The preceding Article 56 of the Treaty establishing the European Community (TEC) and Article 63 of the Treaty on the Functioning of the European Union (TFEU) prohibited all restrictions on the movement of capital and on payments between member states and between member states and third countries.
But the primary goal has been to guarantee the free flow of capital within the European Community (European Union), with third countries subject to exceptions detailed in Article 57 TEC and 64 TFEU.
As regards third countries liberalisation is till professed, but derogations confessed.
***
Article 64 of the Treaty on the Functioning of the European Union (TFEU) is presented as it stands after the intergovernmental conference (IGC 2007) in the Treaty of Lisbon (ToL) and provisionally consolidated by the Council of the European Union (document 6655/08; page 93-94), with the location of the provision added from the table of equivalences (page 460 to 462):
Part Three ‘Policies and internal actions of the Union’
Title IV TFEU (ex Title III) ‘Free movement of persons, services and capital’
Chapter 4 ‘Capital and payments’
Article 64 TFEU
(ex Article 57 TEC)
1. The provisions of Article 63 shall be without prejudice to the application to third countries of any restrictions which exist on 31 December 1993 under national or Union law adopted in respect of the movement of capital to or from third countries involving direct investment – including in real estate – establishment, the provision of financial services or the admission of securities to capital markets. In respect of restrictions existing under national law in Bulgaria, Estonia and Hungary, the relevant date shall be 31 December 1999.
2. Whilst endeavouring to achieve the objective of free movement of capital between Member States and third countries to the greatest extent possible and without prejudice to the other Chapters of the Treaties, the European Parliament and the Council, acting in accordance with the ordinary legislative procedure, shall adopt the measures on the movement of capital to or from third countries involving direct investment – including investment in real estate – establishment, the provision of financial services or the admission of securities to capital markets.
3. Notwithstanding paragraph 2, only the Council, acting in accordance with a special legislative procedure, may unanimously, and after consulting the European Parliament, adopt measures which constitute a step backwards in Union law as regards the liberalisation of the movement of capital to or from third countries.
***
The specific Lisbon Treaty amendments to Article 57 of the Treaty establishing the European Community (TEC) are mentioned in point 60 (OJ 17.12.2007 C 306/55):
CAPITAL
60) In Article 57(2), the words ‘the Council may, acting by a qualified majority on a proposal from the Commission, adopt measures’ shall be replaced by ‘the European Parliament and the Council, acting in accordance with the ordinary legislative procedure, shall adopt the measures’ and the last sentence of paragraph 2 shall become paragraph 3, reading as follows:
‘3. Notwithstanding paragraph 2, only the Council, acting in accordance with a special legislative procedure, may unanimously, and after consulting the European Parliament, adopt measures which constitute a step backwards in Union law as regards the liberalisation of the movement of capital to or from third countries.’
***
For comparison, the current Article 57 TEC looks like this (in the latest consolidated version of the treaties in force, OJ 29.12.2006 C 321 E/64):
Article 57 TEC
1. The provisions of Article 56 shall be without prejudice to the application to third countries of any restrictions which exist on 31 December 1993 under national or Community law adopted in respect of the movement of capital to or from third countries involving direct investment – including in real estate – establishment, the provision of financial services or the admission of securities to capital markets. In respect of restrictions existing under national law in Estonia and Hungary, the relevant date shall be 31 December 1999.
2. Whilst endeavouring to achieve the objective of free movement of capital between Member States and third countries to the greatest extent possible and without prejudice to the other Chapters of this Treaty, the Council may, acting by a qualified majority on a proposal from the Commission, adopt measures on the movement of capital to or from third countries involving direct investment – including investment in real estate – establishment, the provision of financial services or the admission of securities to capital markets. Unanimity shall be required for measures under this paragraph which constitute a step back in Community law as regards the liberalisation of the movement of capital to or from third countries.
____________________________________________________________________
A footnote to Article 57 TEC adds the following information: Article amended by the 2003 Act of Accession. See Appendix at the end of this publication.
