ 27.12.2006 L 376, p. 36–68:
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2006:376:0036:0068:EN:PDF
The express exclusion of transport services follows from Article 2(2)(d) and of financial services, such as banking and insurance from Article 2(2)(b) of the general Services Directive.
Ralf Grahn
We look at the current Article 51 of the Treaty establishing the European Community and its position in the EU Treaty of Lisbon.
Further reading is suggested for readers interested in EU law and policies concerning the transport and financial services sectors.
***
The Treaty of Lisbon (ToL) makes no specific amendment to Article 51 of the Treaty establishing the European Community (TEC). Cf. point 57 and 58 in Official Journal (OJ) 17.12.2007 C 306/55.
***
The current Article 51 TEC is found in the latest consolidated version of the treaties, TEU and TEC, in OJ 29.12.2006 C 321 E/62:
Article 51 TEC
1. Freedom to provide services in the field of transport shall be governed by the provisions of the title relating to transport.
2. The liberalisation of banking and insurance services connected with movements of capital shall be effected in step with the liberalisation of movement of capital.
***
According to the Lisbon Treaty, the provision should look like this in the Treaty on the Functioning of the European Union (TFEU) when we add the location of the Article and the future renumbering from the Tables of equivalences (OJ 17.12.2007 C 306/207-208) and note that no horizontal amendments seem to apply (Cf. OJ 17.12.2007 C 306/41-44):
Part Three ‘Policies and internal actions of the Union’
Title III (renumbered Title IV) ‘Free movement of persons, services and capital’
Chapter 3 ‘Services’
Article 51 TFEU (ToL), renumbered Article 58 TFEU
1. Freedom to provide services in the field of transport shall be governed by the provisions of the title relating to transport.
2. The liberalisation of banking and insurance services connected with movements of capital shall be effected in step with the liberalisation of movement of capital.
***
The first paragraph of Article III-31 of the draft Treaty establishing a Constitution for Europe referred to the ‘Section’ instead of the ‘title’ relating to transport, but proposed no other change (OJ 18.7.2003 C 169/33).
***
Only the referral to ‘Section 7 of Chapter III’ relating to transport differed from the other versions in Article III-146 of the Treaty establishing a Constitution for Europe (OJ 16.12.2004 C 310/63).
***
In short, between Nice and Lisbon only technical adjustments have been proposed, boiling down to the renumbering effected by the Treaty of Lisbon.
***
Article 51 TEC and ToL, renumbered Article 58 TFEU, encompasses the principle of freedom to provide services in the field of transport, but excepts transport services from the scope of the general chapter on services (Chapter 3).
TEC Title V ‘Transport’ reigns as ‘lex specialis’, meaning the current Articles 70 to 80 TEC on the common transport policy.
This corresponds with Title V ‘Transport’, Articles 70 to 80 ToL, but after renumbering these provisions are found in Title VI ‘Transport’, Articles 90 to 100 TFEU.
***
Banking and insurance are treated differently. Liberalisation of these sectors is supposed to advance in step with measures to open up the capital markets.
The second paragraph refers to the current Chapter 4 ‘Capital and payments’, Articles 56 to 60 TEC.
The corresponding ToL chapter is Chapter 4 ‘Capital and payments’, Articles 56 to 59 (with Article 61h ToL being renumbered Article 75 TFEU and moved to the provisions on the area of freedom, security and justice).
In the consolidated Lisbon Treaty Chapter 4 ‘Capital and payments’ includes the Articles 63 to 66 TFEU.
***
The interested reader can move directly to the sector specific treaty provisions mentioned above. This series of blog posts is advancing one Article at a time, so we will look at these provisions in due time.
At this stage, some further reading is suggested for interested readers.
***
Transport
A general introduction to EU transport policies is offered through the links of the European Commission’s Transport home page:
http://ec.europa.eu/transport/index_en.html
The European Commission dedicates pages 76 to 83 of its ‘General Report on the Activities of the European Union 2007’ to transport with subheadings on rail transport, road transport, maritime transport, inland navigation, air transport, intermodal approach (Galileo), international developments and Trans-European transport networks (TEN-T).
The government of Sweden publishes yearly reports to the parliament (and the public) on the activities of the European institutions: the EU, the Council of Europe and the OSCE. The depth of the EU report ‘Regeringens skrivelse 2007/08: 85 Berättelse om verksamheten i Europeiska unionen under 2007’, published 6 March 2008, is fully comparable to that of the Commission.
Part 7 (Del 7 Transporter, elektroniska kommunikationer och energi) deals with transport policy from page 163 to 180.
***
Banking and insurance (financial services; capital and payments)
A starting point for EU policies on financial services is offered through the links on the Commission’s internal market web page ‘Financial Services – General Policy:
http://ec.europa.eu/internal_market/finances/index_en.htm
Under the heading ‘Freedom to provide services and freedom of establishment’ the European Commission deals with developments concerning financial services on pages 50 to 53 of its ‘General Report on the Activities of the European Union 2007’.
Part 6 on competitiveness (Del 6 Konkurrenskraftsfrågor) of the Swedish report on EU activities in 2007 includes Chapter 29 on the free movement of services and capital (29 Fri rörlighet för tjänster och kapital), from page 139 to 142.
The UK House of Lords European Union Committee’s report ‘Single Market: Wallflower of Dancing Partner? Inquiry into the European Commission’s Review of the Single Market, Volume I: Report (HL Paper 36-I, published 8 February 2008) dedicates Chapter 7 to financial services (page 32 to 37).
The starting point of this timely assessment was the Committee’s feeling of an area in which the lack of progress has been disappointing.
***
The separateness of transport services and the parallel introduction of measures concerning banking and insurance services (financial services) with liberalisation of capital markets is underlined by the fact that they are excluded from the scope of the general Services Directive, to be implemented by the member states before 28 December 2009.
See Article 1 ‘Subject matter’, Article 2 ‘Scope’ and Article 3 ‘Relationship with other provisions of Community law’ of Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market, OJ 27.12.2006 L 376, p. 36–68:
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2006:376:0036:0068:EN:PDF
The express exclusion of transport services follows from Article 2(2)(d) and of financial services, such as banking and insurance from Article 2(2)(b) of the general Services Directive.
Ralf Grahn
Saturday, 12 April 2008
EU Lisbon Treaty ratification bill Finland
The government bill on ratification of the Treaty of Lisbon has been published on the web.
Officially, it goes under the name: 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)
The 572 page packet can be downloaded in Finnish here:
http://www.finlex.fi/fi/esitykset/he/2008/20080023.pdf
The Swedish version is called: 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)
The Swedish language version is found here:
http://www.finlex.fi/sv/esitykset/he/2008/20080023.pdf
Prime minister Matti Vanhanen’s speech can be found in Finnish:
http://www.vn.fi/ajankohtaista/puheet/puhe/fi.jsp?oid=225798
Vanhanen’s speech on Lisbon Treaty ratification in Swedish here:
http://www.vn.fi/ajankohtaista/puheet/puhe/fi.jsp?oid=225817
Ralf Grahn
Officially, it goes under the name: 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)
The 572 page packet can be downloaded in Finnish here:
http://www.finlex.fi/fi/esitykset/he/2008/20080023.pdf
The Swedish version is called: 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)
The Swedish language version is found here:
http://www.finlex.fi/sv/esitykset/he/2008/20080023.pdf
Prime minister Matti Vanhanen’s speech can be found in Finnish:
http://www.vn.fi/ajankohtaista/puheet/puhe/fi.jsp?oid=225798
Vanhanen’s speech on Lisbon Treaty ratification in Swedish here:
http://www.vn.fi/ajankohtaista/puheet/puhe/fi.jsp?oid=225817
Ralf Grahn
EU TFEU: Scope of services
The European Court of Justice (ECJ) has done much to give meaning to the treaty provisions regarding the right to provide (and to receive) cross-border services within the European Community (European Union).
By preserving the treaty rules, the Treaty of Lisbon upholds the benefits of the internal market to both service providers and receivers of services.
We look at a short reform history of Article 50 of the Treaty establishing the European Community, with examples of services, and we suggest further reading for the ones who want to explore the context.
***
The Treaty of Lisbon (ToL) makes the briefest mention of Article 50 of the Treaty establishing the European Community (TEC). The only express amendment, in OJ 17.12.2007 C 306/55 is the following:
57) In Article 50, third paragraph, the words ‘the State’ shall be replaced by ‘the Member State’.
***
The surrounding provision is found in the latest consolidated version of the treaties, the current TEU and TEC, in the Official Journal (OJ 29.12.2006 C 321 E/62):
Article 50 TEC
Services shall be considered to be ‘services’ within the meaning of this Treaty where they are normally provided for remuneration, in so far as they are not governed by the provisions relating to freedom of movement for goods, capital and persons.
‘Services’ shall in particular include:
(a) activities of an industrial character;
(b) activities of a commercial character;
(c) activities of craftsmen;
(d) activities of the professions.
Without prejudice to the provisions of the Chapter relating to the right of establishment, the person providing a service may, in order to do so, temporarily pursue his activity in the State where the service is provided, under the same conditions as are imposed by that State on its own nationals.
***
If the Lisbon Treaty enters into force, the provision should exist in the following context, with the express and horizontal amendments as well as renumbering concerning the Treaty on the Functioning of the European Union (TFEU):
Part Three ‘Policies and internal actions of the Union’
Title III (renumbered Title IV) ‘Free movement of persons, services and capital’
Chapter 3 ‘Services’
Article 50 TFEU (ToL), renumbered Article 57 TFEU
Services shall be considered to be ‘services’ within the meaning of the Treaties where they are normally provided for remuneration, in so far as they are not governed by the provisions relating to freedom of movement for goods, capital and persons.
‘Services’ shall in particular include:
(a) activities of an industrial character;
(b) activities of a commercial character;
(c) activities of craftsmen;
(d) activities of the professions.
Without prejudice to the provisions of the Chapter relating to the right of establishment, the person providing a service may, in order to do so, temporarily pursue his activity in the Member State where the service is provided, under the same conditions as are imposed by that State on its own nationals.
***
Article III-30 of the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/33) and Article III-145 of the Treaty establishing a Constitution for Europe (OJ 16.12.2004 C 310/63) differ so little from the current and future provision that it is there is no need to repeat them here.
***
The UK FCO’s ‘A comparative table of the current EC and EU treaties as amended by the Treaty of Lisbon’ (Command paper 7311) concludes, quite correctly, that Article 57 TFEU (Article 50 ToL) is:
“In substance the same as Article 50 TEC.”
***
Yesterday’s post ‘EU TFEU: Freedom to provide services’ looked at the drafting history of Article 49 TEC and ToL (renumbered Article 56 TFEU) and suggested a number of web resources for further study.
Today, we recommend a book text on the substantive EU law on services:
Josephine Steiner, Lorna Woods and Christian Twigg-Flesner: EU Law Ninth Edition (Oxford University Press, 2006), Chapter 22 ‘Freedom to provide services; freedom to receive services’ (page 468 to 493), which describes the evolution of ECJ jurisprudence on services.
With the marginal changes of the Lisbon Treaty (not yet in force) readers can rely on the text concerning the treaty provisions, but since publication the so called Services Directive was finally enacted.
Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market, OJ 27.12.2006 L 376, p. 36–68:
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2006:376:0036:0068:EN:PDF
The Service Directive, addressed to the member states, has entered into force, but they have time until 28 December 2009 to transpose its provisions.
The Service Directive is much less distinguished by the quality of its contents than by the collective sigh of relief generated by the fact that it was enacted at all, having become one of the spectres haunting the French referendum debate on the Constitutional Treaty in 2005.
For the sake of fairness, a more upbeat view is presented by the UK Department for Business, Enterprise and Regulatory Reform (BERR) in its 5 November 2007 consultation paper ‘Implementing the Services Directive, Consultation Document on Implementing the EU Services Directive in the UK’, where Gareth Thomas MP, Parliamentary Under Secretary of State for Trade and Consumer Affairs, said (page 3):
“I believe the Service Directive is a genuinely market-opening measure that will bring real benefits to the UK.”
See:
http://www.berr.gov.uk/files/file42207.pdf
Ralf Grahn
By preserving the treaty rules, the Treaty of Lisbon upholds the benefits of the internal market to both service providers and receivers of services.
We look at a short reform history of Article 50 of the Treaty establishing the European Community, with examples of services, and we suggest further reading for the ones who want to explore the context.
***
The Treaty of Lisbon (ToL) makes the briefest mention of Article 50 of the Treaty establishing the European Community (TEC). The only express amendment, in OJ 17.12.2007 C 306/55 is the following:
57) In Article 50, third paragraph, the words ‘the State’ shall be replaced by ‘the Member State’.
***
The surrounding provision is found in the latest consolidated version of the treaties, the current TEU and TEC, in the Official Journal (OJ 29.12.2006 C 321 E/62):
Article 50 TEC
Services shall be considered to be ‘services’ within the meaning of this Treaty where they are normally provided for remuneration, in so far as they are not governed by the provisions relating to freedom of movement for goods, capital and persons.
‘Services’ shall in particular include:
(a) activities of an industrial character;
(b) activities of a commercial character;
(c) activities of craftsmen;
(d) activities of the professions.
Without prejudice to the provisions of the Chapter relating to the right of establishment, the person providing a service may, in order to do so, temporarily pursue his activity in the State where the service is provided, under the same conditions as are imposed by that State on its own nationals.
***
If the Lisbon Treaty enters into force, the provision should exist in the following context, with the express and horizontal amendments as well as renumbering concerning the Treaty on the Functioning of the European Union (TFEU):
Part Three ‘Policies and internal actions of the Union’
Title III (renumbered Title IV) ‘Free movement of persons, services and capital’
Chapter 3 ‘Services’
Article 50 TFEU (ToL), renumbered Article 57 TFEU
Services shall be considered to be ‘services’ within the meaning of the Treaties where they are normally provided for remuneration, in so far as they are not governed by the provisions relating to freedom of movement for goods, capital and persons.
‘Services’ shall in particular include:
(a) activities of an industrial character;
(b) activities of a commercial character;
(c) activities of craftsmen;
(d) activities of the professions.
Without prejudice to the provisions of the Chapter relating to the right of establishment, the person providing a service may, in order to do so, temporarily pursue his activity in the Member State where the service is provided, under the same conditions as are imposed by that State on its own nationals.
***
Article III-30 of the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/33) and Article III-145 of the Treaty establishing a Constitution for Europe (OJ 16.12.2004 C 310/63) differ so little from the current and future provision that it is there is no need to repeat them here.
***
The UK FCO’s ‘A comparative table of the current EC and EU treaties as amended by the Treaty of Lisbon’ (Command paper 7311) concludes, quite correctly, that Article 57 TFEU (Article 50 ToL) is:
“In substance the same as Article 50 TEC.”
***
Yesterday’s post ‘EU TFEU: Freedom to provide services’ looked at the drafting history of Article 49 TEC and ToL (renumbered Article 56 TFEU) and suggested a number of web resources for further study.
Today, we recommend a book text on the substantive EU law on services:
Josephine Steiner, Lorna Woods and Christian Twigg-Flesner: EU Law Ninth Edition (Oxford University Press, 2006), Chapter 22 ‘Freedom to provide services; freedom to receive services’ (page 468 to 493), which describes the evolution of ECJ jurisprudence on services.
With the marginal changes of the Lisbon Treaty (not yet in force) readers can rely on the text concerning the treaty provisions, but since publication the so called Services Directive was finally enacted.
Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market, OJ 27.12.2006 L 376, p. 36–68:
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2006:376:0036:0068:EN:PDF
The Service Directive, addressed to the member states, has entered into force, but they have time until 28 December 2009 to transpose its provisions.
The Service Directive is much less distinguished by the quality of its contents than by the collective sigh of relief generated by the fact that it was enacted at all, having become one of the spectres haunting the French referendum debate on the Constitutional Treaty in 2005.
For the sake of fairness, a more upbeat view is presented by the UK Department for Business, Enterprise and Regulatory Reform (BERR) in its 5 November 2007 consultation paper ‘Implementing the Services Directive, Consultation Document on Implementing the EU Services Directive in the UK’, where Gareth Thomas MP, Parliamentary Under Secretary of State for Trade and Consumer Affairs, said (page 3):
“I believe the Service Directive is a genuinely market-opening measure that will bring real benefits to the UK.”
See:
http://www.berr.gov.uk/files/file42207.pdf
Ralf Grahn
Friday, 11 April 2008
EU TFEU: Freedom to provide services
Services represent between 60 and 70 per cent of economic activity within the single market of the European Community (European Union), and the free movement of services is one of the four fundamental market freedoms of the internal market. But actually achieving a free flow of services is proving to be a continuing endeavour for the European Commission and the European Court of Justice, as witnessed by the laborious birth of new legislation and the abundance of infringement procedures.
The Treaty of Lisbon preserves the treaty level provision opening up the Chapter on Services in the Treaty on the Functioning of the European Union, and extends co-decision to measures aimed at third country nationals.
We look at the different stages of the treaty reform process, and we list resources for further reading regarding the freedom to provide services.
***
Arriving at Article 49 of the Treaty establishing the European Community (TEC), the intergovernmental conference (IGC) made the following amendments in the Treaty of Lisbon (OJ 17.12.2007 C 306/55):
SERVICES
56) Article 49 shall be amended as follows:
(a) in the first paragraph, the words ‘State of the Community’ shall be replaced by ‘Member State’;
(b) in the second paragraph, the words ‘The Council may, acting by a qualified majority on a proposal from the Commission, extend’ shall be replaced by ‘The European Parliament and the Council, acting in accordance with the ordinary legislative procedure, may extend’.