***
The European Convention proposed the following Article III-46 of the draft Treaty establishing a Constitution for Europe (18.7.2003 C 169/34-35):
Article III-46 Draft Constitution
1. Article III-45 shall be without prejudice to the application to third countries of any restrictions which existed on 31 December 1993 under national or Union law adopted in respect of the movement of capital to or from third countries involving direct investment — including in real estate —, establishment, the provision of financial services or the admission of securities to capital markets.
2. European laws or framework laws shall enact measures on the movement of capital to or from third countries involving direct investment — including investment in real estate —, establishment, the provision of financial services or the admission of securities to capital markets.
The European Parliament and the Council of Ministers shall endeavour to achieve the objective of free movement of capital between Member States and third countries to the greatest extent possible and without prejudice to other provisions of the Constitution.
3. Notwithstanding paragraph 2, only a European law or framework law of the Council of Ministers may enact measures which constitute a step back in Union law as regards the liberalisation of the movement of capital to or from third countries. The Council of Ministers shall act unanimously after consulting the European Parliament.
***
Article III-157 of the Treaty establishing a Constitution for Europe added the effects of the 2003 Accession Treaty (OJ 16.12.2004 C 310/66-67):
Article III-157 Constitution
1. Article III-156 shall be without prejudice to the application to third countries of any restrictions which existed on 31 December 1993 under national or Union law adopted in respect of the movement of capital to or from third countries involving direct investment — including investment in real estate, establishment, the provision of financial services or the admission of securities to capital markets. With regard to restrictions which exist under national law in Estonia and Hungary, the date in question shall be 31 December 1999.
2. European laws or framework laws shall enact measures on the movement of capital to or from third countries involving direct investment — including investment in real estate, establishment, the provision of financial services or the admission of securities to capital markets.
The European Parliament and the Council shall endeavour to achieve the objective of free movement of capital between Member States and third countries to the greatest extent possible and without prejudice to other provisions of the Constitution.
3. Notwithstanding paragraph 2, only a European law or framework law of the Council may enact measures which constitute a step backwards in Union law as regards the liberalisation of the movement of capital to or from third countries. The Council shall act unanimously after consulting the European Parliament.
***
What, if anything, happened to Article 57 TEC during the post-Nice treaty reform cycle?
Article III-46(1) of the draft Constitution was essentially the same as Article 57(1) TEC, but the Accession Act 2003 added the last sentence on national law in Estonia and Hungary and the stand-still date of 31 December 1999 to the latest consolidated TEC version.
Article III-46(2) of the draft Constitution was arguably easier to read than Article 57(2) TEC. The European Convention proposed its general terminology concerning legislative acts – European laws or framework laws – and substantially the extension of the ordinary legislative procedure (co-decision) to the movement of capital to or from third countries.
Backsliding on achieved liberalisation regarding third countries became Article III-46(3) in the draft Constitution instead of the last sentence of Article 57(2) TEC. Unanimity in the Council was retained, but the European Parliament was to be consulted.
Compared to the draft Constitution the Constitutional Treaty inserted the last sentence on the new member states Estonia and Hungary into the first paragraph of Article III-157.
In Article III-157 Constitution ‘a step back’ became ‘a step backwards’, but otherwise the draft and the Constitution have the same wording.
The Treaty of Lisbon, Article 64 TFEU, takes over as horizontal amendments ‘Union law’ instead of ‘Community law’ and ‘the Treaties’ instead of ‘this Treaty’ from the draft Constitution and the Constitutional Treaty.
The new entrant Bulgaria is added to Estonia and Hungary at the end of paragraph 1. The dash between ‘real estate’ and ‘establishment’, mislaid by the Constitution Article II-157(1) and (2), was retained in Article 64(1) and (2) TFEU as part of the Article 57(1) and (2) TEC text.
The ordinary legislative procedure is adopted in Article 64(2) TFEU, substantially in line with the European Convention’s proposal and the agreement by the IGC 2004.
When the last sentence of Article 57(2) TEC is deleted and replaced by the third paragraph the Lisbon Treaty Article 64 TFEU adopts, the wording resembles a hybrid between all the reform stages.
***
Article 64(1) is a stand-still clause as regards capital movements to and from third countries. Its subject matter covers direct investment – including in real estate – establishment, the provision of financial services or the admission of securities to capital markets.
The stand-still date is 31 December 1993 for Union law and national law in general, except for Bulgaria, Estonia and Hungary where the date is 31 December 1999.