***
The current Article 49 TEC forms the basis, so we turn to the latest consolidated version of the treaties, in OJ 29.12.2006 C 321 E/62:
CHAPTER 3
SERVICES
Article 49 TEC
Within the framework of the provisions set out below, restrictions on freedom to provide services within the Community shall be prohibited in respect of nationals of Member States who are established in a State of the Community other than that of the person for whom the services are intended.
The Council may, acting by a qualified majority on a proposal from the Commission, extend the provisions of the Chapter to nationals of a third country who provide services and who are established within the Community.
***
We noticed from the TEC provision that we entered a new Chapter, and the Tables of equivalences confirm that the same holds true concerning the Treaty of Lisbon (ToL) and the Treaty on the Functioning of the European Union (TFEU).
We make the few retouches agreed by the IGC 2007 expressly or horizontally to present the consolidated version of the provision:
Part Three ‘Policies and internal actions of the Union’
Title III (renumbered Title IV) ‘Free movement of persons, services and capital’
Chapter 3 ‘Services’
Article 49 TFEU (ToL), renumbered Article 56 TFEU
Within the framework of the provisions set out below, restrictions on freedom to provide services within the Union shall be prohibited in respect of nationals of Member States who are established in a Member State other than that of the person for whom the services are intended.
The European Parliament and the Council, acting in accordance with the ordinary legislative procedure, may extend the provisions of the Chapter to nationals of a third country who provide services and who are established within the Union.
***
The European Convention extended ‘European laws or framework laws’ (the ordinary legislative procedure) to the second paragraph of Article III-29 of the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/33):
Subsection 3
Freedom to provide services
Article III-29 Draft Constitution
Within the framework of this Subsection, restrictions on freedom to provide services within the Union shall be prohibited in respect of nationals of Member States who are established in a Member State other than that of the person for whom the services are intended.
European laws or framework laws may extend this Subsection to nationals of a third country who provide services and who are established within the Union.
***
The Treaty establishing a Constitution for Europe made a small change to the wording in the second paragraph of Article III-144, ‘to service providers who are nationals of a third state and’, but nothing else.
***
We can see that the one substantive amendment was proposed by the European Convention.
Readers who enjoy a telegraphic style can, in this and other cases, turn to the Foreign and Commonwealth Office’s (FCO) ‘A comparative table of the current EC and EU Treaties as amended by the Treaty of Lisbon’ (Cm 7311). The text on Article 56 TFEU (49 ToL) sums it up neatly (page 9):
“Draws on Article 49 TEC. QMV already applies, decision-making moves to co-decision regarding extension to third country nationals.”
***
Students of European Community (European Union) law have their texts, cases and materials to turn to, and they are available to everyone, but let us think of a general reader, for instance a person or business providing services, who wants to find relevant information on the web.
Here are a few pointers, taking into account that some readers may be interested in general principles, while others would prefer sector-specific information.
The Commission’s Internal Market web page ‘General principles: Freedom to provide services / Freedom of establishment’ offers a succinct introduction:
http://ec.europa.eu/internal_market/services/principles_en.htm
There is a link to a ‘Guide to the Case Law of the European Court of Justice on Articles 49 et seq. EC Treaty: Freedom to Provide Services’, dated 1 January 2001, but with an update promised shortly.
Despite the late date of the last update of the page mentioned above (28 January 2008), we feel the need for fresh information. The web page ‘A Single Market for Services’ (last update 28 January 2008) offers a little bit more on the importance of services and secondary legislation:
http://ec.europa.eu/internal_market/top_layer/index_19_en.htm
But the main attraction of this web page is its collection of links to thematic pages starting to offer more specific answers:
General principles, leading on to infringement procedures 2005 – 2008:
http://ec.europa.eu/internal_market/services/infringements/index_en.htm
Services Directive, while just an opening page, it contains links to specific questions and the related Posting of workers directive:
http://ec.europa.eu/internal_market/services/services-dir/index_en.htm
Transparency of regulations, includes information on standards in the area of services:
http://ec.europa.eu/internal_market/services/transparency/index_en.htm
Professional qualifications, opens up more specific links on the new system for recognition of professional qualifications and to sources of practical information and problem solving:
http://ec.europa.eu/internal_market/qualifications/index_en.htm
Financial services, deals with three major areas of economic activity – banking, insurance and securities – through links leading to more detailed information:
http://ec.europa.eu/internal_market/top_layer/index_24_en.htm
Postal services, a short introductory page with a host of links:
http://ec.europa.eu/internal_market/post/index_en.htm
Business-related services, follows the pattern of general information and links to further information:
http://ec.europa.eu/internal_market/services/brs/index_en.htm
E-commerce, basic information and additional links on electronic commerce:
http://ec.europa.eu/internal_market/e-commerce/index_en.htm
Media, where the opening page ‘Media in the information society’ has a few additional links:
http://ec.europa.eu/internal_market/media/index_en.htm
Gambling, a highly lucrative and therefore contested area of services, where governments at all levels and private service providers vie for the money willingly offered by a gullible public. The Commission page contains links to a study on gambling and a list of infringement procedures:
http://ec.europa.eu/internal_market/services/gambling_en.htm
Pharmacy services, contains links to a study on pharmacy, but you may remember that for instance Sweden has been forced to re-think its state monopoly following an ECJ ruling:
http://ec.europa.eu/internal_market/services/pharmacy_en.htm
Services of general interest, links to a web site dedicated to services of general interest and to a few more related web pages:
http://ec.europa.eu/internal_market/top_layer/index_41_en.htm
***
All in all, I would say that the European Commission is not bad at presenting information about the different policy areas of the European Community (European Union), and many of the web pages are fairly well updated, but it is not always easy to find the specific information you need, and you may need both time and patience to find your way in the maze.
Ralf Grahn
The Treaty of Lisbon preserves the treaty level provision opening up the Chapter on Services in the Treaty on the Functioning of the European Union, and extends co-decision to measures aimed at third country nationals.
We look at the different stages of the treaty reform process, and we list resources for further reading regarding the freedom to provide services.
***
Arriving at Article 49 of the Treaty establishing the European Community (TEC), the intergovernmental conference (IGC) made the following amendments in the Treaty of Lisbon (OJ 17.12.2007 C 306/55):
SERVICES
56) Article 49 shall be amended as follows:
(a) in the first paragraph, the words ‘State of the Community’ shall be replaced by ‘Member State’;
(b) in the second paragraph, the words ‘The Council may, acting by a qualified majority on a proposal from the Commission, extend’ shall be replaced by ‘The European Parliament and the Council, acting in accordance with the ordinary legislative procedure, may extend’.
***
The current Article 49 TEC forms the basis, so we turn to the latest consolidated version of the treaties, in OJ 29.12.2006 C 321 E/62:
CHAPTER 3
SERVICES
Article 49 TEC
Within the framework of the provisions set out below, restrictions on freedom to provide services within the Community shall be prohibited in respect of nationals of Member States who are established in a State of the Community other than that of the person for whom the services are intended.
The Council may, acting by a qualified majority on a proposal from the Commission, extend the provisions of the Chapter to nationals of a third country who provide services and who are established within the Community.
***
We noticed from the TEC provision that we entered a new Chapter, and the Tables of equivalences confirm that the same holds true concerning the Treaty of Lisbon (ToL) and the Treaty on the Functioning of the European Union (TFEU).
We make the few retouches agreed by the IGC 2007 expressly or horizontally to present the consolidated version of the provision:
Part Three ‘Policies and internal actions of the Union’
Title III (renumbered Title IV) ‘Free movement of persons, services and capital’
Chapter 3 ‘Services’
Article 49 TFEU (ToL), renumbered Article 56 TFEU
Within the framework of the provisions set out below, restrictions on freedom to provide services within the Union shall be prohibited in respect of nationals of Member States who are established in a Member State other than that of the person for whom the services are intended.
The European Parliament and the Council, acting in accordance with the ordinary legislative procedure, may extend the provisions of the Chapter to nationals of a third country who provide services and who are established within the Union.
***
The European Convention extended ‘European laws or framework laws’ (the ordinary legislative procedure) to the second paragraph of Article III-29 of the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/33):
Subsection 3
Freedom to provide services
Article III-29 Draft Constitution
Within the framework of this Subsection, restrictions on freedom to provide services within the Union shall be prohibited in respect of nationals of Member States who are established in a Member State other than that of the person for whom the services are intended.
European laws or framework laws may extend this Subsection to nationals of a third country who provide services and who are established within the Union.
***
The Treaty establishing a Constitution for Europe made a small change to the wording in the second paragraph of Article III-144, ‘to service providers who are nationals of a third state and’, but nothing else.
***
We can see that the one substantive amendment was proposed by the European Convention.
Readers who enjoy a telegraphic style can, in this and other cases, turn to the Foreign and Commonwealth Office’s (FCO) ‘A comparative table of the current EC and EU Treaties as amended by the Treaty of Lisbon’ (Cm 7311). The text on Article 56 TFEU (49 ToL) sums it up neatly (page 9):
“Draws on Article 49 TEC. QMV already applies, decision-making moves to co-decision regarding extension to third country nationals.”
***
Students of European Community (European Union) law have their texts, cases and materials to turn to, and they are available to everyone, but let us think of a general reader, for instance a person or business providing services, who wants to find relevant information on the web.
Here are a few pointers, taking into account that some readers may be interested in general principles, while others would prefer sector-specific information.
The Commission’s Internal Market web page ‘General principles: Freedom to provide services / Freedom of establishment’ offers a succinct introduction:
http://ec.europa.eu/internal_market/services/principles_en.htm
There is a link to a ‘Guide to the Case Law of the European Court of Justice on Articles 49 et seq. EC Treaty: Freedom to Provide Services’, dated 1 January 2001, but with an update promised shortly.
Despite the late date of the last update of the page mentioned above (28 January 2008), we feel the need for fresh information. The web page ‘A Single Market for Services’ (last update 28 January 2008) offers a little bit more on the importance of services and secondary legislation:
http://ec.europa.eu/internal_market/top_layer/index_19_en.htm
But the main attraction of this web page is its collection of links to thematic pages starting to offer more specific answers:
General principles, leading on to infringement procedures 2005 – 2008:
http://ec.europa.eu/internal_market/services/infringements/index_en.htm
Services Directive, while just an opening page, it contains links to specific questions and the related Posting of workers directive:
http://ec.europa.eu/internal_market/services/services-dir/index_en.htm
Transparency of regulations, includes information on standards in the area of services:
http://ec.europa.eu/internal_market/services/transparency/index_en.htm
Professional qualifications, opens up more specific links on the new system for recognition of professional qualifications and to sources of practical information and problem solving:
http://ec.europa.eu/internal_market/qualifications/index_en.htm
Financial services, deals with three major areas of economic activity – banking, insurance and securities – through links leading to more detailed information:
http://ec.europa.eu/internal_market/top_layer/index_24_en.htm
Postal services, a short introductory page with a host of links:
http://ec.europa.eu/internal_market/post/index_en.htm
Business-related services, follows the pattern of general information and links to further information:
http://ec.europa.eu/internal_market/services/brs/index_en.htm
E-commerce, basic information and additional links on electronic commerce:
http://ec.europa.eu/internal_market/e-commerce/index_en.htm
Media, where the opening page ‘Media in the information society’ has a few additional links:
http://ec.europa.eu/internal_market/media/index_en.htm
Gambling, a highly lucrative and therefore contested area of services, where governments at all levels and private service providers vie for the money willingly offered by a gullible public. The Commission page contains links to a study on gambling and a list of infringement procedures:
http://ec.europa.eu/internal_market/services/gambling_en.htm
Pharmacy services, contains links to a study on pharmacy, but you may remember that for instance Sweden has been forced to re-think its state monopoly following an ECJ ruling:
http://ec.europa.eu/internal_market/services/pharmacy_en.htm
Services of general interest, links to a web site dedicated to services of general interest and to a few more related web pages:
http://ec.europa.eu/internal_market/top_layer/index_41_en.htm
***
All in all, I would say that the European Commission is not bad at presenting information about the different policy areas of the European Community (European Union), and many of the web pages are fairly well updated, but it is not always easy to find the specific information you need, and you may need both time and patience to find your way in the maze.
Ralf Grahn
Thursday, 10 April 2008
EU TFEU: Equality for investors
The EU Treaty of Lisbon accords capital investors from other member states equal treatment with nationals of the state of the company or firm. This declaratory or clarifying provision, Article 294 of the Treaty establishing the European Community, is moved into a more logical context within the Treaty of Lisbon, but without added substance.
***
In the Treaty of Lisbon (ToL), point 55, the intergovernmental conference (IGC 2007) decided to shift the location of Article 294 of the Treaty establishing the European Community (TEC). See Official Journal, OJ, 17.12.2007 C 306/55:
55) An Article 48a shall be inserted, with the wording of Article 294.
***
Our first task is to look up Article 294 TEC, in the latest consolidated version of the treaties, TEU and TEC, in OJ 29.12.2006 C 321 E/173. We notice that the Article is located in TEC Part Six ‘General and final provisions’, and the contents are the following:
Article 294 TEC
Member States shall accord nationals of the other Member States the same treatment as their own nationals as regards participation in the capital of companies or firms within the meaning of Article 48, without prejudice to the application of the other provisions of this Treaty.
***
There is no express amendment of the wording and the only horizontal amendment is to replace ‘this Treaty’ by ‘the Treaties’ according to point 2(b)) in the Lisbon Treaty. We check the numbering in the original Lisbon Treaty and the renumbering for the coming consolidated versions of the provision and the referral, and we add the location of the provision within the treaty for ease of reading. The treaty itself is renamed the Treaty on the Functioning of the European Union (TFEU), and here is what the provision should look like:
Part Three ‘Policies and internal actions of the Union’
Title III (renumbered Title IV) ‘Free movement of persons, services and capital’
Chapter 2 ‘Right of establishment’
Article 48a TFEU (ToL), renumbered Article 55 TFEU
Member States shall accord nationals of the other Member States the same treatment as their own nationals as regards participation in the capital of companies or firms within the meaning of Article 48 [ToL, renumbered Article 54 TFEU], without prejudice to the application of the other provisions of the Treaties.
***
The European Convention initiated the tidying up exercise by placing the provision at the end of Subsection 2 ‘Freedom of establishment’, as Article III-28. Naturally, the preceding Article of the draft Treaty establishing a Constitution for Europe referred to was numbered differently and it spoke of the other provisions of the Constitution, but the contents remained the same (OJ 18.7.2003 C 169/33).
***
The IGC 2004 followed the lead of the draft Constitution in every aspect save one. The Treaty establishing a Constitution for Europe limited its referral to the second paragraph of the preceding Article (OJ 16.12.2004 C 310/63):
Article III-143 Constitution
Member States shall accord nationals of the other Member States the same treatment as their own nationals as regards participation in the capital of companies or firms within the meaning of the second paragraph of Article III-142, without prejudice to the application of the other provisions of the Constitution.
***
In other words, the IGC 2007 followed the lead of the European Convention in finding more amenable surroundings for the Article, but by taking over the wording of the present TEC it did not follow the Constitutional Treaty in referring only to the second paragraph of the preceding Article.
***
We can easily agree with the conclusion in the ‘Comparative table of the current EC and EU Treaties as amended by the Treaty of Lisbon (Cm 7311; page 8) about Article 55 TFEU (Article 48a ToL): In substance the same as Article 294 TEC.
But we would like to offer a few hints to the readers who want to know what the present (and future) provision might mean in practice.
Not much, it seems. The principle of equal treatment for capital investors follows from other treaty provisions, so the Article is only declaratory. I quote Rudolf Streinz, EUV/EGV, Vertrag über die Europäische Union und Vertrag zur Gründung der Europäischen Gemeinschaft (Verlag C.H. Beck, München 2003; page 2434):
„Art. 294 EGV hat heute keine praktische Bedeutung mehr. Bestenfalls kann der Vorschrift klarstellende Bedeutung zukommen, dass nicht nur die Gründung und Leitung von Unternehmen (vgl. Art. 43 EGV), sondern auch das Halten einer Beteiligung unter die Freiheitsberechtigungen des Vertrages fallen. In seinem persönlichen und sachlichen Anwendungsbereich ist Art. 294 EGV aber subsidiär gegenüber den Grundfreiheiten. Die dem sachlichen Anwendungsbereich nach relevante Niederlassungsfreiheit und die Kapitalverkehrsfreiheit gehen zudem über den Gewährleistungsinhalt des Art. 294 EGV hinaus, weil sie nicht nur Diskriminierungen nach der Staatsangehörigkeit, sondern jegliche Beschränkung verbieten.“
In other words, other provisions on free movement cater for this and more. In due time, we are going to look at the provisions with relevance.
Ralf Grahn
***
In the Treaty of Lisbon (ToL), point 55, the intergovernmental conference (IGC 2007) decided to shift the location of Article 294 of the Treaty establishing the European Community (TEC). See Official Journal, OJ, 17.12.2007 C 306/55:
55) An Article 48a shall be inserted, with the wording of Article 294.
***
Our first task is to look up Article 294 TEC, in the latest consolidated version of the treaties, TEU and TEC, in OJ 29.12.2006 C 321 E/173. We notice that the Article is located in TEC Part Six ‘General and final provisions’, and the contents are the following:
Article 294 TEC
Member States shall accord nationals of the other Member States the same treatment as their own nationals as regards participation in the capital of companies or firms within the meaning of Article 48, without prejudice to the application of the other provisions of this Treaty.