The Appendix to the latest consolidated version of the current treaties ‘Amendments fo primary legislation further to the accession of the Republic of Bulgaria and Romania to the European Union’ contains the following text concerning the Treaty establishing the European Community (OJ 29.12.2006 C 321 E/327):
1. The last sentence of Article 57(1) shall be replaced by the following:
‘In respect of restrictions existing under national law in Bulgaria, Estonia and Hungary, the relevant date shall be 31 December 1999.’
This has now been inserted into the Treaty of Lisbon (TFEU).
New restrictions can be introduced only according to the special legislative procedure requiring unanimity in the Council (paragraph 3).
***
As regards further reading, I refer the interested reader to yesterday’s post ‘EU TFEU: Free movement of capital’.
Ralf Grahn
Saturday, 19 April 2008
Friday, 18 April 2008
EU TFEU: Free movement of capital
The current Treaty establishing the European Community as well as the Treaty on the Functioning of the European Union (following from the Treaty of Lisbon) prohibit restrictions on the movement of capital and on payments between member states as well as between member states and third countries.
***
We move to a Chapter 4 ‘Capital and payments’. Article 63 of the Treaty on the Functioning of the European Union (TFEU), is presented as amended by the intergovernmental conference (IGC 2007) in the Treaty of Lisbon (ToL) and provisionally consolidated by the Council of the European Union (document 6655/08; page 93), with the location of the provision added from the table of equivalences (page 460 to 462):
Part Three ‘Policies and internal actions of the Union’
Title IV TFEU ‘Free movement of persons, services and capital’
Chapter 4 ‘Capital and payments’
Article 63 TFEU
(ex Article 56 TEC)
1. Within the framework of the provisions set out in this Chapter, all restrictions on the movement of capital between Member States and between Member States and third countries shall be prohibited.
2. Within the framework of the provisions set out in this Chapter, all restrictions on payments between Member States and between Member States and third countries shall be prohibited.
***
The IGC 2007 made no specific amendment to Article 56 TEC. Cf. OJ 17.12.2007 C 306/55. The provision is only renumbered.
***
The current key provision on capital and payments, Article 56 TEC, is found in the latest consolidated version of the treaties, OJ 29.12.2006 C 321 E/63.
***
The European Convention preferred a shorter version of the opening provision of Section 4 ‘Capital and payments’ in the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/34):
SECTION 4
Capital and payments
Article III-45 Draft Constitution
Within the framework of this Section, restrictions both on the movement of capital and on payments between Member States and between Member States and third countries shall be prohibited.
***
The IGC 2004 adopted the wording of the draft in Article III-156 of the Treaty establishing a Constitution for Europe (OJ 16.12.2004 C 310/66).
***
We see that no substantial change has been adopted during the various stages of the treaty reform process after the Treaty of Nice, but the wording proposed by the European Convention and agreed by the IGC 2004 would arguably have been more elegant.
In this, as in many other cases, the IGC 2007 decided to save ink by preserving the current wording when the reasons for change would have been purely aesthetic.