***
There is no express amendment of the wording and the only horizontal amendment is to replace ‘this Treaty’ by ‘the Treaties’ according to point 2(b)) in the Lisbon Treaty. We check the numbering in the original Lisbon Treaty and the renumbering for the coming consolidated versions of the provision and the referral, and we add the location of the provision within the treaty for ease of reading. The treaty itself is renamed the Treaty on the Functioning of the European Union (TFEU), and here is what the provision should look like:
Part Three ‘Policies and internal actions of the Union’
Title III (renumbered Title IV) ‘Free movement of persons, services and capital’
Chapter 2 ‘Right of establishment’
Article 48a TFEU (ToL), renumbered Article 55 TFEU
Member States shall accord nationals of the other Member States the same treatment as their own nationals as regards participation in the capital of companies or firms within the meaning of Article 48 [ToL, renumbered Article 54 TFEU], without prejudice to the application of the other provisions of the Treaties.
***
The European Convention initiated the tidying up exercise by placing the provision at the end of Subsection 2 ‘Freedom of establishment’, as Article III-28. Naturally, the preceding Article of the draft Treaty establishing a Constitution for Europe referred to was numbered differently and it spoke of the other provisions of the Constitution, but the contents remained the same (OJ 18.7.2003 C 169/33).
***
The IGC 2004 followed the lead of the draft Constitution in every aspect save one. The Treaty establishing a Constitution for Europe limited its referral to the second paragraph of the preceding Article (OJ 16.12.2004 C 310/63):
Article III-143 Constitution
Member States shall accord nationals of the other Member States the same treatment as their own nationals as regards participation in the capital of companies or firms within the meaning of the second paragraph of Article III-142, without prejudice to the application of the other provisions of the Constitution.
***
In other words, the IGC 2007 followed the lead of the European Convention in finding more amenable surroundings for the Article, but by taking over the wording of the present TEC it did not follow the Constitutional Treaty in referring only to the second paragraph of the preceding Article.
***
We can easily agree with the conclusion in the ‘Comparative table of the current EC and EU Treaties as amended by the Treaty of Lisbon (Cm 7311; page 8) about Article 55 TFEU (Article 48a ToL): In substance the same as Article 294 TEC.
But we would like to offer a few hints to the readers who want to know what the present (and future) provision might mean in practice.
Not much, it seems. The principle of equal treatment for capital investors follows from other treaty provisions, so the Article is only declaratory. I quote Rudolf Streinz, EUV/EGV, Vertrag über die Europäische Union und Vertrag zur Gründung der Europäischen Gemeinschaft (Verlag C.H. Beck, München 2003; page 2434):
„Art. 294 EGV hat heute keine praktische Bedeutung mehr. Bestenfalls kann der Vorschrift klarstellende Bedeutung zukommen, dass nicht nur die Gründung und Leitung von Unternehmen (vgl. Art. 43 EGV), sondern auch das Halten einer Beteiligung unter die Freiheitsberechtigungen des Vertrages fallen. In seinem persönlichen und sachlichen Anwendungsbereich ist Art. 294 EGV aber subsidiär gegenüber den Grundfreiheiten. Die dem sachlichen Anwendungsbereich nach relevante Niederlassungsfreiheit und die Kapitalverkehrsfreiheit gehen zudem über den Gewährleistungsinhalt des Art. 294 EGV hinaus, weil sie nicht nur Diskriminierungen nach der Staatsangehörigkeit, sondern jegliche Beschränkung verbieten.“
In other words, other provisions on free movement cater for this and more. In due time, we are going to look at the provisions with relevance.
Ralf Grahn
Wednesday, 9 April 2008
Consolidated EU Lisbon Treaty Update April 2008
In a short while consolidated versions of the EU’s Treaty of Lisbon are going to be published, with web publication 15 April 2008 followed by book versions 9 May 2008 (Europe day), presumably in 23 treaty languages.
The Council has made a wise decision by relinquishing its absurd and counter-productive opposition to readable treaties, but its marketing of this new-found openness could have been more vigorous and transparent.
The Commission quietly updated its Questions and Answers section about the Lisbon Treaty in the following way:
“A consolidated version of the Treaty will be published on 15 April on the web and on 9 May on paper version.”
http://europa.eu/lisbon_treaty/faq/index_en.htm#20
Margot Wallström, at least, highlighted the importance of readable, consolidated versions of the Lisbon Treaty, both the IIEA’s and the coming ‘official’ version, when she spoke to the Irish Institute of European Affairs in Brussels, 7 April 2008:
http://europa.eu/rapid/pressReleasesAction.do?reference=SPEECH/08/180&format=HTML&aged=0&language=EN&guiLanguage=en
One small point where Wallström was a bit too selective, in my opinion, concerned the publication of consolidations:
The latest treaty to have entered into force is the Treaty of Nice, signed in 2001. Outside the Council web communications have advanced considerably since then.
And the draft Constitution and the Constitutional Treaty, which never entered into force, were quickly published (and they were already readable, ‘consolidated’ treaties).
***
The Lisbon Treaty is arguably the most important European Union document since 2004
As a tribute to those individuals and organisations who have served the public by preparing and publishing consolidated versions in a considerable number of EU languages, I want to publish a list of the consolidations of the Lisbon Treaty I am aware of, often thanks to the help of kind readers.
***
The languages are mentioned in alphabetical order in English:
Danish
The EU information of the Danish parliament communicates actively. Some information is available in English, too. The consolidated Lisbon Treaty is an update.
Folketingets EU-Oplysning: Sammenskrevet udgave af udkastet til Lissabon-traktaten og det gaeldande traktatunderlag; Bind 1 Traktater, Bind 2 Protokoller og erklaeringer;
http://www.eu-oplysningen.dk/emner/reformtraktat/reform/sammenskrevet/
***
Dutch
The DJ Nozem blog pointed me towards this new consolidation in Word format, compiled by René Barents and posted on the web site of the daily NRC Handelsblad.
René Barents: Geconsolideerde teksten van het Verdrag betreffende de Europese Unie en het Verdrag betreffende de werking van de Europese Unie zoals gewijzigd door het Verdrag van Lissabon
http://www.nrc.nl/redactie/Europa/verdraglissabon_barents.doc
I want to thank Anonymous who brought to our attention that the government of the Netherlands has published a complete Dutch version of the Treaty of Lisbon on the web pages of the Foreign Ministry,
www.minbuza.nl
The web pages offer us the TEU, TFEU, Euratom Treaty, the Protocols and the Final Act:
1. Verdrag betreffende de Europese Unie
2. Verdrag betreffende de werking van de Europese Unie (voorheen EG-Verdrag)
3. Verdrag tot oprichting van de Europese Gemeenschap voor Atoomenergie (Euratom)
4. Protocollen gehecht aan het Verdrag betreffende de Europese Unie, het Verdrag betreffende de werking van de Europese Unie en/of het Verdrag tot oprichting van de Europese Gemeenschap voor Atoomenergie
5. Slotakte bij het Verdrag van Lissabon, inclusief Verklaringen
***
English
IIEA
Peadar ó Broin at the Institute of International and European Affairs (Dublin, Ireland) has produced a complete updated consolidation of the amended treaties, including the protocols and annexes, in a format easy to read (pdf).
Treaty on European Union
Treaty on the Functioning of the European Union
Annexes to the EU and FEU Treaties
Protocols to the EU and FEU Treaties and, where appropriate, to the EAEC Treaty
Go to http://www.iiea.com
Statewatch
Professor Steve Peers has painstakingly compiled an annotated version consisting of several files for the Statewatch Observatory on the EU Constitution and the Reform Treaty, where similarities and differences between the different reform stages are highlighted. Informative, if you know what you are looking for.
Go to http://www.statewatch.org
FCO
The UK Foreign and Commonwealth Office published a complete consolidated version of the Treaty of Lisbon. The ratification debate in the House of Commons is ongoing.
The FCO web pages on Britain in the EU contain both general information on the Reform Treaty and answers on specific questions in addition to the consolidation I just mentioned. For the consolidated version of the Lisbon Treaty, see Command Paper 7310 ‘Consolidated texts of the EU Treaties as amended by the Treaty of Lisbon’:
http://www.fco.gov.uk/Files/kfile/FCO_PDF_CM7310_ConsolidatedTreaties.pdf
The FCO also published Command Paper 7311 ‘A comparative table of the current EC and EU Treaties as amended by the treaty of Lisbon’, which briefly sets out the similarities and differences between the Lisbon Treaty and the other relevant Treaties article by article. Available through the Official Documents web page (as is Cm 7310 mentioned above):
http://www.official-documents.gov.uk/
Markus Walther
Markus Walther, a German student from Leipzig, who produced and published a German consolidated version of the EU Treaty of Lisbon on his web site, posted an English readable consolidated version as well (a preliminary document without protocols and charter).
Go to http://www.mwalther.net/europa/eulaw-lisbon-mwalther.pdf
Open Europe
Open Europe produced a consolidated version with the Treaty of Lisbon and the Treaty establishing a Constitution for Europe presented side by side for convenient comparison.
Open Europe: The Lisbon Treaty and the European Constitution: A side-by-side comparison; January 2008;
http://www.openeurope.org.uk/research/comparative.pdf
Constitreaty.com
The web site and accompanying blog at Constitreaty.com is an ongoing work to present the Constitutional Treaty and the Lisbon Treaty side by side for easy comparison, with highlighting and tracked changes facilitating the task.
When I checked a few moments ago, Parts I to III of the Constitution were available (with Part IV and the Final Act under construction). Try it out at:
http://www.constitreaty.com/
***
Finnish
The government and Europe Information, of the Ministry for Foreign Affairs, has promised a consolidated version of the Lisbon Reform Treaty, in Finnish and Swedish by mid April, which coincides with the publishing of all web versions by the Council.
I have not noticed if the Finnish government intends to do anything beyond the general Council plans.
***
French
Europa-EU-Audience
The bilingual web site en.europa-eu-audience found two unofficial parallel versions, leaked from the European Parliament, of the amending treaties in French, side by side with the current ones:
http://europa-eu-audience.typepad.com/fr/files/EP_TCE_versus_TFU_Final.doc
http://europa-eu-audience.typepad.com/fr/files/EP_TUE_versus_TUE_final.doc
By the way, the site is worth following because of its keen interest on availability of EU sources and the evolution of web informatics.
Assemblée nationale
Assemblée nationale : Rapport d’information sur les modifications apportées par le traité de Lisbonne au traité sur l’Union européenne et au traité instituant la Communauté européenne, par M. Axel Poniatowski ; No 439, 28 novembre 2007 ;
http://www.assemblee-nationale.fr/13/pdf/rap-info/i0439.pdf
Later, the French National Assembly has presented a consolidated version of the Treaty of Lisbon side by side with the current treaties. Look for Assemblée Nationale: Rapport d’information déposé par la Délégation de l’Assemblée Nationale pour l’Union Européenne, sur le traité de Lisbonne ; No 562, Tome 2, 8 janvier 2008 :
http://www.assemblee-nationale.fr/13/dossiers/traite_lisbonne_due_information.asp
Jean-Luc Sauron
Jean-Luc Sauron: Comprendre le Traité de Lisbonne – Texte consolidé intégral des traités – Explications et commentaires ; Gualino éditeur, Paris 2008 ; 351 p. (Prix 20 €)
The book (pages 141 – 351) contains, in a handy format, consolidated versions of the amended Treaty on European Union, the Treaty on the Functioning of the European Union, the Charter of Fundamental Rights and the Explanations relating to it as well as a modest Index.
In principle, the Treaty texts are based on a version from 30 October 2007, but footnotes take later modifications into account.
Christine Kaddous and Fabrice Picod
Traité sur l’Union européenne / Traité sur le fonctionnement de l’Union européenneecueil de textes (Published 18 February 2008) Staempfli SA (Berne), Bruylant (Bruxelles), L.G.D.J. (Paris) 342 pages, CHF 59.-, 43 euros, ISBN 978-3-7272-9144-9
A complete consolidation in French.
***
German
Markus Walther
Markus Walther: Das Primärrecht der Europäischen Union; Endfassung, Stand 18. Dezember 2007; (updated after signing)
http://www.mwalther.net/union.html
Klemens H. Fischer
The book “Der Vertrag von Lissabon – Text und Kommentar zum Europäischen Reformvertrag”, by Klemens H. Fischer (Nomos, Stämpfli Verlag and Verlag Österreich) describes the EU reform process and especially the IGC 2007 before it presents consolidated and annotated versions of the TEU and TFEU including protocols and declarations. The accompanying CD-Rom contains background material and three different consolidations of each treaty: with amendments highlighted and footnotes, with amendments highlighted and a neutral consolidated version.
Zukunft Europa
Just a short while ago Tünde commented on an old post that there is another German consolidated version of the Treaties on:
http://www.zukunfteuropa.at/site/5895/default.aspx
As far as I understand, Klemens H. Fischer has allowed Zukunft Europa to make his consolidation available to the public on the web.
***
Hungarian
Two sources reported that the Hungarian government has published a consolidation of the Lisbon Treaty, although was not able to verify it. But I encourage anyone with the linguistic and technical skills to search (and to report back).
***
Irish Gaelic
A consolidation in Irish Gaelic has been announced by the Institute of International and European Affairs, Dublin (but I have not been able to locate it).
Go to http://www.iiea.com
***
Portuguese
Peadar ó Broin reported on a version in Portuguese also, prepared by the Portuguese Ministry of Foreign Affairs:
http://www.eu2007.pt/NR/rdonlyres/1D96311C-F90D-4E97-B355-DFEA0DD1ABEA/0/TLconsolidado.pdf
Alternatively, you can link to the text via the website for the Ministry of Foreign Affairs:
http://www.mne.gov.pt/
Or you can link via the website for the Portuguese Presidency of 2007:
http://www.eu2007.pt/UE/vPT/Presidencia_Conselho/TratadoLisboa.htm
***
Spanish
Real Instituto Elcano offers a complete updated consolidation, with protocols and declarations, in Spanish, compiled by José Martín y Pérez de Nanclares and Mariola Urrea Corres. The former has written an introductory study worth reading.
http://www.realinstitutoelcano.org
***
Swedish
Sieps – Svenska institutet för europapolitiska studier, the Swedish Institute for European Policy Studies, has published a complete consolidated Swedish language version of the Lisbon Treaty.
http://www.sieps.se
Go to the new Sieps web pages dedicated to the Lisbon Treaty:
http://www.lissabonfordraget.se/
Ladda ned Lissabonfördraget - Konsoliderad version av EU:s fördrag (pdf)
Ladda ned Lissabonfördraget – Protokoll mm (pdf)
The publisher SNS Förlag has published a handy pocket version of the Treaty of Lisbon in Swedish. Having received my own copy, I am happy to announce that it contains the Charter of Fundamental Rights, Protocols, a Table of equivalences and a five page Register in addition to the consolidated treaty texts.
http://www.sns.se
***
I am most grateful, if you want to share your knowledge about the Treaty of Lisbon as well as EU law and politics generally with me and other EU citizens: books and resources, such as official documents from the member states’ governments and parliaments, scholarly assessments and popular literature, plus information on the ratification processes.
Ralf Grahn
The Council has made a wise decision by relinquishing its absurd and counter-productive opposition to readable treaties, but its marketing of this new-found openness could have been more vigorous and transparent.
The Commission quietly updated its Questions and Answers section about the Lisbon Treaty in the following way:
“A consolidated version of the Treaty will be published on 15 April on the web and on 9 May on paper version.”
http://europa.eu/lisbon_treaty/faq/index_en.htm#20
Margot Wallström, at least, highlighted the importance of readable, consolidated versions of the Lisbon Treaty, both the IIEA’s and the coming ‘official’ version, when she spoke to the Irish Institute of European Affairs in Brussels, 7 April 2008:
http://europa.eu/rapid/pressReleasesAction.do?reference=SPEECH/08/180&format=HTML&aged=0&language=EN&guiLanguage=en
One small point where Wallström was a bit too selective, in my opinion, concerned the publication of consolidations:
The latest treaty to have entered into force is the Treaty of Nice, signed in 2001. Outside the Council web communications have advanced considerably since then.
And the draft Constitution and the Constitutional Treaty, which never entered into force, were quickly published (and they were already readable, ‘consolidated’ treaties).
***
The Lisbon Treaty is arguably the most important European Union document since 2004
As a tribute to those individuals and organisations who have served the public by preparing and publishing consolidated versions in a considerable number of EU languages, I want to publish a list of the consolidations of the Lisbon Treaty I am aware of, often thanks to the help of kind readers.
***
The languages are mentioned in alphabetical order in English:
Danish
The EU information of the Danish parliament communicates actively. Some information is available in English, too. The consolidated Lisbon Treaty is an update.
Folketingets EU-Oplysning: Sammenskrevet udgave af udkastet til Lissabon-traktaten og det gaeldande traktatunderlag; Bind 1 Traktater, Bind 2 Protokoller og erklaeringer;
http://www.eu-oplysningen.dk/emner/reformtraktat/reform/sammenskrevet/
***
Dutch
The DJ Nozem blog pointed me towards this new consolidation in Word format, compiled by René Barents and posted on the web site of the daily NRC Handelsblad.