***
Some suggestions for further reading, first two standard books:
Josephine Steiner, Lorna Woods and Christian Twigg-Flesner: EU Law (Oxford University Press, Ninth Edition, 2006), Chapter 16 Free movement of payments and capital (pages 344-354)
Paul Craig and Gráinne de Búrca: EU Law, Text, Cases, and Materials (Oxford University Press, Fourth Edition, 2007), page 723 to 727 in Chapter 20 Free movement of capital and economic and monetary union
Then a few web resources:
The Commission’s introductory web page ‘Free movement of capital’ offers a quick overview and additional links (last updated 30 May 2007):
http://ec.europa.eu/internal_market/capital/index_en.htm
The web page ‘Treaty provisions’ presents the basic rules and further links (last update 27 August 2007):
http://ec.europa.eu/internal_market/capital/framework/treaty_en.htm
The European Parliament fact sheet 3.2.4 ‘Free movement of capital’ is an alternative presentation of the basics (last updated 25 October 2006):
http://www.europarl.europa.eu/facts/3_2_4_en.htm
The Commission’s Scadplus pages offer summaries or links to introductory pages on European Community legislation. In this case the starting point could be the web page ‘Single market for capital’ with more than thirty links on different aspects (no date):
http://europa.eu/scadplus/leg/en/s70001.htm
EU Law Blog has three posts on recent ECJ cases archived under ‘Capital: Free movement’:
http://eulaw.typepad.com/eulawblog/free_movement_of_capital/index.html
An example of the Court of Justice’s reasoning about the relationship between the provision of services and free movement of capital is Case C-452/04:
http://curia.europa.eu/jurisp/cgi-bin/gettext.pl?where=&lang=en&num=79938996C19040452&doc=T&ouvert=T&seance=ARRET
Ralf Grahn
***
We move to a Chapter 4 ‘Capital and payments’. Article 63 of the Treaty on the Functioning of the European Union (TFEU), is presented as amended by the intergovernmental conference (IGC 2007) in the Treaty of Lisbon (ToL) and provisionally consolidated by the Council of the European Union (document 6655/08; page 93), with the location of the provision added from the table of equivalences (page 460 to 462):
Part Three ‘Policies and internal actions of the Union’
Title IV TFEU ‘Free movement of persons, services and capital’
Chapter 4 ‘Capital and payments’
Article 63 TFEU
(ex Article 56 TEC)
1. Within the framework of the provisions set out in this Chapter, all restrictions on the movement of capital between Member States and between Member States and third countries shall be prohibited.
2. Within the framework of the provisions set out in this Chapter, all restrictions on payments between Member States and between Member States and third countries shall be prohibited.
***
The IGC 2007 made no specific amendment to Article 56 TEC. Cf. OJ 17.12.2007 C 306/55. The provision is only renumbered.
***
The current key provision on capital and payments, Article 56 TEC, is found in the latest consolidated version of the treaties, OJ 29.12.2006 C 321 E/63.
***
The European Convention preferred a shorter version of the opening provision of Section 4 ‘Capital and payments’ in the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/34):
SECTION 4
Capital and payments
Article III-45 Draft Constitution
Within the framework of this Section, restrictions both on the movement of capital and on payments between Member States and between Member States and third countries shall be prohibited.
***
The IGC 2004 adopted the wording of the draft in Article III-156 of the Treaty establishing a Constitution for Europe (OJ 16.12.2004 C 310/66).
***
We see that no substantial change has been adopted during the various stages of the treaty reform process after the Treaty of Nice, but the wording proposed by the European Convention and agreed by the IGC 2004 would arguably have been more elegant.
In this, as in many other cases, the IGC 2007 decided to save ink by preserving the current wording when the reasons for change would have been purely aesthetic.
***
Some suggestions for further reading, first two standard books:
Josephine Steiner, Lorna Woods and Christian Twigg-Flesner: EU Law (Oxford University Press, Ninth Edition, 2006), Chapter 16 Free movement of payments and capital (pages 344-354)
Paul Craig and Gráinne de Búrca: EU Law, Text, Cases, and Materials (Oxford University Press, Fourth Edition, 2007), page 723 to 727 in Chapter 20 Free movement of capital and economic and monetary union
Then a few web resources:
The Commission’s introductory web page ‘Free movement of capital’ offers a quick overview and additional links (last updated 30 May 2007):
http://ec.europa.eu/internal_market/capital/index_en.htm
The web page ‘Treaty provisions’ presents the basic rules and further links (last update 27 August 2007):
http://ec.europa.eu/internal_market/capital/framework/treaty_en.htm
The European Parliament fact sheet 3.2.4 ‘Free movement of capital’ is an alternative presentation of the basics (last updated 25 October 2006):
http://www.europarl.europa.eu/facts/3_2_4_en.htm
The Commission’s Scadplus pages offer summaries or links to introductory pages on European Community legislation. In this case the starting point could be the web page ‘Single market for capital’ with more than thirty links on different aspects (no date):
http://europa.eu/scadplus/leg/en/s70001.htm
EU Law Blog has three posts on recent ECJ cases archived under ‘Capital: Free movement’:
http://eulaw.typepad.com/eulawblog/free_movement_of_capital/index.html
An example of the Court of Justice’s reasoning about the relationship between the provision of services and free movement of capital is Case C-452/04:
http://curia.europa.eu/jurisp/cgi-bin/gettext.pl?where=&lang=en&num=79938996C19040452&doc=T&ouvert=T&seance=ARRET
Ralf Grahn
Thursday, 17 April 2008
EU TFEU: Common rules for services and establishment
The free movement of services shares many rules concerning the right of establishment in the Treaty on the Functioning of the European Union, as it does in the current Treaty establishing the European Community.