René Barents: Geconsolideerde teksten van het Verdrag betreffende de Europese Unie en het Verdrag betreffende de werking van de Europese Unie zoals gewijzigd door het Verdrag van Lissabon
http://www.nrc.nl/redactie/Europa/verdraglissabon_barents.doc
I want to thank Anonymous who brought to our attention that the government of the Netherlands has published a complete Dutch version of the Treaty of Lisbon on the web pages of the Foreign Ministry,
www.minbuza.nl
The web pages offer us the TEU, TFEU, Euratom Treaty, the Protocols and the Final Act:
1. Verdrag betreffende de Europese Unie
2. Verdrag betreffende de werking van de Europese Unie (voorheen EG-Verdrag)
3. Verdrag tot oprichting van de Europese Gemeenschap voor Atoomenergie (Euratom)
4. Protocollen gehecht aan het Verdrag betreffende de Europese Unie, het Verdrag betreffende de werking van de Europese Unie en/of het Verdrag tot oprichting van de Europese Gemeenschap voor Atoomenergie
5. Slotakte bij het Verdrag van Lissabon, inclusief Verklaringen
***
English
IIEA
Peadar ó Broin at the Institute of International and European Affairs (Dublin, Ireland) has produced a complete updated consolidation of the amended treaties, including the protocols and annexes, in a format easy to read (pdf).
Treaty on European Union
Treaty on the Functioning of the European Union
Annexes to the EU and FEU Treaties
Protocols to the EU and FEU Treaties and, where appropriate, to the EAEC Treaty
Go to http://www.iiea.com
Statewatch
Professor Steve Peers has painstakingly compiled an annotated version consisting of several files for the Statewatch Observatory on the EU Constitution and the Reform Treaty, where similarities and differences between the different reform stages are highlighted. Informative, if you know what you are looking for.
Go to http://www.statewatch.org
FCO
The UK Foreign and Commonwealth Office published a complete consolidated version of the Treaty of Lisbon. The ratification debate in the House of Commons is ongoing.
The FCO web pages on Britain in the EU contain both general information on the Reform Treaty and answers on specific questions in addition to the consolidation I just mentioned. For the consolidated version of the Lisbon Treaty, see Command Paper 7310 ‘Consolidated texts of the EU Treaties as amended by the Treaty of Lisbon’:
http://www.fco.gov.uk/Files/kfile/FCO_PDF_CM7310_ConsolidatedTreaties.pdf
The FCO also published Command Paper 7311 ‘A comparative table of the current EC and EU Treaties as amended by the treaty of Lisbon’, which briefly sets out the similarities and differences between the Lisbon Treaty and the other relevant Treaties article by article. Available through the Official Documents web page (as is Cm 7310 mentioned above):
http://www.official-documents.gov.uk/
Markus Walther
Markus Walther, a German student from Leipzig, who produced and published a German consolidated version of the EU Treaty of Lisbon on his web site, posted an English readable consolidated version as well (a preliminary document without protocols and charter).
Go to http://www.mwalther.net/europa/eulaw-lisbon-mwalther.pdf
Open Europe
Open Europe produced a consolidated version with the Treaty of Lisbon and the Treaty establishing a Constitution for Europe presented side by side for convenient comparison.
Open Europe: The Lisbon Treaty and the European Constitution: A side-by-side comparison; January 2008;
http://www.openeurope.org.uk/research/comparative.pdf
Constitreaty.com
The web site and accompanying blog at Constitreaty.com is an ongoing work to present the Constitutional Treaty and the Lisbon Treaty side by side for easy comparison, with highlighting and tracked changes facilitating the task.
When I checked a few moments ago, Parts I to III of the Constitution were available (with Part IV and the Final Act under construction). Try it out at:
http://www.constitreaty.com/
***
Finnish
The government and Europe Information, of the Ministry for Foreign Affairs, has promised a consolidated version of the Lisbon Reform Treaty, in Finnish and Swedish by mid April, which coincides with the publishing of all web versions by the Council.
I have not noticed if the Finnish government intends to do anything beyond the general Council plans.
***
French
Europa-EU-Audience
The bilingual web site en.europa-eu-audience found two unofficial parallel versions, leaked from the European Parliament, of the amending treaties in French, side by side with the current ones:
http://europa-eu-audience.typepad.com/fr/files/EP_TCE_versus_TFU_Final.doc
http://europa-eu-audience.typepad.com/fr/files/EP_TUE_versus_TUE_final.doc
By the way, the site is worth following because of its keen interest on availability of EU sources and the evolution of web informatics.
Assemblée nationale
Assemblée nationale : Rapport d’information sur les modifications apportées par le traité de Lisbonne au traité sur l’Union européenne et au traité instituant la Communauté européenne, par M. Axel Poniatowski ; No 439, 28 novembre 2007 ;
http://www.assemblee-nationale.fr/13/pdf/rap-info/i0439.pdf
Later, the French National Assembly has presented a consolidated version of the Treaty of Lisbon side by side with the current treaties. Look for Assemblée Nationale: Rapport d’information déposé par la Délégation de l’Assemblée Nationale pour l’Union Européenne, sur le traité de Lisbonne ; No 562, Tome 2, 8 janvier 2008 :
http://www.assemblee-nationale.fr/13/dossiers/traite_lisbonne_due_information.asp
Jean-Luc Sauron
Jean-Luc Sauron: Comprendre le Traité de Lisbonne – Texte consolidé intégral des traités – Explications et commentaires ; Gualino éditeur, Paris 2008 ; 351 p. (Prix 20 €)
The book (pages 141 – 351) contains, in a handy format, consolidated versions of the amended Treaty on European Union, the Treaty on the Functioning of the European Union, the Charter of Fundamental Rights and the Explanations relating to it as well as a modest Index.
In principle, the Treaty texts are based on a version from 30 October 2007, but footnotes take later modifications into account.
Christine Kaddous and Fabrice Picod
Traité sur l’Union européenne / Traité sur le fonctionnement de l’Union européenneecueil de textes (Published 18 February 2008) Staempfli SA (Berne), Bruylant (Bruxelles), L.G.D.J. (Paris) 342 pages, CHF 59.-, 43 euros, ISBN 978-3-7272-9144-9
A complete consolidation in French.
***
German
Markus Walther
Markus Walther: Das Primärrecht der Europäischen Union; Endfassung, Stand 18. Dezember 2007; (updated after signing)
http://www.mwalther.net/union.html
Klemens H. Fischer
The book “Der Vertrag von Lissabon – Text und Kommentar zum Europäischen Reformvertrag”, by Klemens H. Fischer (Nomos, Stämpfli Verlag and Verlag Österreich) describes the EU reform process and especially the IGC 2007 before it presents consolidated and annotated versions of the TEU and TFEU including protocols and declarations. The accompanying CD-Rom contains background material and three different consolidations of each treaty: with amendments highlighted and footnotes, with amendments highlighted and a neutral consolidated version.
Zukunft Europa
Just a short while ago Tünde commented on an old post that there is another German consolidated version of the Treaties on:
http://www.zukunfteuropa.at/site/5895/default.aspx
As far as I understand, Klemens H. Fischer has allowed Zukunft Europa to make his consolidation available to the public on the web.
***
Hungarian
Two sources reported that the Hungarian government has published a consolidation of the Lisbon Treaty, although was not able to verify it. But I encourage anyone with the linguistic and technical skills to search (and to report back).
***
Irish Gaelic
A consolidation in Irish Gaelic has been announced by the Institute of International and European Affairs, Dublin (but I have not been able to locate it).
Go to http://www.iiea.com
***
Portuguese
Peadar ó Broin reported on a version in Portuguese also, prepared by the Portuguese Ministry of Foreign Affairs:
http://www.eu2007.pt/NR/rdonlyres/1D96311C-F90D-4E97-B355-DFEA0DD1ABEA/0/TLconsolidado.pdf
Alternatively, you can link to the text via the website for the Ministry of Foreign Affairs:
http://www.mne.gov.pt/
Or you can link via the website for the Portuguese Presidency of 2007:
http://www.eu2007.pt/UE/vPT/Presidencia_Conselho/TratadoLisboa.htm
***
Spanish
Real Instituto Elcano offers a complete updated consolidation, with protocols and declarations, in Spanish, compiled by José Martín y Pérez de Nanclares and Mariola Urrea Corres. The former has written an introductory study worth reading.
http://www.realinstitutoelcano.org
***
Swedish
Sieps – Svenska institutet för europapolitiska studier, the Swedish Institute for European Policy Studies, has published a complete consolidated Swedish language version of the Lisbon Treaty.
http://www.sieps.se
Go to the new Sieps web pages dedicated to the Lisbon Treaty:
http://www.lissabonfordraget.se/
Ladda ned Lissabonfördraget - Konsoliderad version av EU:s fördrag (pdf)
Ladda ned Lissabonfördraget – Protokoll mm (pdf)
The publisher SNS Förlag has published a handy pocket version of the Treaty of Lisbon in Swedish. Having received my own copy, I am happy to announce that it contains the Charter of Fundamental Rights, Protocols, a Table of equivalences and a five page Register in addition to the consolidated treaty texts.
http://www.sns.se
***
I am most grateful, if you want to share your knowledge about the Treaty of Lisbon as well as EU law and politics generally with me and other EU citizens: books and resources, such as official documents from the member states’ governments and parliaments, scholarly assessments and popular literature, plus information on the ratification processes.
Ralf Grahn
EU TFEU: Right of establishment for companies and firms
It looks quite harmless: Companies and firms are offered the same freedom of establishment as natural persons within the European Community (European Union).
News and debate tend to focus on (unexpected) change, but the EU’s Treaty of Lisbon is as important for what it preserves, like the equal treatment of commercial companies.
First, we look at the treaty reform cycle from the current Treaty establishing the European Community, via the draft Constitution and the Constitutional Treaty to the Lisbon Treaty. Then, we give a few hints on further reading, which show that seemingly boring and inoffensive provisions are anything but that from the viewpoint of enterprises and tax authorities.
***
When we reach Article 48 of the Treaty establishing the European Community (TEC), we see that the intergovernmental conference (IGC 2007) makes no express amendment in the Treaty of Lisbon (ToL) to what is to become the Treaty on the Functioning of the European Union (TFEU). Cf. Official Journal, OJ 17.12.2007 C 306/55.
***
We find Article 48 TEC in force in the latest consolidated version of the treaties, TEU and TEC, OJ 29.12.2006 C 321 E/61:
Article 48 TEC
Companies or firms formed in accordance with the law of a Member State and having their registered office, central administration or principal place of business within the Community shall, for the purposes of this Chapter, be treated in the same way as natural persons who are nationals of Member States.
‘Companies or firms’ means companies or firms constituted under civil or commercial law, including cooperative societies, and other legal persons governed by public or private law, save for those which are non-profit-making.
***
There is no express amendment and only one horizontal one (‘Community’ replaced by ‘Union’ according to point 2(a)) in the Lisbon Treaty. We check the numbering in the original Lisbon Treaty and the renumbering for the coming consolidated versions, and we add the location of the provision within the treaty for ease of reading. Here is the ‘new’ Article:
Part Three ‘Policies and internal actions of the Union’
Title III (renumbered Title IV) ‘Free movement of persons, services and capital’
Chapter 2 ‘Right of establishment’
Article 48 TFEU (ToL), renumbered Article 54 TFEU
Companies or firms formed in accordance with the law of a Member State and having their registered office, central administration or principal place of business within the Union shall, for the purposes of this Chapter, be treated in the same way as natural persons who are nationals of Member States.
‘Companies or firms’ means companies or firms constituted under civil or commercial law, including cooperative societies, and other legal persons governed by public or private law, save for those which are non-profit-making.
***
The European Convention inserted the word ‘Union’ instead of ‘Community’, and ‘Chapter’ was called ‘Subsection’, but there was no material difference between Article III-27 of the draft Treaty establishing a Constitution for Europe and the current TEC provision, and even one formal difference less as regards the ToL TFEU (OJ 18.7.2003 C 169/32-33).
***
Article III-142 of the Treaty establishing a Constitution for Europe took over the draft text word for word (OJ 16.12.2004 C 310/62).
***
After the anodyne statements above, one could easily believe that freedom of establishment for companies is an inoffensive continuation of the principles concerning humans (natural persons), so a few references to actual tensions may be in order.
For further reading available on the web concerning the freedom of establishment as regards companies and firms, you could turn to Nicole Rothe: Freedom of establishment of legal persons within the European Union: An analysis of the European Court of Justice decision in the Überseering case; Case C-208/00:
https://www.wcl.american.edu/journal/lawrev/53/rothe.pdf?rd=1
KPMG’s Euro Tax Flash Issuue 37, 12 September 2006, comments on ‘ECJ decision in Cadbury Schweppes Case (C-196/04):
http://kpmgbe.lcc.ch/dbfetch/52616e646f6d49561b7f558b02435e7dd48a4524c074812ef9097bad01a90f9f/euro_tax_flash_2006_09_12_2.pdf
Frank Muntendam, of Ernst & Young, commented on the Cadbury Schweppes case ‘The end of CFC legislation in Europe?’:
http://www.ey.com/global/content.nsf/Luxembourg_E/Question:_The_end_of_CFC_legislation_in_Europe
A fresh overview is offered by Federico M. Mucciarelli in ‘Companies’ Emigration and EC Freedom of Establishment (15 October 2007):
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1078407#PaperDownload
Ralf Grahn
News and debate tend to focus on (unexpected) change, but the EU’s Treaty of Lisbon is as important for what it preserves, like the equal treatment of commercial companies.
First, we look at the treaty reform cycle from the current Treaty establishing the European Community, via the draft Constitution and the Constitutional Treaty to the Lisbon Treaty. Then, we give a few hints on further reading, which show that seemingly boring and inoffensive provisions are anything but that from the viewpoint of enterprises and tax authorities.
***
When we reach Article 48 of the Treaty establishing the European Community (TEC), we see that the intergovernmental conference (IGC 2007) makes no express amendment in the Treaty of Lisbon (ToL) to what is to become the Treaty on the Functioning of the European Union (TFEU). Cf. Official Journal, OJ 17.12.2007 C 306/55.
***
We find Article 48 TEC in force in the latest consolidated version of the treaties, TEU and TEC, OJ 29.12.2006 C 321 E/61:
Article 48 TEC
Companies or firms formed in accordance with the law of a Member State and having their registered office, central administration or principal place of business within the Community shall, for the purposes of this Chapter, be treated in the same way as natural persons who are nationals of Member States.
‘Companies or firms’ means companies or firms constituted under civil or commercial law, including cooperative societies, and other legal persons governed by public or private law, save for those which are non-profit-making.
***
There is no express amendment and only one horizontal one (‘Community’ replaced by ‘Union’ according to point 2(a)) in the Lisbon Treaty. We check the numbering in the original Lisbon Treaty and the renumbering for the coming consolidated versions, and we add the location of the provision within the treaty for ease of reading. Here is the ‘new’ Article:
Part Three ‘Policies and internal actions of the Union’
Title III (renumbered Title IV) ‘Free movement of persons, services and capital’
Chapter 2 ‘Right of establishment’
Article 48 TFEU (ToL), renumbered Article 54 TFEU
Companies or firms formed in accordance with the law of a Member State and having their registered office, central administration or principal place of business within the Union shall, for the purposes of this Chapter, be treated in the same way as natural persons who are nationals of Member States.
‘Companies or firms’ means companies or firms constituted under civil or commercial law, including cooperative societies, and other legal persons governed by public or private law, save for those which are non-profit-making.
***
The European Convention inserted the word ‘Union’ instead of ‘Community’, and ‘Chapter’ was called ‘Subsection’, but there was no material difference between Article III-27 of the draft Treaty establishing a Constitution for Europe and the current TEC provision, and even one formal difference less as regards the ToL TFEU (OJ 18.7.2003 C 169/32-33).
***
Article III-142 of the Treaty establishing a Constitution for Europe took over the draft text word for word (OJ 16.12.2004 C 310/62).
***
After the anodyne statements above, one could easily believe that freedom of establishment for companies is an inoffensive continuation of the principles concerning humans (natural persons), so a few references to actual tensions may be in order.
For further reading available on the web concerning the freedom of establishment as regards companies and firms, you could turn to Nicole Rothe: Freedom of establishment of legal persons within the European Union: An analysis of the European Court of Justice decision in the Überseering case; Case C-208/00:
https://www.wcl.american.edu/journal/lawrev/53/rothe.pdf?rd=1
KPMG’s Euro Tax Flash Issuue 37, 12 September 2006, comments on ‘ECJ decision in Cadbury Schweppes Case (C-196/04):
http://kpmgbe.lcc.ch/dbfetch/52616e646f6d49561b7f558b02435e7dd48a4524c074812ef9097bad01a90f9f/euro_tax_flash_2006_09_12_2.pdf
Frank Muntendam, of Ernst & Young, commented on the Cadbury Schweppes case ‘The end of CFC legislation in Europe?’:
http://www.ey.com/global/content.nsf/Luxembourg_E/Question:_The_end_of_CFC_legislation_in_Europe
A fresh overview is offered by Federico M. Mucciarelli in ‘Companies’ Emigration and EC Freedom of Establishment (15 October 2007):
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1078407#PaperDownload
Ralf Grahn
Tuesday, 8 April 2008
Stubb continues blogging
Why abolish a winning formula? This seems to be the sentiment of blogger Alexander Stubb, Foreign Minister of Finland since Friday.
In his Finnish blog Stubb has an entry, dated 7 April 2008 to prove it. In addition he declares that he will continue blogging, “self-evidently”:
http://www.alexstubb.com/fi/index.php?trg=diary
Perhaps Jon Worth can take heart, and his potential clients take the plunge, as discussed in the post:
http://www.jonworth.eu/political-pr-and-the-age-of-the-web/
Ralf Grahn
In his Finnish blog Stubb has an entry, dated 7 April 2008 to prove it. In addition he declares that he will continue blogging, “self-evidently”:
http://www.alexstubb.com/fi/index.php?trg=diary
Perhaps Jon Worth can take heart, and his potential clients take the plunge, as discussed in the post:
http://www.jonworth.eu/political-pr-and-the-age-of-the-web/
Ralf Grahn
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