The pattern of this post is modified to take into account the publication of the consolidated Treaty of Lisbon, published 16 April 2008 by the Council of the European Union in the 23 treaty languages.
***
This is Article 62 of the Treaty on the Functioning of the European Union (TFEU), as amended by the intergovernmental conference (IGC 2007) in the Treaty of Lisbon (ToL) and consolidated by the Council of the European Union (document 6655/08; page 93), with the location of the provision added from the table of equivalences:
Part Three ‘Policies and internal actions of the Union’
Title IV TFEU ‘Free movement of persons, services and capital’
Chapter 3 ‘Services’
Article 62 TFEU
(ex Article 55 TEC)
The provisions of Articles 51 to 54 shall apply to the matters covered by this Chapter.
***
The IGC 2007 made no specific amendments to Article 55 TEC, but the provision and its referrals are renumbered. Cf. OJ 17.12.2007 C 306/55.
***
For the convenience of those who want to use the current TEC, we present the provision with the ones it refers to (from the latest consolidated version of the existing treaties, OJ 29.12.2006 C 321 E/63):
Article 55 TEC
The provisions of Articles 45 to 48 shall apply to the matters covered by this Chapter.
***
Article III-35 of the draft Treaty establishing a Constitution for Europe was essentially the same (OJ 18.7.2003 C 169/33):
Article III-35 Draft Constitution
Articles III-24 to III-27 shall apply to the matters covered by this Subsection.
***
Article III-150 of the Treaty establishing a Constitution for Europe followed the draft in style (OJ 16.12.2004 C 310/64):
Article III-150
Articles III-139 to III-142 shall apply to the matters covered by this Subsection.
***
No material change has been proposed during the reform cycle from the European Convention to the Treaty of Lisbon.
We have reached the last provision of Chapter 3 ‘Services’ in order to find out that we are told to go back to Articles 51 to 54 TFEU in Chapter 2 ‘Right of establishment’ to get things right.
With those readers in mind, who do not have the amended provisions at hand, we present the texts here (TFEU consolidation, pages 89 and 90):
Article 51 TFEU
(ex Article 45 TEC)
The provisions of this Chapter shall not apply, so far as any given Member State is concerned, to activities which in that State are connected, even occasionally, with the exercise of official authority.
The European Parliament and the Council, acting in accordance with the ordinary legislative procedure, may rule that the provisions of this Chapter shall not apply to certain activities.
Article 52 TFEU
(ex Article 46 TEC)
1. The provisions of this Chapter and measures taken in pursuance thereof shall not prejudice the applicability of provisions laid down by law, regulation or administrative action providing for special treatment for foreign nationals on grounds of public policy, public security or public health.
2. The European Parliament and the Council shall, acting in accordance with the ordinary legislative procedure, issue directives for the coordination of the abovementioned provisions.
Article 53 TFEU
(ex Article 47 TEC)
1. In order to make it easier for persons to take up and pursue activities as self-employed persons, the European Parliament and the Council shall, acting in accordance with the ordinary legislative procedure, issue directives for the mutual recognition of diplomas, certificates and other evidence of formal qualifications and for the coordination of the provisions laid down by law, regulation or administrative action in Member States concerning the taking-up and pursuit of activities as self-employed persons.
2. In the case of the medical and allied and pharmaceutical professions, the progressive abolition of restrictions shall be dependent upon coordination of the conditions for their exercise in the various Member States.
Article 54 TFEU
(ex 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 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.
***
We see that some of the derogations (exceptions) from the right of establishment apply to the free movement of services: the exercise of public authority and the grounds of public policy, public security or public health.
There are legal bases for legislation and there is the principle of equal treatment of companies.
For a closer look, se for instance Chapter 22 ‘Freedom of establishment and to provide services’ in Paul Craig and Gráinne de Búrca: EU Law, Text, Cases, and Materials (Oxford University Press, 4th Edition, 2007).
Ralf Grahn
The pattern of this post is modified to take into account the publication of the consolidated Treaty of Lisbon, published 16 April 2008 by the Council of the European Union in the 23 treaty languages.
***
This is Article 62 of the Treaty on the Functioning of the European Union (TFEU), as amended by the intergovernmental conference (IGC 2007) in the Treaty of Lisbon (ToL) and consolidated by the Council of the European Union (document 6655/08; page 93), with the location of the provision added from the table of equivalences:
Part Three ‘Policies and internal actions of the Union’
Title IV TFEU ‘Free movement of persons, services and capital’
Chapter 3 ‘Services’
Article 62 TFEU
(ex Article 55 TEC)
The provisions of Articles 51 to 54 shall apply to the matters covered by this Chapter.
***
The IGC 2007 made no specific amendments to Article 55 TEC, but the provision and its referrals are renumbered. Cf. OJ 17.12.2007 C 306/55.
***
For the convenience of those who want to use the current TEC, we present the provision with the ones it refers to (from the latest consolidated version of the existing treaties, OJ 29.12.2006 C 321 E/63):
Article 55 TEC
The provisions of Articles 45 to 48 shall apply to the matters covered by this Chapter.
***
Article III-35 of the draft Treaty establishing a Constitution for Europe was essentially the same (OJ 18.7.2003 C 169/33):
Article III-35 Draft Constitution
Articles III-24 to III-27 shall apply to the matters covered by this Subsection.
***
Article III-150 of the Treaty establishing a Constitution for Europe followed the draft in style (OJ 16.12.2004 C 310/64):
Article III-150
Articles III-139 to III-142 shall apply to the matters covered by this Subsection.
***
No material change has been proposed during the reform cycle from the European Convention to the Treaty of Lisbon.
We have reached the last provision of Chapter 3 ‘Services’ in order to find out that we are told to go back to Articles 51 to 54 TFEU in Chapter 2 ‘Right of establishment’ to get things right.
With those readers in mind, who do not have the amended provisions at hand, we present the texts here (TFEU consolidation, pages 89 and 90):
Article 51 TFEU
(ex Article 45 TEC)
The provisions of this Chapter shall not apply, so far as any given Member State is concerned, to activities which in that State are connected, even occasionally, with the exercise of official authority.
The European Parliament and the Council, acting in accordance with the ordinary legislative procedure, may rule that the provisions of this Chapter shall not apply to certain activities.
Article 52 TFEU
(ex Article 46 TEC)
1. The provisions of this Chapter and measures taken in pursuance thereof shall not prejudice the applicability of provisions laid down by law, regulation or administrative action providing for special treatment for foreign nationals on grounds of public policy, public security or public health.
2. The European Parliament and the Council shall, acting in accordance with the ordinary legislative procedure, issue directives for the coordination of the abovementioned provisions.
Article 53 TFEU
(ex Article 47 TEC)
1. In order to make it easier for persons to take up and pursue activities as self-employed persons, the European Parliament and the Council shall, acting in accordance with the ordinary legislative procedure, issue directives for the mutual recognition of diplomas, certificates and other evidence of formal qualifications and for the coordination of the provisions laid down by law, regulation or administrative action in Member States concerning the taking-up and pursuit of activities as self-employed persons.
2. In the case of the medical and allied and pharmaceutical professions, the progressive abolition of restrictions shall be dependent upon coordination of the conditions for their exercise in the various Member States.
Article 54 TFEU
(ex 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 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.
***
We see that some of the derogations (exceptions) from the right of establishment apply to the free movement of services: the exercise of public authority and the grounds of public policy, public security or public health.
There are legal bases for legislation and there is the principle of equal treatment of companies.
For a closer look, se for instance Chapter 22 ‘Freedom of establishment and to provide services’ in Paul Craig and Gráinne de Búrca: EU Law, Text, Cases, and Materials (Oxford University Press, 4th Edition, 2007).
Ralf Grahn
EU: Consolidated Lisbon Treaty and beyond
Yesterday marked a great step forward for practical equality between citizens of the European Union. Formally, the principle of equal treatment applied as long as the Council published no consolidated language versions of the Treaty of Lisbon.
But in practice national consolidations were available only in a number of languages. As far as we were able to ascertain, there were readable versions in most of the widely spoken languages within the European Union.
These are rough guesses, because we can not be sure that the information we managed to gather was conclusive: Perhaps six out of ten EU citizens could find a readable version of the Lisbon Treaty in their own language, but a consolidated version was available in less than half of the treaty languages.
By finally publishing the Treaty of Lisbon in the 23 treaty languages, the Council filled a considerable void. Millions of European citizens can now read, debate, study and teach the amending treaties in their main language without unnecessary trouble.
***
The Council of the European Union issued a note to the reader stating that the publication is ‘provisional in nature’. If errors crop up during the ratification stage, these have to be corrected (Council cover note, document 6655/08).
***
What about this blog?
My aim has been to advance through the treaties as they stand if the Treaty of Lisbon enters into force. Until now it has been possible to progress one Article a day, without exceptions, and hopefully this can continue.
Even if this blog is written in English, something changes when readers with another main language can refer to a consolidated version in their own language.
Somehow, I feel that it would be natural to outline the future posts a little differently from now on. These thoughts are ‘provisional in nature’, so tell me if you have ideas:
First, the basic element would be “a slice of salami”, one treaty Article (a day) as consolidated. This means that redundant or fairly insignificant provisions are treated as well, at least superficially. A headline, more or less accurate, may help you to find what you are looking for.
Second, a look at the possible changes made by the intergovernmental conference would follow. Most of the internal policy areas remain largely unchanged, but that does not prevent anyone from trying to understand the treaty provisions the policies are based on.
Third, the preceding treaty reform stages, namely the current treaty, the draft Constitution and the Constitutional Treaty, would be presented either through comments or by offering the text of the provision.
Fourth, depending on the circumstances there may be more or less objective comments, subjective opinions or suggestions for further reading (in the general area under study).
***
This is how the next leg of the journey looks like, after the publication of the consolidated Lisbon Treaty in the 23 treaty languages.
Ralf Grahn
But in practice national consolidations were available only in a number of languages. As far as we were able to ascertain, there were readable versions in most of the widely spoken languages within the European Union.
These are rough guesses, because we can not be sure that the information we managed to gather was conclusive: Perhaps six out of ten EU citizens could find a readable version of the Lisbon Treaty in their own language, but a consolidated version was available in less than half of the treaty languages.
By finally publishing the Treaty of Lisbon in the 23 treaty languages, the Council filled a considerable void. Millions of European citizens can now read, debate, study and teach the amending treaties in their main language without unnecessary trouble.
***
The Council of the European Union issued a note to the reader stating that the publication is ‘provisional in nature’. If errors crop up during the ratification stage, these have to be corrected (Council cover note, document 6655/08).
***
What about this blog?
My aim has been to advance through the treaties as they stand if the Treaty of Lisbon enters into force. Until now it has been possible to progress one Article a day, without exceptions, and hopefully this can continue.
Even if this blog is written in English, something changes when readers with another main language can refer to a consolidated version in their own language.
Somehow, I feel that it would be natural to outline the future posts a little differently from now on. These thoughts are ‘provisional in nature’, so tell me if you have ideas:
First, the basic element would be “a slice of salami”, one treaty Article (a day) as consolidated. This means that redundant or fairly insignificant provisions are treated as well, at least superficially. A headline, more or less accurate, may help you to find what you are looking for.
Second, a look at the possible changes made by the intergovernmental conference would follow. Most of the internal policy areas remain largely unchanged, but that does not prevent anyone from trying to understand the treaty provisions the policies are based on.
Third, the preceding treaty reform stages, namely the current treaty, the draft Constitution and the Constitutional Treaty, would be presented either through comments or by offering the text of the provision.
Fourth, depending on the circumstances there may be more or less objective comments, subjective opinions or suggestions for further reading (in the general area under study).
***
This is how the next leg of the journey looks like, after the publication of the consolidated Lisbon Treaty in the 23 treaty languages.
Ralf Grahn
Wednesday, 16 April 2008
Consolidated EU Lisbon Treaty in 23 languages
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.
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.
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
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